THE NEW YORK TIMES  --  2004

nyt_digest_2004.txt

http://www.nytimes.com

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November 30, 2004

RED CROSS FINDS DETAINEE ABUSE IN GUANTANAMO

By Neil A. Lewis

http://www.nytimes.com/2004/11/30/politics/30gitmo.html?oref=login

WASHINGTON, Nov. 29 - The International Committee of the Red Cross has charged
in confidential reports to the United States government that the American
military has intentionally used psychological and sometimes physical coercion
"tantamount to torture" on prisoners at Guantanamo Bay, Cuba.

The finding that the handling of prisoners detained and interrogated at
Guantanamo amounted to torture came after a visit by a Red Cross inspection team
that spent most of last June in Guantanamo.

The team of humanitarian workers, which included experienced medical personnel,
also asserted that some doctors and other medical workers at Guantanamo were
participating in planning for interrogations, in what the report called "a
flagrant violation of medical ethics."

Doctors and medical personnel conveyed information about prisoners' mental
health and vulnerabilities to interrogators, the report said, sometimes
directly, but usually through a group called the Behavioral Science Consultation
Team, or B.S.C.T. The team, known informally as Biscuit, is composed of
psychologists and psychological workers who advise the interrogators, the report
said.

The United States government, which received the report in July, sharply
rejected its charges, administration and military officials said.

The report was distributed to lawyers at the White House, Pentagon and State
Department and to the commander of the detention facility at Guantanamo, Gen.
Jay W. Hood. The New York Times recently obtained a memorandum, based on the
report, that quotes from it in detail and lists its major findings.

It was the first time that the Red Cross, which has been conducting visits to
Guantanamo since January 2002, asserted in such strong terms that the treatment
of detainees, both physical and psychological, amounted to torture. The report
said that another confidential report in January 2003, which has never been
disclosed, raised questions of whether "psychological torture" was taking place.

The Red Cross said publicly 13 months ago that the system of keeping detainees
indefinitely without allowing them to know their fates was unacceptable and
would lead to mental health problems.

The report of the June visit said investigators had found a system devised to
break the will of the prisoners at Guantanamo, who now number about 550, and
make them wholly dependent on their interrogators through "humiliating acts,
solitary confinement, temperature extremes, use of forced positions."
Investigators said that the methods used were increasingly "more refined and
repressive" than learned about on previous visits.

"The construction of such a system, whose stated purpose is the production of
intelligence, cannot be considered other than an intentional system of cruel,
unusual and degrading treatment and a form of torture," the report said. It said
that in addition to the exposure to loud and persistent noise and music and to
prolonged cold, detainees were subjected to "some beatings." The report did not
say how many of the detainees were subjected to such treatment.

Asked about the accusations in the report, a Pentagon spokesman provided a
statement saying, "The United States operates a safe, humane and professional
detention operation at Guantanamo that is providing valuable information in the
war on terrorism."

It continued that personnel assigned to Guantanamo "go through extensive
professional and sensitivity training to ensure they understand the procedures
for protecting the rights and dignity of detainees."

The conclusions by the inspection team, especially the findings involving
alleged complicity in mistreatment by medical professionals, have provoked a
stormy debate within the Red Cross committee. Some officials have argued that it
should make its concerns public or at least aggressively confront the Bush
administration.

The International Committee of the Red Cross, which is based in Geneva and is
separate from the American Red Cross, was founded in 1863 as an independent,
neutral organization intended to provide humanitarian protection and assistance
for victims of war.

Its officials are able to visit prisoners at Guantanamo under the kind of
arrangement the committee has made with governments for decades. In exchange for
exclusive access to the prison camp and meetings with detainees, the committee
has agreed to keep its findings confidential. The findings are shared only with
the government that is detaining people.

Beatrice Megevand-Roggo, a senior Red Cross official, said in an interview that
she could not say anything about information relayed to the United States
government because "we do not comment in any way on the substance of the reports
we submit to the authorities."

Ms. Megevand-Roggo, the committee's delegate-general for Europe and the
Americas, acknowledged that the issue of confidentiality was a chronic and
vexing one for the organization. "Many people do not understand why we have
these bilateral agreements about confidentiality," she said. "People are led to
believe that we are a fig leaf or worse, that we are complicit with the
detaining authorities."

She added, "It's a daily dilemma for us to put in the balance the positive
effects our visits have for detainees against the confidentiality."

Antonella Notari, a veteran Red Cross official and spokeswoman, said that the
organization frequently complained to the Pentagon and other arms of the
American government when government officials cite the Red Cross visits to
suggest that there is no abuse at Guantanamo. Most statements from the Pentagon
in response to queries about mistreatment at Guantanamo do, in fact, include
mention of the visits.

In a recent interview with reporters, General Hood, the commander of the
detention and interrogation facility at Guantanamo, also cited the committee's
visits in response to questions about treatment of detainees. "We take
everything the Red Cross gives us and study it very carefully to look for ways
to do our job better," he said in his Guantanamo headquarters, adding that he
agrees "with some things and not others."

"I'm satisfied that the detainees here have not been abused, they've not been
mistreated, they've not been tortured in any way," he said.

Scott Horton, a New York lawyer, who is familiar with some of the Red Cross's
views, said the issue of medical ethics at Guantanamo had produced "a tremendous
controversy in the committee." He said that some Red Cross officials believed it
was important to maintain confidentiality while others believed the United
States government was misrepresenting the inspections and using them to counter
criticisms.

Mr. Horton, who heads the human rights committee of the Bar Association of the
City of New York, said the Red Cross committee was considering whether to bring
more senior officials to Washington and whether to make public its criticisms.

The report from the June visit said the Red Cross team found a far greater
incidence of mental illness produced by stress than did American medical
authorities, much of it caused by prolonged solitary confinement. It said the
medical files of detainees were "literally open" to interrogators.

The report said the Biscuit team met regularly with the medical staff to discuss
the medical situations of detainees. At other times, interrogators sometimes
went directly to members of the medical staff to learn about detainees'
conditions, it said.

The report said that such "apparent integration of access to medical care within
the system of coercion" meant that inmates were not cooperating with doctors.
Inmates learn from their interrogators that they have knowledge of their medical
histories and the result is that the prisoners no longer trust the doctors.

Asked for a response, the Pentagon issued a statement saying, "The allegation
that detainee medical files were used to harm detainees is false." The statement
said that the detainees were "enemy combatants who were fighting against U.S.
and coalition forces."

"It's important to understand that when enemy combatants were first detained on
the battlefield, they did not have any medical records in their possession," the
statement continued. "The detainees had a wide range of pre-existing health
issues including battlefield injuries."

The Pentagon also said the medical care given detainees was first-rate. Although
the Red Cross criticized the lack of confidentiality, it agreed in the report
that the medical care was of high quality.

Leonard S. Rubenstein, the executive director of Physicians for Human Rights,
was asked to comment on the account of the Red Cross report, and said, "The use
of medical personnel to facilitate abusive interrogations places them in an
untenable position and violates international ethical standards."

Mr. Rubenstein added, "We need to know more about these practices, including
whether health professionals engaged in calibrating levels of pain inflicted on
detainees."

The issue of whether torture at Guantanamo was condoned or encouraged has been a
problem before for the Bush administration.

In February 2002, President Bush ordered that the prisoners at Guantanamo be
treated "humanely and, to the extent appropriate with military necessity, in a
manner consistent with" the Geneva Conventions. That statement masked a roiling
legal discussion within the administration as government lawyers wrote a series
of memorandums, many of which seemed to justify harsh and coercive treatment.

A month after Mr. Bush's public statement, a team of administration lawyers
accepted a view first advocated by the Justice Department that the president had
wide powers in authorizing coercive treatment of detainees. The legal team in a
memorandum concluded that Mr. Bush was not bound by either the international
Convention Against Torture or a federal antitorture statute because he had the
authority to protect the nation from terrorism.

That document provides tightly constructed definitions of torture. For example,
if an interrogator "knows that severe pain will result from his actions, if
causing such harm is not his objective, he lacks the requisite specific intent
even though the defendant did not act in good faith," it said. "Instead, a
defendant is guilty of torture only if he acts with the express purpose of
inflicting severe pain or suffering on a person within his control."

When some administration memorandums about coercive treatment or torture were
disclosed, the White House said they were only advisory.

Last month, military guards, intelligence agents and others described in
interviews with The Times a range of procedures that they said were highly
abusive occurring over a long period, as well as rewards for prisoners who
cooperated with interrogators. The people who worked at Camp Delta, the main
prison facility, said that one regular procedure was making uncooperative
prisoners strip to their underwear, having them sit in a chair while shackled
hand and foot to a bolt in the floor, and forcing them to endure strobe lights
and loud rock and rap music played through two close loudspeakers, while the
air-conditioning was turned up to maximum levels.

Some accounts of techniques at Guantanamo have been easy to dismiss because they
seemed so implausible. The most striking of the accusations, which have come
mainly from a group of detainees released to their native Britain, has been that
the military used prostitutes who made coarse comments and come-ons to taunt
some prisoners who are Muslims.

But the Red Cross report hints strongly at an explanation of some of those
accusations by stating that there were frequent complaints by prisoners in 2003
that some of the female interrogators baited their subjects with sexual
overtures.

Gen. Geoffrey Miller, who commanded the detention and intelligence operation at
Guantanamo until April, when he took over prison operations in Iraq, said in an
interview early this year about general interrogation procedures that the female
interrogators had proved to be among the most effective. General Miller's
observation matches common wisdom among experienced intelligence officers that
women may be effective as interrogators when seen by their subjects as mothers
or sisters. Sexual taunting does not, however, comport with what is often
referred to as the "mother-sister syndrome."

But the Red Cross report said that complaints about the practice of sexual
taunting stopped in the last year. Guantanamo officials have acknowledged that
they have improved their techniques and that some earlier methods they tried
proved to be ineffective, raising the possibility that the sexual taunting was
an experiment that was abandoned.

* * *


November 11, 2004

BUSH NOMINATES HIS TOP COUNSEL FOR JUSTICE POST

By David E. Sanger and Eric Lichtblau

http://www.nytimes.com/2004/11/11/politics/11justice.html

WASHINGTON, Nov. 10 - President Bush on Wednesday nominated Alberto R. Gonzales,
the White House counsel and a longtime political loyalist, to be his next
attorney general.

The speed with which Mr. Bush acted, only a day after making public the
resignation of John Ashcroft, indicated that the president wants to get his new
appointees in place before the start of his second term, 10 weeks from now. The
nomination of Mr. Gonzales would also put one of his most trusted aides in a
post where past presidents have wanted to have a confidant, as well as someone
who can help defend the White House, much as John F. Kennedy chose his brother
Robert, or Ronald Reagan chose Edwin Meese III.

Mr. Bush said of Mr. Gonzales in a brief announcement in the Roosevelt Room of
the White House: "His sharp intellect and sound judgment have helped shape our
policies on the war on terror, policies designed to protect the security of all
Americans while protecting the rights of all Americans. He is a calm and steady
voice at times of crisis."

If confirmed, Mr. Gonzales will be the first Hispanic ever to serve as the
nation's most senior law enforcement officer.

The choice was immediately embraced by Senate Republicans, who promised speedy
action on the nominee. But Senate Democrats appear eager to question Mr.
Gonzales, who is considered more conservative than several other leading
candidates for the attorney general's job. Issues almost certain to come up in
his confirmation hearings include his stances on terrorism and civil liberties;
the treatment of detainees in Iraq and Guantanamo Bay; the antiterrorism law
known as the USA Patriot Act, passed in the days after the Sept. 11 attacks;
abortion; the death penalty; and other potentially contentious issues.

Senator Edward M. Kennedy of Massachusetts, a leading Democrat on law
enforcement and judicial issues, said he was "concerned about aspects of his
record as White House counsel that raise doubts about his commitment to the rule
of law."

Even before the announcement, civil liberties and human rights groups began
recirculating copies of drafts of memorandums Mr. Gonzales or his aides wrote,
including one from January 2002, advising Mr. Bush that the "nature of the new
war" on terror "renders obsolete Geneva's strict limitations on questioning of
enemy prisoners and renders quaint some of its provisions."

Many civil rights groups on Wednesday were quick to attack Mr. Gonzales for what
they saw as legal policies and opinions that opened the door to the mistreatment
of Iraqi prisoners at Abu Ghraib. Critics of Mr. Gonzales argue that such logic
put military and intelligence officials on the path to the abuses at Abu Ghraib,
even though the White House had previously insisted that the Geneva conventions
applied to detainees. Mr. Gonzales has denied a link between those memorandums
and the abuses. Yet the issue seems bound to be explored, and Anthony Romero,
head of the American Civil Liberties Union, said the 2002 memorandum "will be
the single toughest issue for him, because there's actually a paper trail."

Mr. Bush spoke emotionally of Mr. Gonzales's background as the son of migrant
workers, and of his confidence in an old friend who has been at his side since
1995, when Mr. Gonzales came to the Texas state house to help the newly elected
governor as his top legal counselor. At the White House, the nominee is known as
"Judge Gonzales" in the White House because of his post on the Texas Supreme
Court before coming to Washington with Mr. Bush four years ago.

While the selection of Mr. Gonzales as attorney general may create a public
fight, some Senate Democrats said they might want to save their heavy ammunition
for what is expected to be a battle over possible Supreme Court nominees rather
than expending it on what is likely to be a losing cause for attorney general.

For months, there has been speculation in Washington that Mr. Gonzales would be
selected to fill any vacancy on the Supreme Court. White House officials said he
preferred the attorney general's job, and Republicans close to the White House
said there was no reason he might not be nominated to the court later in Mr.
Bush's term.

A court appointment, senior Republicans said, could have prompted a more intense
confirmation fight, especially because some conservatives regard Mr. Gonzales as
too moderate on the question of abortion and not sufficiently hardline in
opposing affirmative action.

Then again, Mr. Bush's nomination of Mr. Ashcroft for attorney general in 2000
was also expected to gain confirmation relatively smoothly, but the 58-to-42
vote was the closest for the position in decades.

Some reaction to the nomination suggested that the shadow of Mr. Ashcroft, whose
resignation was announced Tuesday after a four-year term that won him admirers
as well as enemies, could work to the advantage of Mr. Gonzales.

"I think he's a pretty solid guy," Senator Joseph R. Biden Jr., Democrat of
Delaware, said of Mr. Gonzales. "If you had said to me six months ago I can have
Gonzales or Ashcroft, it wouldn't have been a hard choice."

Republicans and Democrats said there was little reason to think that Mr.
Gonzales, as a longtime insider at the White House, would take the Justice
Department on a path dramatically different from that of Mr. Ashcroft on issues
like terrorism, white-collar crime, gun enforcement, judicial nominees or civil
rights.

"There's a feeling that Gonzales is less confrontational that John Ashcroft and
he at least tries to reach out," Senator Charles E. Schumer, Democrat of New
York, said in an interview. "His style is not to throw down the gauntlet. So the
White House has taken a step back from the red-hot confrontation that Ashcroft
embodied, but we don't know how big a step back."

Mr. Ashcroft had a sometimes tense and distant relationship with the White
House, in contrast to Mr. Gonzales's place as a close confidant to the
president.

As White House counsel, Mr. Gonzales took on much broader powers than many of
his predecessors in formulating legal policy and tactics, a role that supporters
said should position him well to act as the nation's top law enforcement
official.

Some legal analysts said Mr. Gonzales's relationship with Mr. Bush reminded them
of the Justice Department reigns of Robert Kennedy, who served as attorney
general under his brother, John F. Kennedy, and of Mr. Meese, who was a White
House counselor and close adviser to Ronald Reagan.

Every attorney general ultimately answers to the president, but historically,
some have seen themselves largely as extensions of the White House, while others
were more willing to try and insulate themselves from political pressures. Most
famously, Elliot Richardson resigned in 1973 after refusing to fire the
Watergate special prosecutor, Archibald Cox.

"A quasi-independence is something that historically has been valued at the
Justice Department," said Elliott Mincberg, legal director for People for the
American Way, a liberal group that raised concerns about Mr. Gonzales's
nomination. "With Gonzales at the Justice Department, it raises the question of
his willingness and ability to be independent and to shift to a very different
role than he had at the White House."

Republican leaders described Mr. Gonzales as an able steward for the
administration's legal policies. Bill Frist, the Senate majority leader, said he
had "lived the American Dream - from humble roots as the son of migrant workers
who never finished elementary school to be nominated by the president of the
United States as the first Hispanic American attorney general."

Mr. Bush also met Wednesday with Secretary of State Colin L. Powell, who is
rumored to be looking to leave the administration, though perhaps not for
several months. The president ducked a question about Mr. Powell's future,
telling reporters in the Oval Office today, "I'm proud of my secretary of state
- he's done a heck of a good job."

But he said nothing about Mr. Powell's future, just as he has been studiously
silent about what may happen to another of his closest advisers, Condoleezza
Rice, the national security adviser. Ms. Rice and John Danforth, the ambassador
to the United Nations, are considered two of the leading candidates to replace
Mr. Powell if he departs, but in the past Ms. Rice has suggested that she would
be impatient with the diplomatic formalities and constant travel of the job.

Asked on Wednesday about the speculation about Mr. Powell's future, Richard
Boucher, the state department spokesman, said, "The only voices that matter are
the president and the secretary, and they don't have anything to say or
speculate right now."

* * *


November 9, 2004

US JUDGE HALTS WAR-CRIME TRIAL AT GUANTANAMO

By Neil A. Lewis

http://www.nytimes.com/2004/11/09/politics/09gitmo.html

GUANTANAMO BAY, Cuba, Nov. 8 - A federal judge ruled Monday that President Bush
had both overstepped his constitutional bounds and improperly brushed aside the
Geneva Conventions in establishing military commissions to try detainees at the
United States naval base here as war criminals.

The ruling by Judge James Robertson of United States District Court in
Washington brought an abrupt halt to the trial here of one detainee, one of
hundreds being held at Guantanamo as enemy combatants. It threw into doubt the
future of the first set of United States military commission trials since the
end of World War II as well as other legal proceedings devised by the
administration to deal with suspected terrorists.

The administration reacted quickly, saying it would seek an emergency stay and a
quick appeal.

Judge Robertson ruled against the government in the case of Salim Ahmed Hamdan,
a former driver for Osama bin Laden in Afghanistan who is facing terrorism
charges. Mr. Hamdan's lawyers had asked the court to declare the military
commission process fatally flawed.

The ruling and its timing had a theatrical effect on the courtroom here where
pretrial proceedings were under way with Mr. Hamdan, a 34-year-old Yemeni in a
flowing white robe, seated next to his lawyers.

About 30 minutes into the afternoon proceedings, the presiding officer, Col.
Peter S. Brownback III, was handed a note from a Marine sergeant. Colonel
Brownback immediately called a recess and rushed from the room with the
commission's two other officers. When he returned, he announced that the
proceeding was in recess indefinitely and he departed quickly.

Neal K. Katyal, a Georgetown Law School professor who is one of Mr. Hamdan's
lawyers and who supervised the federal lawsuit, told the puzzled courtroom
audience, "We won."

Mark Corallo, a Justice Department spokesman, said in a statement, "The process
struck down by the district court today was carefully crafted to protect America
from terrorists while affording those charged with violations of the laws of war
with fair process, and the department will make every effort to have this
process restored through appeal."

Mr. Corallo said, "By conferring protected legal status under the Geneva
Conventions on members of Al Qaeda, the judge has put terrorism on the same
legal footing as legitimate methods of waging war."

Judge Robertson ruled that the administration could not under current
circumstances try Mr. Hamdan before the military commissions set up shortly
after the Sept. 11 terrorist attacks but could only bring him before a court-
martial, where different rules of evidence apply.

In the 45-page ruling, the judge said the administration had ignored a basic
provision of the Geneva Conventions, the international treaties signed by the
United States that form the basic elements of the laws governing the conduct of
war.

The conventions oblige the United States to treat Mr. Hamdan as a prisoner of
war, the judge said , unless he goes before a special tribunal described in
Article 5 of the Third Geneva Convention that determines he is not. A P.O.W. is
entitled to a court-martial if there are accusations of war crimes but may not
be tried before a military commission.

The United States military did not conduct Article 5 tribunals at the end of the
Afghanistan war, saying they were unnecessary. Government lawyers argued that
the president had already used his authority to deem members of Al Qaeda
unlawful combatants who would be deprived of P.O.W. status.

But Judge Robertson, who was nominated to be on the court by President Bill
Clinton, said that that was not enough. "The president is not a panel," he
wrote. "The law of war includes the Third Geneva Convention, which requires
trial by court-martial as long as Hamdan's P.O.W. status is in doubt."

The government is in the midst of conducting a separate set of tribunals here at
Guantanamo, similar to those required by the Geneva Conventions, to determine
whether detainees were properly deemed unlawful enemy combatants. Those
proceedings, called combatant status review tribunals, were quickly put into
place by the Bush administration after the Supreme Court's ruling in June that
the Guantanamo prisoners were entitled to challenge their detentions in federal
court. Judge Robertson said, however, that those tribunals were not designed to
satisfy the Geneva Convention requirement and were insufficient.

The ruling on Monday may also make those tribunals obsolete, but Scott L.
Silliman, professor of military law at Duke University, said the military might
modify them to fit the Geneva Convention requirements.

The judge also said that in asserting that the Guantanamo prisoners are unlawful
combatants and outside the reach of the Geneva Conventions, "the government has
asserted a position starkly different from the positions and behavior of the
United States in previous conflicts, one that can only weaken the United States'
own ability to demand application of the Geneva applications to Americans
captured during armed conflicts abroad."

Professor Katyal told reporters that while the ruling on Monday applied only to
the Hamdan case, "the spirit of the ruling extends more broadly, perhaps to
everything that is going on here in Guantanamo Bay."

Mr. Hamdan is one of about 63 Guantanamo detainees on whose behalf lawsuits have
been filed in federal court. The lawsuits consist of habeas corpus petitions, in
which people may demand that the government provide some explanation as to why
they are imprisoned.

Critics have said that the military commissions fall short of the rights that
defendants have in courts-martial in two respects. But Judge Robertson said that
one of those reasons, the inability to appeal to the federal judiciary, was not
a serious problem. The principal problem, he said, was that defendants before
commissions did not have a fair opportunity to respond to charges because some
of the evidence was classified and would be withheld. He said that no American
court could approve of any proceeding that had such a glaring lack of the right
to confront one's accusers and the evidence.

Stephen Saltzburg, a professor at the George Washington University Law School,
said it was inevitable that a federal judge somewhere would find fault with the
administration's approach "that you can keep people locked up for two and three
years and you still don't really know who they are and why we're keeping them."

Professor Saltzburg also said the ruling could set up a sharp confrontation
between the judiciary and the executive branch. "No president, Democrat or
Republican, is going to welcome the idea that judges who sit in Washington are
going to supervise who is detained on the battlefield," he said.

Capt. Brian Thompson of the Air Force, who is defending one of the other three
detainees who have been charged with war crimes before a military commission,
said he was confident that Judge Robertson's ruling would apply to his client as
well. "Not in a strict legal sense," he said, "but certainly in a practical
sense."

Commission officials said they were considering whether to halt action on the
other cases as well.

* * *


NYT Magazine:

October 31, 2004

A DEATH IN THE BOX

By Mary Beth Pfeiffer

http://www.nytimes.com/2004/10/31/magazine/31PRISONER.html

By the time Jessica Lee Roger was discovered on the floor of her prison cell on
Aug. 17, 2002, it was too late. In the 24 minutes since guards had last checked
her, she had tied a bed sheet around her neck and, after many attempts over
three years in prison, finally strangled herself. When word of Roger's suicide
spread through the cellblocks of the Bedford Hills Correctional Facility that
sultry weekend, two correction officers cried. Fellow inmates were angry. The
superintendent, who was away for a few days, was devastated. A mentally ill
young woman had died, and she had died in the most stressful and isolating place
in the New York state prison system. Jessica Roger, 21, killed herself in the
"box," and many thought she didn't belong there.

For more than a third of Roger's 1,200 days at the prison in Westchester County,
she was, as she said in a letter to her mother, "locked up and locked in" as
punishment for her fits of rage and resistance. For 250 days, she was confined
to her cell, unable to participate in programs or communal meals. She spent
another 160 days in the "special housing unit," what inmates call the box. The
box is the most severe punishment in prison: the final threat, the ultimate time
out. It is a small barren chamber set apart from the general population with a
concrete floor, a steel door and no clock to mark the time. The essential
quality of the box is isolation -- a gloved hand passes food through a slot in
the door; a caseworker's muffled voice filters through the holes in a small
Plexiglas window. Inmates are allowed few personal possessions. Lights are never
fully extinguished. It is four walls for 23 hours a day -- a psychologically
punishing experience by design. For people like Jessica Roger, it can also be an
incubator of psychosis.

Forty years ago, America's seriously mentally ill were housed in psychiatric
hospitals that kept them too long and often without good cause. As those
hospitals closed, a promise to provide care in communities went unfulfilled. At
the same time, America's prison capacity grew; it has quadrupled since 1980.
People with untreated mental illness are often poor and homeless. Many commit
petty crimes, creating arrest records that often lead to harsh sentences. Today
some 250,000 Americans with mental illness live in prisons, the nation's primary
supplier of mental-health services.

Mentally ill inmates do not do well in the tense and rulebound world of prison.
They create scenes, lash out unpredictably and cannot or will not obey orders.
Special housing units are intended for the most violent inmates, but they also
tend to collect those who are troublesome and mentally ill. More than 800 of the
4,300 inmates in New York's special housing units suffer from mental illnesses
like schizophrenia, major depression or personality or trauma disorders. They
may talk to voices only they can hear. They may see conspiracies in simple
routines. They may have little emotional control or be obsessed by inexplicable
fears. For these people, prolonged confinement to a cubicle-size room is a
grueling psychological test that many fail. About 6 percent of inmates in New
York have been housed in the box since 1998. Yet 34 percent of suicides, 26 in
all, have occurred there.

This isn't news to prison officials, who have been sued over special housing
units in at least 10 states. In California, a federal judge said that placing
the seriously mentally ill in such confinement was "the mental equivalent of
putting an asthmatic in a place with little air to breathe." Over the years,
advocates in New York have challenged conditions in the box at four state
prisons. Those lawsuits resulted in incremental but largely isolated changes --
increasing the mental-health staff at one prison, providing inmate counseling at
another. But the underlying problem remains: when people with mental illness end
up in prison, the need to treat them collides with the need to keep prison
order, and everything about the system favors the latter.

Consider Attica, the infamous New York prison, where in 1998, after 18 years of
fighting in court, officials settled a lawsuit on behalf of mentally ill inmates
in its special housing unit. The prison promised to monitor inmates closely,
provide better mental-health care and do a better job of training staff members.
Nineteen months later, a court expert found that little had changed: the
symptoms of ill and psychotic inmates were routinely written off as
"malingering." Men who broke down were hospitalized and inexplicably returned to
the box afterward, only to break down again. Since the settlement, there have
been seven suicides at Attica, among New York's highest. Frustration with this
slow pace of change led advocates for mentally ill inmates to file a suit
against the entire state prison system in 2002. The suit, for which witnesses
are now being deposed, asserts that mentally ill inmates are punished for
exhibiting symptoms of illness that the system has failed to treat. Relegated to
the box, they become sicker from the "near total lack of human contact."

Roger had attempted suicide in the box at least four times before she succeeded.
Once, she tied a sheet around her neck during a 100-day sentence, which was
meted out after she refused orders and overturned furniture. She left a note
with the outline of her hand spattered with blood: "This is how I feel." She was
sent to a prison psychiatric hospital for a month, where she was counseled,
medicated and treated. Then, although she received a diagnosis of bipolar
disorder, borderline personality disorder and other mental illnesses, Jessica
was returned to complete her punishment in the small airless cell that had
broken her. Within days, she again attempted suicide.

Jessica Roger was a large young woman with hazel eyes and a ponytail of dark
blond hair. She was needy, bright and emotionally so much a child that in the
visiting room she would cling to her mother, head on her shoulder, arms wrapped
around her. Born and raised in Poughkeepsie, N.Y., Roger had been in and out of
mental hospitals 17 times since she was 11; she had gotten only as far as the
fifth grade.

When she was 16 years and 4 days old, just past the threshold at which children
become adults under New York criminal law, Roger was arrested for the relatively
minor offense of biting her sister's arm in a fight. But while in custody, the
explosive teenager kicked a jail guard who was trying to refasten the handcuffs
that had slipped from her wrists. She was convicted of second-degree assault of
a correction officer.

Dutchess County Court Judge George Marlow tried hard to avoid sentencing Roger
to prison. He approved a plea deal to send her to an intensive program for
emotionally troubled juveniles, one of few suited to her. But while she waited
in the hospital for a bed to become available, she set fire to a mattress. The
deal collapsed. "When someone has a documented history of mental illness, as
this defendant does," the judge said at her 1999 sentencing, "there ought to be
a place where there could be both isolation and treatment. That is the only
humane response." Lacking that place, Marlow made what he called one of the most
painful decisions in a 32-year career: sentencing Jessica Roger to 3 1/2 to 7
years in prison. It was her first foray into the criminal-justice system.

New York is one of more than 30 states that operate 23-hour confinement units
and prisons, sometimes called "supermax" facilities. Many of these were built in
the 1990's in a frenzy of construction; there are now more than 20,000 inmates
nationwide in these units. The resurgence of isolated confinement is often dated
to the 1984 lock-down at the federal penitentiary at Marion, Ill., after rising
violence led to the murder of two guards. But it was also fed by America's
incarceration binge: prisons crowded with gang members, the drug-addicted and
the mentally ill presented a daunting management challenge. And in an era when
the rehabilitative ideal had long been waning, punitive forces took another step
forward. "The supermax," said Gov. Tommy Thompson of Wisconsin in 1996, "will be
a criminal's worst nightmare." In New York and elsewhere, there was little
public debate about the effect that the units would have on the people confined
there.

Between 1998 and 2000, New York built special housing units for 3,000 inmates,
almost doubling capacity in the belief that completely shutting off
troublemakers would make prisons safer. Under the state's disciplinary system,
rule-breaking inmates face escalating sanctions. Smoking or failing to carry an
ID card, for example, could mean a loss of phone, recreation or commissary
privileges. Harassing staff members or refusing an order could mean cell
confinement, called "keeplock." A sentence to the box was meant for the worst
offenses, which is how Glenn S. Goord, commissioner of the New York State
Department of Correctional Services, has defended the units. (Goord declined to
be interviewed for this article, citing the pending litigation.) In a November
2000 report on prison safety, he described some of the offenses by those in the
box: Anthony Burton punched and stabbed an officer with a pen; Carlos Rodriguez
stabbed another inmate to death; Claudio Cuadrado cut an officer with a razor.
"The inmates confined in disciplinary housing," he said in a press release last
fall, "are 'the worst of the worst."'

But attorneys, psychiatrists and legislators who have visited New York's special
housing units describe the occupants in different terms. While some are violent
criminals befitting the system's most extreme form of punishment, many others
are mentally disturbed people consigned to the box for lesser offenses --
creating disturbances, using drugs or failing to follow orders. In fact, in 1986
assault counted for half of sentences to the box; in 2000 just 15 percent of
special-housing-unit sentences were for assault.

Prison is an inherently dangerous place, and it is easy to understand why
correction officers view the box as an irresistible tool for controlling
violence. Donald E. Premo Jr. has served as a correction officer and supervisor
in New York prisons for 19 years. When inmates refuse orders or start fights,
whether they are mentally ill is irrelevant, he said: they are a security
threat, and his job is to contain them. "It's not so much the harm to them,"
Premo said of mentally ill inmates who are sent to the box. "But what is the
harm to the facility if they are not controlled?" The statistics in New York do
show a significant drop in staff and inmate assault, but staff attacks had been
dropping before the units were built. A study of facilities in three other
states found little evidence of improved safety. Still, Premo and other officers
say they have no doubt that the special housing units have made prisons safer.

Among Roger's personal papers were dozens of yellow disciplinary citations,
mementos from her time at Bedford Hills: she repeatedly refused to tuck in her
shirt; she tossed toilet water; she smoked cigarettes in her cell and shouted
obscenities at staff members; she bit an inmate. She was 280 pounds of attitude
and illness who, in one profanity-laced outburst, told an officer: "That's what
I'm in here for, hitting one of you. . . . " Roger's second sentence of 60 days
in the box was for an "unhygienic act" -- spitting on an officer. She made it
through 56 days before attempting suicide.


"There's not a room she's not in," says Joan Roger, 46. Jessica's mother is
sitting at the green Formica-top table of her three-room apartment in a downcast
neighborhood of Poughkeepsie, a Hudson River city about 80 miles north of
Manhattan. The white walls of the apartment are crowded with photographs.
There's Jessica at 11 months clutching a teddy bear, and at 4, beaming and
bright-eyed in matching short sets with her older sister, Cora. There's Jessica
at 13 with her mother and grandmother. And in her mother's bedroom, a picture of
Jessica in her casket, wearing a lavender Tasmanian Devil T-shirt and jeans,
framed by a heart-shaped wreath of faded silk flowers. There's a visible bruise
on her forehead that adds to her mother's questions.

Wisps of hair fall from a tight knot and across Joan Roger's ruddy face. Her
sweatshirt is stained and worn. She accepts blame, maybe too much, for what
happened to her Jet, as she called her daughter. Driven by "mood swings," Joan
was verbally abusive to her daughters, she said -- "fine one minute, the next
minute I was off and running." Her ex-husband, Kevin Roger, 46, recalls Joan
yelling awful things at the girls and once grabbing a knife from her hand that,
she acknowledges, "had his name on it." Joan left the girls with Kevin around
the time Jessica turned 11. Jessica was shattered.

Kevin Roger's alcohol abuse is a refrain in Jessica's letters and records. But
unlike Joan, Kevin, who is suing the state prison system, does not apologize. "I
drank," he says. "I still drink. It's legal."

"To me," Jessica Roger told a psychiatrist when she was 17, "my life has been
nothing but hell." She spent much of her adolescence in institutions for
troubled and sick children. She broke more than a dozen windows during her fits
and tantrums. She first attempted suicide by overdosing on pills when she was
13. She was a regular at the local psychiatric emergency room. She might have
gone on this way except that there came a point at which her behavior -- a fight
with her sister -- ceased to be regarded as the acting out of a troubled
adolescent and instead became a crime. This time police insisted that charges be
filed, and Roger's fate was sealed.


"Mommy these people are stressing me out again. They took my sheets, my blankets
and my mattress out of my cell because I keep hiding under the bed and covering
myself so they can't see me. . . . Mommy I really feel like hurting myself but I
am afraid to tell these people because I don't want them to put me in a cold . .
. cell with nothing but a thin mat and a gown. . . . Mommy the feeling of
hurting myself is getting stronger. Why won't these feelings just stay out of my
head forever? I can't deal with them anymore. My thoughts about hurting myself
are racing now they are going faster than before."

When Roger wrote to her mother in June 2001, she was serving 60 days in keeplock
-- locked in her cell for all but an hour of exercise a day -- for setting fire
to a book, yelling during the inmate count and other offenses. These forays into
solitude were intended, a hearing officer told her, as "an understood deterrence
to future similar behavior." But like many ill inmates, Roger seemed inured to
punishment. In a county jail, she was so uncontrollable that a stun device was
used on her more than once. Another time, jail officers stripped her of her
jumpsuit and bra, after she refused to do it herself, and put her in a suicide-
proof gown. "Do whatever you want to me," she impassively told a jail officer in
1998.

Inmates like Roger are at the heart of a societal debate -- played out mostly in
courts, academic publications and the reports of reform organizations -- over
whether seriously mentally ill people belong in isolated confinement. But it's a
question that is debated in prisons too, with lines sometimes drawn in
unexpected ways. The Department of Correctional Services runs New York's
prisons, but clinical care of the mentally ill is left to the Office of Mental
Health. Bedford Hills Superintendent Elaine Lord, who retired in March, was
known as an advocate for mentally ill inmates for whom harsh punishment in the
box could be destructive and lead to a spiral of misbehavior. Lord, who declined
to be interviewed for this article, sometimes clashed with mental-health
clinicians, who advocated punishment to curb what they saw as inmate
"malingering" or "manipulating" -- feigning or using illness, usually to get out
of disciplinary sanctions.

It is a classic tug of war in an overburdened system in which the corrections
side is supposed to take the "bad" inmates and the mental-health side is
supposed to take the "mad" -- and where both sides have limited resources,
arguments ensue as to who belongs where. In a deposition taken for the lawsuit
against the state, the superintendent summed up a school of thought with which
she agreed. "We need to stop arguing about whether people are mad or bad,"
testified Lord, who cried at the inquiry into Roger's death, "and design some
effective interventions."

Roger's borderline personality disorder marked her as willful, manipulative and,
incorrectly, all but untreatable. In her time at Bedford Hills, she was
sentenced to 16 terms in disciplinary confinement, mostly in keeplock, on 46
separate charges. She had two sentences to the box totaling about five months.
She was luckier than others in New York. Inmates who are mentally ill spend on
average about three years in special housing units, according to a Correctional
Association of New York survey. They get caught in a vortex of worsening illness
and behavior that leads to ever more punishment.

he debate over the effects of isolation on even a normal human psyche is
longstanding. In 1821, the New York Legislature directed its prison at Auburn to
conduct an experiment: put 80 of its worst offenders into what a group promoting
the idea described as "complete solitary confinement, free from all employment,
all amusement, all pleasant objects of external contemplation." The inmates soon
became suicidal and psychotic. One leapt from a gallery when his door opened;
another beat his head against the walls of his cell. The experiment was
abandoned within two years. "A degree of mental anguish and distress may be
necessary to humble and reform the offender," the warden, Gershom Powers, wrote,
"but, carry it too far, and he will become either a savage in his temper and
feelings, or he will sink in despair."

Modern research on prisoners of war; immobilized spinal-injury patients; solo,
long-flight pilots; Antarctic dwellers and prison inmates has shown the human
mind vulnerable to unraveling during periods of isolation and sensory
deprivation. In 1979, Stuart Grassian, a Harvard Medical School psychiatrist,
was asked to assess 14 inmates who were housed in the small, windowless cells of
a solitary confinement unit at a maximum-security prison in Walpole, Mass. One
inmate could not recall the days before he slashed his wrists. Another described
feelings of panic and fear of suffocation. Many heard voices, were
hypersensitive to sounds or obsessed over thoughts of torture and revenge on
guards. Since then, Grassian has evaluated scores of inmates in New York and
other states, and has no doubts about what he calls the "toxic" effect of
isolation.

Grassian's findings are part of a body of research that is consistent and ample
but also, in the words of a recent article in The Prison Journal, "weak
methodologically." For one, his research was conducted in the context of a
lawsuit -- often the only way to get access to the cloistered world of prisons.
And it is based on observing and interviewing inmates rather than tracking them
over time or comparing them with control groups. A research team in Canada tried
to settle the debate in the late 1990's by comparing the mental health of 23
inmates segregated for 60 days with those who were kept with the general
population. It found no harm to the isolated inmates, who were less mentally
healthy than the control group. However, the study's subjects -- many of them
volunteers -- had access to personal possessions, televisions and computers. In
an article in the Canadian Journal of Criminology, the researchers cautioned
that their findings are "somewhat irrelevant" to conditions in the United
States, "where prisoners can sometimes be segregated for years for disciplinary
infractions with virtually no distractions, human contacts, services or
programs."

Researchers and advocates generally do not object to short periods of
confinement for ill and unruly inmates; they recognize that truly violent
prisoners must be contained. But since the 1980's, the number of New York
inmates serving special-housing-unit sentences of longer than six months has
increased at six times the rate of the population. Inmates can, and do, spend
years in the box. In 2002, New York had among the nation's highest proportion of
inmates -- nearly 8 percent -- in isolated confinement, which includes the box
and keeplock. "The scale of punishment in New York State is particularly
onerous," said Hans Toch, a prison researcher who is a professor of criminal
justice at the State University at Albany. "They think nothing of putting
someone into a segregation setting for a year and a half for what is a serious
but not horrendous offense."

Carlos Diaz, 46, had been in a special housing unit in New York for five years
when he hanged himself with a shoelace in 2000. He had accumulated so many
infractions that he had 10 years left in the box. Such deaths are investigated
by an oversight board called the New York State Commission of Correction, which
found that Diaz had been virtually abandoned. Although he was at one point
"extremely delusional," no one was monitoring his condition or providing mental-
health care. "It is a well-established fact," the commission noted pointedly,
"that inmates serving long-term sentences in S.H.U.'s are likely to decompensate
due to extended periods of isolation and sensory deprivation."

In 2001, the commission investigated two deaths six months apart that painfully
illustrate lapses in mental-health care that lead ill inmates to act out and be
disciplined. In each case, severely mentally ill inmates at separate prisons
died from "decreased intake of food and water" -- they starved, in other words
-- one after announcing a hunger strike and the other while on a suicide watch.
The Commission of Correction was searing in its criticism: "In both cases, the
inmates had been identified as having significant mental-health and/or medical
problems and were not afforded the care and treatment that these services are
required to provide." Significantly, the commission's findings are nonbinding;
they are often rejected or ignored.

Cases like these are symptoms of a system under strain. The number of mentally
ill inmates grew by 78 percent since 1991, while mental-health staffing has
grown by 57 percent. Complicating matters, jobs often go unfilled. Pedro Molina
appealed for help in 2001 at a prison with chronic recruiting problems. His note
in Spanish was found weeks later on a stack of 40 requests; no one had
translated or triaged the request, and Molina, 27, hanged himself in the box.

When another inmate, Ralph Tortorici, 31, killed himself in 1999, Goord himself
expressed frustration, appealing to the Office of Mental Health for more
psychiatric hospital beds. "I am seriously concerned about the potential for
unfortunate occurrences similar to the premature demise of Mr. Tortorici," Goord
wrote. Tortorici suffered from schizophrenia and believed the government had
implanted computer chips in his body; he was so ill that he had been
hospitalized four times for periods of up to a year. The prison system's lone
189-bed hospital has not been expanded since opening in 1980. Since then, New
York has built 38 prisons.


Each morning at Bedford Hills, Jessica Roger would visit Andy DeMers, a
correction officer she had made friends with. She would put her head, puppy-dog-
like, on the high counter he manned. It was a ritual they shared: He would
"tune" her nose, making a noise as he tweaked it. One day, she called to him as
she was led to a van bound for the prison psychiatric hospital. "Who's going to
tune my nose?" she asked. DeMers recalled that "there was a sweetness inside
her," a quality he said few officers saw. Officers aren't trained to connect
with inmates but rather to control them, many experts told me, leading to many
confrontations and failures of opportunity. "She was reachable," said DeMers,
who has since retired.

Betty Guzzardi, a petite woman in her 50's, lived on Roger's cellblock in the
months before her suicide. She was one of a handful of mother hens who would try
to lift Roger's spirits. "We used to tell her, 'You're a young girl; you'll be
getting out,"' said Guzzardi, who has a daughter Roger's age. The women would
play cards and Yahtzee with her, and Roger would laugh and enjoy the company.
Guzzardi once watched Roger pull an electrical outlet cover off a wall and gouge
her wrists with the broken pieces; she had often seen her cry. When told that
Roger had been put into the box two days before her suicide -- in an incident
that apparently began with Jessica smoking and ended with her throwing a chair
-- Guzzardi was incredulous. "Are you crazy?" she told an officer. "She's too
depressed.

"The whole facility was like 'How could they do this knowing how she was?' It
was very upsetting to us that a young girl like that took her life, and more
than that, the facility helped her take her life."

State prisons bear the brunt of what is often called the "criminalization" of
mental illness. In New York, the tally of mentally ill inmates has swelled to
7,500, or 11 percent of the population. Unprepared for the task, the system has
tried to respond, if inadequately. Units have been built for mentally ill
prisoners who cannot live with the general population. Therapy programs have
even been started at a few special housing units. In the face of the systemwide
lawsuit, the state is proposing to expand these services, along with measures to
reduce time in the box for good behavior and for offenses that stem from mental
illness. But advocates say that more in-patient hospital beds and dedicated
units are needed for mentally ill inmates, along with training to help
correction officers recognize the manifestations of illness. Just as important,
better oversight is needed of a system with little accountability.

Thanks to a previous lawsuit against Bedford and the 1987 settlement that was
reached, the prison has among the highest levels of mental-health staff in the
state and the mental-health care that Roger received was most likely far
superior to that in the rest of the system. Women in the special housing unit
are monitored regularly and given monthly therapy. But while the lawsuit
improved care, it did not achieve what Jessica Roger needed most. It did not
keep her out of the box. Facilities in at least four states preclude the
seriously ill from 23-hour confinement; a proposal to do that in New York has
languished in the State Legislature. Had it been law, Roger might still be
alive.

In her final tortured hours, Jessica Roger was moved from the box to a suicide
observation cell and back again. She exhibited "self-injurious behaviors" on the
way back to special housing, the Commission of Correction's report states,
questioning why she wasn't returned to observation. But mental-health staff
members had considered a prior gesture to be "manipulative," the report asserts;
Roger, they thought, was trying to get out of the box. "The ultimate tragedy,"
writes Terry Kupers, a prison expert and psychiatrist, in an article in The
Correctional Mental Health Report, "is when overconcern about malingering leads
mental-health staff to miss what would otherwise be clear signs of an impending
suicide."

On Aug. 20, 2002, Roger's counselor closed out her file, recalling recent
encounters with Jessica. "This writer would ask inmate if she had decided if she
wanted to get a new ticket yet (misbehavior report) and inmate would laugh and
say she wasn't going to get locked." Before long, however, the inevitable
happened.

"Inmate acted out after hours and was sent to S.H.U.," the counselor wrote.
"Writer was informed of her death yesterday morning on 8/19/02. She will be
missed."

[ Mary Beth Pfeiffer, who is on leave as the projects editor at The Poughkeepsie
Journal, is a 2004 Soros Justice Media Fellow. ]

* * *


October 25, 2004

SLOW PACE OF PENTAGON'S COURTS SET OFF FRICTION AT WHITE HOUSE

By Tim Golden

http://www.nytimes.com/2004/10/25/international/worldspecial2/25gitmo.html

WASHINGTON - When hundreds of prisoners arrived at the American naval base in
Guantanamo Bay, Cuba, in early 2002, the Bush administration laid out a
straightforward plan: once the men were interrogated, the worst of the lot would
be prosecuted before special military tribunals devised to bring terrorists to
justice quickly.

A year later, with no trials yet in sight, some officials at the highest levels
of the Bush administration began privately venting their frustration about both
the slow pace of the Pentagon's new courts and the soundness of their rules.
Attorney General John Ashcroft was especially vocal.

"Timothy McVeigh was one of the worst killers in U.S. history," Mr. Ashcroft
said at one meeting of senior officials, according to two of those present. "But
at least we had fair procedures for him."

The administration invoked extraordinary wartime powers to set up the new system
of military justice, arguing that the Sept. 11 attacks and the continuing threat
they exposed justified the use of legal authorities that had not been exercised
since World War II. But as officials sought to apply those powers to a very
different kind of conflict, they became mired in problems they are still
struggling to solve.

Although White House lawyers said they rushed to devise a new judicial structure
that could handle serious Qaeda terrorists, many of the detainees sent to
Guantanamo turned out to be low-level militants, Taliban fighters and men simply
caught in the wrong place at the wrong time. The Pentagon's efforts to gather
intelligence from more valuable prisoners were also deeply flawed, military
intelligence officers said, complicating the prosecution of some detainees and
nearly paralyzing efforts to release others.

Interviews with dozens of officials show that the myriad problems ignited an
often fierce behind-the-scenes struggle that set the Pentagon and its allies in
the White House against adversaries at the National Security Council, the State
Department and Justice Department. The friction among officials like Defense
Secretary Donald H. Rumsfeld; the national security adviser, Condoleezza Rice;
and Mr. Ashcroft sheds new light on the internal dynamics of an administration
that has shown a remarkably united public front.

In many cases, officials said, the battles were fueled by the discontent of
military, foreign-policy and other officials who had been excluded from a role
in shaping the policy after Sept. 11.

"Anytime you have a process which is not inclusive, you end up giving people a
reason to be opposed to it," said Timothy E. Flanigan, a former deputy White
House counsel who helped craft the legal strategy. "That was certainly the case
here."

The Pentagon continues to defend military commissions, as the tribunals are
called, as an important tool against terrorism. But in several instances,
military officials said, Mr. Rumsfeld and his deputy, Paul D. Wolfowitz,
resisted moving forward with prosecutions, in part because they felt the cases
were weak.

As prosecutors prepare for their first two trials, now scheduled for December
and January, the commissions have been roiled by vigorous attacks from the
uniformed lawyers assigned to the defendants. Defense challenges have prompted
the removal of half of the officers appointed to hear the first cases, and have
called into question the independence of the presiding officer.

On Monday, Oct. 25, a federal district court judge in Washington is expected to
hear arguments in a lawsuit by one of the defense lawyers challenging the
commissions as unconstitutional. Already, White House and Pentagon lawyers are
considering ways to revise the tribunals after Election Day, administration
officials said.

As the Sept. 11 attacks have receded, political and diplomatic opposition to the
administration's use of wartime powers has grown. Now, critics argue that the
delays in moving forward with the commissions has weakened their legal
justification as well.

"When commissions have been done in the past, they have either been authorized
by Congress or done on the battlefield, typically during declared wars," said
Neal K. Katyal, a Georgetown University law professor who will argue the case in
federal court. "But here, you have a commission set up unilaterally by the
president, at a time when war has not been declared, thousands of miles from a
battlefield and now more than three years after the attacks."

Hunting for Defendants

With American military, intelligence and law-enforcement efforts focused on Al
Qaeda, administration officials expected to corner many of its members in
Afghanistan, sweep up others around the world and start prosecuting the
terrorists within months.

Mr. Rumsfeld had not been intimately involved in developing the plan for
prosecuting terrorist suspects. But once the prisoners started to arrive from
Afghanistan, he took a strong interest in Guantanamo's potential as a source of
intelligence, officials said.

He was soon disappointed.

Experienced interrogators, analysts and interpreters were all in short supply.
Few, if any, military intelligence officers had significant expertise on Al
Qaeda or Afghanistan. Even plywood interrogation huts were scarce: One senior
interrogator said he finally bribed some Navy Seabees with cases of beer to
build two more.

"Guantanamo had been a backwater location for many years," said Gen. James T.
Hill, who oversees the base as commander of the United States Southern Command.
"Now, all of a sudden, we were involved in strategic intelligence-gathering from
an enemy unlike any we've encountered on the battlefield before, in a Guantanamo
environment that at the beginning was very austere. So all of this had to
evolve."

It did not evolve fast enough for Mr. Rumsfeld, who ordered an overhaul of the
intelligence effort in September 2002.

Three months later, he authorized the use of more coercive interrogation
techniques, taking advantage of a decision by the White House that the detainees
were not protected by the Geneva Conventions. Although Mr. Rumsfeld later
disallowed some of the most severe methods, including the removal of clothing
and the use of dogs to induce stress, disclosures about the harsh methods lent
credence to charges of abuse leveled by former detainees.

But intelligence-gathering was only part of the problem. It quickly became
apparent that few of the prisoners captured in Afghanistan were the sort of
hardened terrorists the administration had hoped for.

"It became obvious to us as we reviewed the evidence that, in many cases, we had
simply gotten the slowest guys on the battlefield," said Lt. Col. Thomas S.
Berg, a member of the original military legal team set up to work on the
prosecutions. "We literally found guys who had been shot in the butt."

The reserve officer chosen by Mr. Rumsfeld to lead the intelligence operation at
Guantanamo, Maj. Gen. Michael E. Dunlavey, was told after his arrival there in
February 2002 that as many as half of the initial detainees were thought to be
of little or no intelligence value, two officers familiar with the briefings
said. He also found that the prisoners included elderly and emotionally
disturbed Afghan men, including one tribal elder so wizened that interrogators
nicknamed him "Al Qaeda Claus."

Barely a month after taking command, General Dunlavey flew to Afghanistan and
Kuwait to complain directly to military commanders there. But while the
commanders acknowledged that prisoner screening could be improved, they said
they had no other place to put suspects who might be of some intelligence value
or threat, a senior officer familiar with the meetings recalled.

"Basically, they said, 'General, please shut up and go home,' " the officer
said.

The lack of solid information about the detainees undermined a basic premise of
the administration's legal plan. The order that established the military
commissions on Nov. 13, 2001, authorized the Pentagon to hold and prosecute any
foreigners designated by the president as suspected terrorists.

On Jan. 22, 2002, at the request of the White House counsel, Alberto R.
Gonzales, Pentagon lawyers directed intelligence officers at Guantanamo to fill
out a one-page form for each prisoner, certifying the president's "reason to
believe" their involvement with terrorism, officials said.

But within weeks, intelligence officers began reporting back to the Pentagon
that they did not have enough evidence on most prisoners to even complete the
forms, officials said. By March 21, Defense Department officials indicated they
would hold the Guantanamo prisoners indefinitely and on different legal grounds
- as "enemy combatants" in a war against the United States.

"We are within our rights, and I don't think anyone disputes it, that we may
hold enemy combatants for the duration of the conflict," William J. Haynes II,
the Pentagon's general counsel, said then. "And the conflict is still going and
we don't see an end in sight right now."

Emerging Divisions

As accounts of the problems at Guantanamo reached Washington in the spring of
2002, the question of how to deal with the detainees began to divide the Bush
administration.

In public, the administration continued to maintain that the prisoners were both
frighteningly dangerous and a likely font of vital intelligence. "They may well
have information about future terrorist attacks against the United States," said
Vice President Dick Cheney. "We need that information."

But at the State Department, diplomats were awash in complaints from foreign
governments, many of them allies in the Afghan war, about the open-ended
imprisonment of their citizens. F.B.I. agents and Justice Department officials
were struck by how few strong prosecution cases there seemed to be, current and
former officials said.

Officials said that C.I.A. officers who were trying to recruit some Guantanamo
detainees as agents raised another fear: that the camp could become America's
madrasa, or Islamic school, radicalizing prisoners by its harsh conditions, the
indoctrination of militant leaders and the detainees' focused study of the Koran
- the only book they were initially given to read.

Officials on the National Security Council staff were particularly uneasy. The
discussions that produced the president's Nov. 13 military order had been
dominated by a small circle of White House lawyers overseen by Mr. Cheney. Ms.
Rice, like Secretary of State Colin L. Powell, had been excluded, officials
said, an embarrassing slight given her role as a mediator on national security
issues.

Mr. Bush later brought the council staff back into the process, assigning it to
draw up a broader strategy to deal with the thousands of prisoners in
Afghanistan. Two senior aides, Elliott Abrams and John B. Bellinger III,
convened an interagency group to study the issue.

The men made an odd team: Mr. Bellinger, the council's legal adviser, was a
measured former Justice Department official with a degree from Princeton and a
taste for monogrammed dress shirts. Mr. Abrams, known as a bare-knuckled
bureaucratic infighter, was making his return to government after being
convicted of lying to Congress in the Iran-contra scandal and later pardoned by
the first President Bush.

"They were very persistent," one senior administration official from another
agency said of the National Security Council aides. "They kept pressing: Did all
the detainees really belong there? What was the plan to start transferring them
out?"

The council officials also worried what might happen after such transfers.

"There was real concern that if detainees were harshly treated and deprived of
due process, they were going to end up turning against the United States, if
they had not already," said retired Gen. John A. Gordon, a former deputy
director of the C.I.A. who became President Bush's deputy national security
adviser for counterterrorism. "We were not making any converts."

The Defense Department was notably unresponsive to prodding by other agencies.
Requests for information were answered slowly, if at all, officials said.
Promised policy changes - new criteria to improve the screening of detainees
being sent to Guantanamo, or proposed terms for their transfer home - were
delayed repeatedly.

"We provided them with only the information that we, in our arrogance - or the
arrogance of our leadership - thought they needed," one former Pentagon official
said. He added that he and others went into interagency meetings on Guantanamo
with a standard script, dictated by their superiors: "Back off - we've got this
under control."

The National Security Council officials were notably unsuccessful in pushing for
a major public diplomacy effort to counter the widely seen images of shackled
detainees in orange jumpsuits.

Members of Congress, journalists and others were eventually allowed to visit the
base on tightly controlled tours. But the Pentagon, citing security concerns,
refused to release even basic information about the prisoners, or say publicly
what they were accused of having done.

"Rumsfeld was very clear that he wanted the Department to be driving this bus,"
said a former Army secretary, Thomas E. White, who was closely involved in the
Guantanamo policy. "He reigned supreme in the government. The vice president
backed him up, and that was his power base."

Documenting the Problems

Stymied by the Pentagon, National Security Council aides eventually began
playing their own game of hardball.

In August 2002, at what officials said was the council's request, the C.I.A.
dispatched a senior Arab-speaking intelligence analyst to assess the detainees
and talk to intelligence officers at the base. He produced a top-secret report
of about 15 pages that, according to several officials who read it, described
many of the detainees as having no meaningful ties to Al Qaeda.

It also hinted that the harsh conditions, lack of reading materials and, in some
cases, extended isolation bordered on abusive and might prove counterproductive,
those officials said.

Back in Washington, administration officials said, the report made its way to
Ms. Rice, who began building an alliance of dissenters within the
administration's national security team.

She turned first to Mr. Powell, officials said. Her staff also sought out the
president's Homeland Security adviser, Tom Ridge, and set up an off-the-record
dinner at which he debriefed General Dunlavey, the Guantanamo commander, who was
a friend of Mr. Ridge's from his days as a lawyer in Erie, Pa.

Ms. Rice also found a powerful ally at the Department of Justice.

Early on, Justice had seemed firmly with the administration's hard-liners. In
December 2001, Attorney General Ashcroft defended the president's military order
before the Senate, going so far as to warn those who saw an assault on civil
liberties, "Your tactics only aid terrorists, for they erode our national unity
and diminish our resolve."

But by the fall of 2002, some senior Justice Department officials were uneasy
with the Pentagon's handling of the detainees, the slow progress of the military
commissions and the seemingly improvised nature of decisions about how to
prosecute suspected terrorists.

The administration had used the federal courts to convict John Walker Lindh, a
young California man captured by the military in Afghanistan, but ordered the
transfer to military custody of Jose Padilla, a young American arrested by the
F.B.I. in Chicago. The Justice Department had insisted on trying Zacarias
Moussaoui, a French-born member of Al Qaeda arrested in Minnesota. But the
Pentagon had held onto Yaser E. Hamdi, an American-born Saudi captured in
Afghanistan, eventually moving him from Guantanamo to join Mr. Padilla in a
naval brig in South Carolina.

"There was not a real process for determining who was an enemy combatant," said
Viet D. Dinh, a former Justice Department official who worked on terrorism
issues under Mr. Ashcroft. "And the ad hoc nature of that process gave a lot of
power to the Pentagon."

With the federal courts starting to consider cases involving detainees, a split
developed over whether to allow Mr. Hamdi and Mr. Padilla, in particular, some
access to lawyers. Behind the disagreement was a philosophical difference about
how best to achieve the shared goal of strengthening presidential power. A more
reasonable position, many argued, would avoid review and possible reversal by
the courts. Others, led by the vice president's influential counsel, David S.
Addington, advocated taking the most aggressive stance they felt they could
defend, officials said.

"Addington's position was, 'We think what we're doing is right - why should we
stop doing it?' " a former White House official said. "If the courts tell us
we're wrong, we'll stop then."

A spokesman for the vice president's office said Mr. Addington would not
comment.

Officials of the Justice Department's criminal division, who worked closely with
the F.B.I., were grappling with other questions. They saw the Guantanamo
detentions as a source of cascading problems: angry foreign allies, a tarnishing
of America's image overseas and declining cooperation in international
counterterrorism efforts.

"This was an issue of basic fairness," one former senior official involved in
the discussions said. "The never-ending detentions were creating a lot of
animosity among our allies. We pushed hard for them to move quicker. The
attorney general pushed hard for it. They didn't, and there was an immense
amount of frustration."

Dissenters Make Gains

Eventually, the critics began to gain ground. At Ms. Rice's initiative, several
officials said, members of the cabinet-level "principals' committee" on national
security matters were called to a meeting about the Guantanamo situation on
Friday, Oct. 18, 2002.

"We are not serving the president's interest; we are not serving the interests
of the country," one senior official quoted her as saying. "Security has got to
be paramount, but we have got to work better with other countries, and we have
got to have better procedures."

Mr. Powell echoed the call for the release or transfer of less-important
detainees. "He wanted to get down to the hard-core element that needed to be
detained," a senior official who attended the meeting said, "and he realized
that there was a body of people we needed to move."

As for the most discussed of the elderly Afghans - Faiz Muhammad, or "Al Qaeda
Claus" - Ms. Rice told the Pentagon: "Just get rid of this guy," one senior
official said. A week after the meeting, Mr. Muhammad flew back to Afghanistan
with three other detainees.

Several officials said Mr. Rumsfeld did not seem to appreciate his colleagues'
growing involvement, but was also impatient with Guantanamo's problems.

"Certainly Don was ambivalent," another senior administration official said.
"That phrase, 'I don't want to be the world's jailer,' that was one of the
expressions he used."

The chief Pentagon spokesman, Lawrence Di Rita, said the defense secretary grew
tired of hearing "that at lower levels, there was this anxiety or that anxiety"
about Guantanamo, and ordered a series of briefings to keep his cabinet-level
counterparts informed about operations there.

But several officials said that with preparations for war in Iraq moving forward
and the Guantanamo intelligence issues unresolved, Mr. Rumsfeld's enthusiasm for
the military commissions had waned.

By late 2002, officials said, secret plans for the tribunals cited prospective
defendants including several men identified as high-level Qaeda figures and
thought to be held by the C.I.A.: Abu Zubaydah, Ibn al-Sheikh al-Libi and Ramzi
bin al-Shibh. But with both the C.I.A. captives and more important Guantanamo
detainees, interrogation was given priority over prosecution, officials said.

At a Pentagon briefing on Oct. 19, the day after the interagency gathering, Mr.
Rumsfeld instructed his lawyers to clear their prosecution plans with other top
national-security officials. While officials said the briefings were partly
intended as a show of openness, it effectively postponed action on the tribunals
for months.

At Ms. Rice's urging, Mr. Rumsfeld also agreed to give comprehensive briefings
on Guantanamo to cabinet-level national-security officials and their deputies.
Officials said the higher-level presentation was delivered on Jan. 16, 2003, by
Marshall S. Billingslea, a 31-year-old acting assistant secretary who was a
favorite of Mr. Rumsfeld.

"It was basically a sales job: 'What we are doing down there is valuable, it's
producing results,' " a former Pentagon official who viewed the briefing said.
"They were factual reports, but they were also very much a public-relations
job."

Tweaking the Policy

In late 2002, partly in response to the mounting pressure, the Pentagon began to
make some significant changes in its detention policies. By the time they took
effect, though, many of the difficulties at Guantanamo were becoming harder to
solve.

According to Pentagon documents reviewed by The New York Times, Mr. Wolfowitz
approved several new measures on Dec. 26, 2002, including revised criteria for
sending prisoners to Guantanamo, a policy to transfer detainees back to their
home countries and a requirement to periodically assess whether those who
remained at Guantanamo should stay.

Oddly, the Defense Department made no mention of what it called the "combatant-
commander review" process. Mr. Haynes, who had pushed for the procedure, touted
it in a draft op-ed article dated March 16, 2003, saying it went "far beyond
anything required by international law." But other officials objected to
disclosing the review effort, and the article was never submitted for
publication.

The internal struggle over the prisoners' fate began to play out in
dysfunctional weekly meetings at which officials from across the government
assembled by secure video link to consider individual detainees put forward by
the Pentagon for outright release or transfer to the custody of their home
governments.

At Mr. Rumsfeld's insistence, the group tried to resolve the cases of at least
10 Guantanamo detainees a week, but that almost never happened. Information on
the prisoners was often inconclusive. And while foreign-policy officials
emphasized the diplomatic costs of the open-ended detentions, none of the
officials wanted to take responsibility for releasing a potentially dangerous
prisoner.

"There was tremendous concern in the interagency process about letting someone
go who might come back to haunt us," Mr. White, the former Army secretary,
recalled. The desire to release men who might be innocent, he added, "was a
fairly small upside, compared to the possible downside of misjudging some guy
who then goes out and commits some terrible act."

The process, some officials said, turned upside down not only any presumption of
innocence but the American justice system's traditional premise that it is
preferable to free a guilty man than to wrongly convict one who is innocent. It
was also ineffective: by early 2004, the Pentagon had managed to transfer only
13 prisoners overseas.

"We don't want to be in a situation where we're reckless," the under secretary
of defense who oversaw detainee issues, Douglas J. Feith, said in an interview.
"But if you're unwilling to take risks, then you can't transfer people and then
you wind up creating other risks."

Some other senior officials, who spoke on the condition of anonymity, said that
was just what happened for the better part of a year.

"There were lots of factors that needed to be weighed - not just the risks," one
administration official involved in the process said. "It can hurt us if we let
the wrong guy out. But it can also hurt the country and hurt the president if
people think we are holding people who should not be held, that we don't have
fair procedures, or that we are mistreating them."

Even when the Pentagon was willing to release prisoners, it had trouble
persuading foreign governments to take over their custody because of its rigid
rules. According to administration officials and diplomats, the Defense
Department initially demanded that foreign governments adopt the Bush
administration's wartime legal framework, taking custody of the detainees as
"enemy combatants," and promising to hold them "until the end of hostilities" by
terrorists against the United States. It also insisted that Washington be able
to retrieve the detainees at any subsequent time if they were needed for
intelligence purposes.

"The rest of the world failed to see this as a real war, rather than a law-
enforcement situation," said Lt. Col. William K. Lietzau, a war-crimes expert
who worked in the Pentagon general counsel's office. "When we went to another
country and told them, 'We need you to hold onto these people,' they looked
differently at which laws applied."

Pressure for Action

At a White House meeting in late February 2003 - more than a year after the
presidential order that created the commissions - Mr. Ashcroft finally lost his
patience.

"When are those commissions going to get moving?" officials quoted him as
demanding.

Pentagon officials pledged to get started by the end of March, and began a
flurry of preparations that included hiring commission lawyers, fine-tuning
procedures and even building a provisional courthouse at Guantanamo, officials
said.

Defense Department officials had been searching for cases that would be easy to
win in a system that still had kinks to be worked out. They did not expect that
one kink would be public opinion overseas.

The officials settled on two British-born detainees at Guantanamo, in whom the
Justice Department had taken a particular interest. The men, Feroz Abbasi and
Moazzam Begg, spoke English, cooperated with interrogators and had ample
dossiers in the data banks of British intelligence, several officials said.
Neither ranked as a senior Qaeda operative, but both had enticing connections.

Mr. Abbasi, then 21, told his captors in Afghanistan that he had traveled there
with a man whom the F.B.I. later identified as Earnest James Ujaama, an American
convert to Islam who later pleaded guilty to illegally supporting the Taliban.

Officials said that Mr. Begg, 35, had drawn the interest of American and British
counterterrorism officials since at least 1999, in part for what they said was
his relationship with Abu Hamza al-Masri , a militant cleric at the Finsbury
Park mosque in London..

Lawyers for both Mr. Abbasi and Mr. Begg denied that they were involved in
terrorism and insisted that any confessions they were said to have made had
probably been coerced.

In a letter dated Oct. 16, 2002, Michael Chertoff, the head of the Justice
Department's criminal division, asked the Pentagon to allow federal prosecutors
to try the two British detainees or, after their trial by military commission,
let them use the men as witnesses against Mr. Ujaama and Mr. Masri. Eight months
later, Defense Department officials said, they won agreement from the British
government on a series of secret terms for the military trials, including
diplomatic access to the men and a promise that they would not be subject to the
death penalty. On July 3, 2003, Mr. Bush designated the two men and four other
defendants for the first set of tribunals.

News of the men's prosecution became public in Britain just as Prime Minister
Tony Blair was beginning a major public relations campaign to overcome his
unpopular support for the Iraq war. Within days, he was under renewed attack in
Parliament, this time over the detainees, and promising that any tribunals would
follow "proper international law."

Mr. Blair's critics saw his inability to regain custody of a total of nine
British detainees at Guantanamo as proof of his subjugation to Washington. After
meetings with Mr. Blair the next week, Mr. Bush agreed to negotiate.

Neither government has disclosed details of the talks that followed. According
to the accounts of several officials involved, American representatives grew
distressed as the talks dragged on for months with the chief British negotiator,
Attorney General Peter Goldsmith. Officials said Lord Goldsmith, who was himself
under fire in Britain for his support of the Iraq war, would not budge from a
basic demand: that verdicts of the military commissions be reviewed by civilian
courts.

Bush administration officials argued that such a change would have rendered the
commissions unworkable. Instead, they made a remarkable counteroffer, promising
to send any convicted British defendants home to serve their sentences - a step
that would almost certainly set off a review of the cases by British courts.

"We knew what that meant," one United States official said. "They would be
released as soon as they set foot back there."

Yet even that proposal was rejected by Lord Goldsmith, officials said. During a
state visit to Britain in late November 2003, Mr. Bush finally agreed to shelve
the cases of the two British suspects for the foreseeable future, American
officials said.

Losing Control

As the commissions moved toward their first trial this year, the Defense
Department's control over the process began to falter.

The collapse of negotiations with the British government and a decision by the
Supreme Court to hear a case challenging the detentions at Guantanamo prompted
yet another push by the Pentagon to get the commissions going. A retired Army
lawyer with a reputation for independence, Maj. Gen. John D. Altenburg Jr., was
hired to supervise the tribunals process, and refinements to the rules
continued.

What was more difficult to manage was the handful of scrappy military lawyers
who had been appointed as defense counsel for the prisoners.

"They expected us to stay within the box they designed for us - accept the
rules, accept the process and just fight on the facts," said Lt. Cmdr. Philip
Sundel, a Navy lawyer who was hired in March 2003 as one of the first two
members of the defense team. "That was never going to happen."

One of the lawyers' first moves was to file a "friend of the court" brief to the
Supreme Court on behalf of the Guantanamo detainees. Another was to challenge
the Defense Department on speaking to the news media. When their blistering
brief drew wide attention, Commander Sundel said, "We made it clear that if they
tried to keep us gagged, we would sue."

It worked. The Pentagon relented and the lawyers used their new platform to
attack the commissions process as unfair, unconstitutional and worse. In April,
another member of the defense team, Lt. Cmdr. Charles Swift, filed suit in
Federal District Court to block the commissions altogether.

While the defense was gaining momentum, the office of the commission prosecutors
was in turmoil. The chief prosecutor, Col. Frederick L. Borch, left the
commission and two prosecutors were reassigned after a dispute that officials
said involved the supposed "hand-picking" of the commission panels.

Still, officials said, the resources of the prosecution team substantially
outweighed those of the defense, and as the first hearings drew closer, the
defense counsel complained that the deck was being further stacked against them.

While the defendants had a right to remain silent, they noted, information from
coercive interrogations was determined to be admissible. The commissions were
supposed to presume the innocence of the defendants, yet senior military
officials had repeatedly branded the Guantanamo detainees as dangerous
terrorists. And although the commissions were to judge guilt "beyond a
reasonable doubt," the rules of evidence allowed for evidence that, as one of
the lawyers put it, "would be laughed out of any other court."

General Altenburg said in an interview he understood that public perceptions of
the fairness of the commissions would be vitally important. But when preliminary
hearings for the first four cases began in late August, neither he nor the panel
he chose seemed ready for the scrutiny.

The impartiality of the retired Army lawyer presiding over the trials, Col.
Peter S. Brownback III, was impugned by the defense, which pointed to his long
friendship with General Altenburg. Other military officers on the panel, which
combines the functions of judge and jury, were challenged for conflicts of
interest or inexperience. Even the court interpreters were criticized for
mistranslating key statements into Arabic for some of the defendants.

Weeks later, with most of the lawyers in the prosecutors' office demanding
Colonel Brownback's removal, the chief prosecutor asked whether he could
impartially continue. Colonel Brownback declined to step down, but General
Altenburg removed two panel members and an alternate in response to the defense
challenges.

That left only three members, the minimum needed to hold a commission - and two
fewer than the number required to hear a felony case in a regular military
court-martial.

An Uncertain Future

Nearly three years after Mr. Bush signed his military order, senior officials
have begun to acknowledge privately that the fate of both Guantanamo and the
military commissions is uncertain.

Military officials say construction is soon to begin at Guantanamo on a second
permanent prison unit, a $24-million compound that will house 200 high-security
detainees. Another, $31 million unit, able to hold 100 detainees in supermax
security, opened in April.

Yet in Washington, a senior legal official acknowledged that the administration
still had "a major decision" to make about the base's future after the Supreme
Court on June 28 upheld the right of the detainees to petition the federal
courts for their freedom.

"Do we want to take them to Guantanamo?" the official asked in an interview.
"Maybe not. Maybe Guantanamo is no longer a viable option."

In the meantime, the administration is redoubling efforts to broker agreements
with foreign governments willing to take over custody of many of the roughly 560
prisoners still being held.

"We're making an effort," said Mr. Feith. "We're not eliminating the risks,
we're managing them."

But even after long and complex negotiations with an assortment of foreign
governments, the outcome of some of the 56 transfers has so far been less than
promising.

In June, Russian prosecutors abruptly freed seven former Guantanamo prisoners
whom other Russian officials had promised to prosecute upon their return. United
States officials said they did not receive so much as a warning.

In another case, a 31-year-old Dane was sent home last February after signing an
agreement to refrain from further militant activity. But last month, he said in
an interview that he was on his way to Chechnya to fight with other Muslims, and
invited Americans to use his earlier pledge "as toilet paper." (The man later
retracted those statements, and Danish officials promised to keep him under
close watch.)

In recent days, Pentagon officials have also confirmed reports that at least
nine Afghans and a Pakistani who were formerly held at Guantanamo have rejoined
militant forces after being freed outright. After refusing for months to discuss
such mistakes, Defense Department officials now cite them as a sobering
justification for the security concerns that have dominated their approach at
Guantanamo.

The Pentagon has also put in place its third successive system to evaluate the
prisoners' continuing status as enemy combatants. Administration officials hope
that the latest version - at which the detainees may plead their case with the
help of a military aide, but without access to lawyers, witnesses or exculpatory
information - will help to persuade the court that the men have been given
adequate review.

But critics insist that the changes the Pentagon has made at Guantanamo and to
the military commissions amount to half-measures that will not fix a system that
is fundamentally at odds with the country's legal values.

"As soon as the process was set up, it started to become something they never
wanted it to be," said Commander Sundel. "But it is astounding that a small
group of people could create an entirely new judicial process - without many of
the due-process guarantees we expect - and think it could survive real
challenges."

Don Van Natta Jr. contributed reporting for this article.

* * *


October 24, 2004

AFTER TERROR, A SECRET REWRITING OF MILITARY LAW

By Tim Golden

http://www.nytimes.com/2004/10/24/international/worldspecial2/24gitmo.html

WASHINGTON - In early November 2001, with Americans still staggered by the Sept.
11 attacks, a small group of White House officials worked in great secrecy to
devise a new system of justice for the new war they had declared on terrorism.

Determined to deal aggressively with the terrorists they expected to capture,
the officials bypassed the federal courts and their constitutional guarantees,
giving the military the authority to detain foreign suspects indefinitely and
prosecute them in tribunals not used since World War II.

The plan was considered so sensitive that senior White House officials kept its
final details hidden from the president's national security adviser, Condoleezza
Rice, and the secretary of state, Colin L. Powell, officials said. It was so
urgent, some of those involved said, that they hardly thought of consulting
Congress.

White House officials said their use of extraordinary powers would allow the
Pentagon to collect crucial intelligence and mete out swift, unmerciful justice.
"We think it guarantees that we'll have the kind of treatment of these
individuals that we believe they deserve," said Vice President Dick Cheney, who
was a driving force behind the policy.

But three years later, not a single terrorist has been prosecuted. Of the
roughly 560 men being held at the United States naval base at Guantanamo Bay,
Cuba, only 4 have been formally charged. Preliminary hearings for those suspects
brought such a barrage of procedural challenges and public criticism that
verdicts could still be months away. And since a Supreme Court decision in June
that gave the detainees the right to challenge their imprisonment in federal
court, the Pentagon has stepped up efforts to send home hundreds of men whom it
once branded as dangerous terrorists.

"We've cleared whole forests of paper developing procedures for these tribunals,
and no one has been tried yet," said Richard L. Shiffrin, who worked on the
issue as the Pentagon's deputy general counsel for intelligence matters. "They
just ended up in this Kafkaesque sort of purgatory."

The story of how Guantanamo and the new military justice system became an
intractable legacy of Sept. 11 has been largely hidden from public view.

But extensive interviews with current and former officials and a review of
confidential documents reveal that the legal strategy took shape as the ambition
of a small core of conservative administration officials whose political
influence and bureaucratic skill gave them remarkable power in the aftermath of
the attacks.

The strategy became a source of sharp conflict within the Bush administration,
eventually pitting the highest-profile cabinet secretaries - including Ms. Rice
and Defense Secretary Donald H. Rumsfeld - against one another over issues of
due process, intelligence-gathering and international law.

In fact, many officials contend, some of the most serious problems with the
military justice system are rooted in the secretive and contentious process from
which it emerged.

Military lawyers were largely excluded from that process in the days after Sept.
11. They have since waged a long struggle to ensure that terrorist prosecutions
meet what they say are basic standards of fairness. Uniformed lawyers now
assigned to defend Guantanamo detainees have become among the most forceful
critics of the Pentagon's own system.

Foreign policy officials voiced concerns about the legal and diplomatic
ramifications, but had little influence. Increasingly, the administration's plan
has come under criticism even from close allies, complicating efforts to
transfer scores of Guantanamo prisoners back to their home governments.

To the policy's architects, the attacks on the World Trade Center and the
Pentagon represented a stinging challenge to American power and an imperative to
consider measures that might have been unimaginable in less threatening times.
Yet some officials said the strategy was also shaped by longstanding political
agendas that had relatively little to do with fighting terrorism.

The administration's claim of authority to set up military commissions, as the
tribunals are formally known, was guided by a desire to strengthen executive
power, officials said. Its legal approach, including the decision not to apply
the Geneva Conventions, reflected the determination of some influential
officials to halt what they viewed as the United States' reflexive submission to
international law.

In devising the new system, many officials said they had Osama bin Laden and
other leaders of Al Qaeda in mind. But in picking through the hundreds of
detainees at Guantanamo Bay, military investigators have struggled to find more
than a dozen they can tie directly to significant terrorist acts, officials
said. While important Qaeda figures have been captured and held by the C.I.A.,
administration officials said they were reluctant to bring those prisoners
before tribunals they still consider unreliable.

Some administration officials involved in the policy declined to be interviewed,
or would do so only on the condition they not be identified. Others defended it
strongly, saying the administration had a responsibility to consider
extraordinary measures to protect the country from a terrifying enemy.

"Everybody who was involved in this process had, in my mind, a white hat on,"
Timothy E. Flanigan, the former deputy White House counsel, said in an
interview. "They were not out to be cowboys or create a radical new legal
regime. What they wanted to do was to use existing legal models to assist in the
process of saving lives, to get information. And the war on terror is all about
information."

As the policy has faltered, other current and former officials have criticized
it on pragmatic grounds, arguing that many of the problems could have been
avoided. But some of the criticism also has a moral tone.

"What several of us were concerned about was due process," said John A. Gordon,
a retired Air Force general and former deputy C.I.A. director who served as both
the senior counterterrorism official and homeland security adviser on President
Bush's National Security Council staff. "There was great concern that we were
setting up a process that was contrary to our own ideals."

An Aggressive Approach

The administration's legal approach to terrorism began to emerge in the first
turbulent days after Sept. 11, as the officials in charge of key agencies
exhorted their aides to confront Al Qaeda's threat with bold imagination.

"Legally, the watchword became 'forward-leaning,' " said a former associate
White House counsel, Bradford Berenson, "by which everybody meant: 'We want to
be aggressive. We want to take risks.' "

That challenge resounded among young lawyers who were settling into important
posts at the White House, the Justice Department and other agencies. Many of
them were members of the Federalist Society, a conservative legal fraternity.
Some had clerked for Supreme Court justices, Clarence Thomas and Antonin Scalia
in particular. A striking number had clerked for a prominent Reagan appointee,
Lawrence H. Silberman of the United States Court of Appeals for the District of
Columbia Circuit.

One young lawyer recalled looking around the room during a meeting with Attorney
General John Ashcroft. "Of 10 people, 7 of us were former Silberman clerks," he
said.

Mr. Berenson, then 36, had been consumed with the nomination of federal judges
until he was suddenly reassigned to terrorism issues and thrown into intense,
15-hour workdays, filled with competing urgencies and intermittent new alerts.

"All of a sudden, the curtain was lifted on this incredibly frightening world,"
he said. "You were spending every day looking at the dossiers of the world's
leading terrorists. There was a palpable sense of threat."

As generals prepared for war in Afghanistan, lawyers scrambled to understand how
the new campaign against terrorism could be waged within the confines of old
laws.

Mr. Flanigan was at the center of the administration's legal counteroffensive. A
personable, soft-spoken father of 14 children, his easy manner sometimes belied
the force of his beliefs. He had arrived at the White House after distinguishing
himself as an agile legal thinker and a Republican stalwart: During the Clinton
scandals, he defended the independent counsel, Kenneth W. Starr, saying he had
conducted his investigation "in a moderate and appropriate fashion." In 2000, he
played an important role on the Bush campaign's legal team in the Florida
recount.

In the days after the Sept. 11 attacks, Mr. Flanigan sought advice from the
Justice Department's Office of Legal Counsel on "the legality of the use of
military force to prevent or deter terrorist activity inside the United
States," according to a previously undisclosed department memorandum that was
reviewed by The New York Times.

The 20-page response came from John C. Yoo, a 34-year-old Bush appointee with a
glittering resume and a reputation as perhaps the most intellectually aggressive
among a small group of legal scholars who had challenged what they saw as the
United States' excessive deference to international law. On Sept. 21, 2001, Mr.
Yoo wrote that the question was how the Constitution's Fourth Amendment rights
against unreasonable search and seizure might apply if the military used "deadly
force in a manner that endangered the lives of United States citizens."

Mr. Yoo listed an inventory of possible operations: shooting down a civilian
airliner hijacked by terrorists; setting up military checkpoints inside an
American city; employing surveillance methods more sophisticated than those
available to law enforcement; or using military forces "to raid or attack
dwellings where terrorists were thought to be, despite risks that third parties
could be killed or injured by exchanges of fire."

Mr. Yoo noted that those actions could raise constitutional issues, but said
that in the face of devastating terrorist attacks, "the government may be
justified in taking measures which in less troubled conditions could be seen as
infringements of individual liberties." If the president decided the threat
justified deploying the military inside the country, he wrote, then "we think
that the Fourth Amendment should be no more relevant than it would be in cases
of invasion or insurrection."

The prospect of such military action at home was mostly hypothetical at that
point, but with the government taking the fight against terrorism to Afghanistan
and elsewhere around the world, lawyers in the administration took the same
"forward-leaning" approach to making plans for the terrorists they thought would
be captured.

The idea of using military commissions to try suspected terrorists first came to
Mr. Flanigan, he said, in a phone call a couple of days after the attacks from
William P. Barr, the former attorney general under whom Mr. Flanigan had served
as head of the Justice Department's Office of Legal Counsel during the first
Bush administration.

Mr. Barr had first suggested the use of military tribunals a decade before, to
try suspects in the bombing of Pan Am Flight 103 over Lockerbie, Scotland.
Although the idea made little headway at the time, Mr. Barr said he reminded Mr.
Flanigan that the Legal Counsel's Office had done considerable research on the
question. Mr. Flanigan had an aide call for the files.

"I thought it was a great idea," he recalled.

Military commissions, he thought, would give the government wide latitude to
hold, interrogate and prosecute the sort of suspects who might be silenced by
lawyers in criminal courts. They would also put the control over prosecutions
squarely in the hands of the president.

The same ideas were taking hold in the office of Vice President Cheney,
championed by his 44-year-old counsel, David S. Addington. At the time, Mr.
Addington, a longtime Cheney aide with an indistinct portfolio and no real
staff, was not well-known even in the government. But he would become legendary
as a voraciously hard-working official with strongly conservative views, an
unusually sharp pen and wide influence over military, intelligence and other
matters. In a matter of months, he would make a mark as one of the most
important architects of the administration's legal strategy against foreign
terrorism.

Beyond the prosecutorial benefits of military commissions, the two lawyers saw a
less tangible, but perhaps equally important advantage. "From a political
standpoint," Mr. Flanigan said, "it communicated the message that we were at
war, that this was not going to be business as usual."

Changing the Rules

In fact, very little about how the tribunal policy came about resembled business
as usual. For half a century, since the end of World War II, most major
national-security initiatives had been forged through interagency debate. But
some senior Bush administration officials felt that process placed undue power
in the hands of cautious, slow-moving foreign policy bureaucrats. The sense of
urgency after Sept. 11 brought that attitude to the surface.

Little more than a week after the attacks, officials said, the White House
counsel, Alberto F. Gonzales, set up an interagency group to draw up options for
prosecuting terrorists. They came together with high expectations.

"We were going to go after the people responsible for the attacks, and the
operating assumption was that we would capture a significant number of Al Qaeda
operatives," said Pierre-Richard Prosper, the State Department official assigned
to lead the group. "We were thinking hundreds."

Mr. Prosper, then 37, had just been sworn in as the department's ambassador-at-
large for war crimes issues. As a prosecutor, he had taken on street gangs and
drug Mafias and had won the first genocide conviction before the International
Criminal Tribunal for Rwanda. Even so, some administration lawyers eyed him
suspiciously - as more diplomat than crime-fighter.

Mr. Gonzales had made it clear that he wanted Mr. Prosper's group to put forward
military commissions as a viable option, officials said. The group laid out
three others - criminal trials, military courts-martial and tribunals with both
civilian and military members, like those used for Nazi war criminals at
Nuremberg.

Representatives of the Justice Department's criminal division, which had
prosecuted a string of Qaeda defendants in federal district court over the
previous decade, argued that the federal courts could do the job again. The
option of toughening criminal laws or adapting the courts, as several European
countries had done, was discussed, but only briefly, two officials said.

"The towers were still smoking, literally," Mr. Prosper said. "I remember
asking: Can the federal courts in New York handle this? It wasn't a legal
question so much as it was logistical. You had 300 Al Qaeda members,
potentially. And did we want to put the judges and juries in harm's way?"

Lawyers at the White House saw criminal courts as a minefield, several officials
said.

Much of the evidence against terror suspects would be classified intelligence
that would be difficult to air in court or too sketchy to meet federal
standards, the lawyers warned. Another issue was security: Was it safe to try
Osama bin Laden in Manhattan, where he was facing federal charges for the 1998
bombings of American Embassies in East Africa?

Then there was a tactical question. To act pre-emptively against Al Qaeda, the
authorities would need information that defense lawyers and due-process rules
might discourage suspects from giving up.

Mr. Flanigan framed the choice starkly: "Are we going to go with a system that
is really guaranteed to prevent us from getting information in every case or are
we going to go another route?"

Military commissions had no statutory rules of their own. In past American wars,
when such tribunals had been used to carry out battlefield justice against
spies, saboteurs and others accused of violating the laws of war, they had
generally hewed to prevailing standards of military justice. But the advocates
for commissions in the Bush administration saw no reason they could not adapt
the rules, officials said. Standards of proof could be lowered. Secrecy
provisions could be expanded. The death penalty could be more liberally applied.

But some members of the interagency group saw it as more complicated. Terrorism
had not been clearly established as a war crime under international law. Writing
new law for a military tribunal might end up being more difficult than
prosecuting terrorism cases in existing courts.

By late October 2001, the White House lawyers had grown impatient with what they
saw as the dithering of Mr. Prosper's group and what one former official called
the "cold feet" of some of its members. Mr. Flanigan said he thought the
government needed to move urgently in case a major terrorist linked to the
attacks was apprehended.

He gathered up the research that the Prosper group had completed on military
commissions and took charge of the matter himself. Suddenly, the other options
were off the table and the Prosper group was out of business.

"Prosper is a thoughtful, gentle, process-oriented guy," the former official
said. "At that time, gentle was not an adjective that anybody wanted."

A Secretive Circle

With the White House in charge, officials said, the planning for tribunals moved
forward more quickly, and more secretly. Whole agencies were left out of the
discussion. So were most of the government's experts in military and
international law.

The legal basis for the administration's approach was laid out on Nov. 6 in a
confidential 35-page memorandum sent to Mr. Gonzales from Patrick F. Philbin, a
deputy in the Legal Counsel's office. (Attorney General Ashcroft has refused
recent Congressional requests for the document, but a copy was reviewed by The
Times.)

The memorandum's plain legalese belied its bold assertions.

It said that the president, as commander in chief, has "inherent authority" to
establish military commissions without Congressional authorization. It concluded
that the Sept. 11 attacks were "plainly sufficient" to warrant applying the laws
of war.

Opening a debate that would later divide the administration, the memorandum also
suggested that the White House could apply international law selectively. It
stated specifically that trying terrorists under the laws of war "does not mean
that terrorists will receive the protections of the Geneva Conventions or the
rights that laws of war accord to lawful combatants."

The central legal precedent cited in the memorandum was a 1942 case in which the
Supreme Court upheld President Franklin D. Roosevelt's use of a military
commission to try eight Nazi saboteurs who had sneaked into the United States
aboard submarines. Since that ruling, revolutions had taken place in both
international and military law, with the adoption of the Geneva Conventions in
1949 and the Uniform Code of Military Justice in 1951. Even so, the Justice
memorandum said the 1942 ruling had "set a clear constitutional analysis" under
which due process rights do not apply to military commissions.

Roosevelt, too, created his military commission without new and explicit
Congressional approval, and authorized the military to fashion its own
procedural rules. He also established himself, rather than a military judge, as
the "final reviewing authority" for the case.

Mr. Addington seized on the Roosevelt precedent as a model, two people involved
in the process said, despite vast differences. Roosevelt acted against enemy
agents in a traditional war among nations. Mr. Bush would be asserting the same
power to take on a shadowy network of adversaries with no geographic boundaries,
in a conflict with no foreseeable end.

Mr. Addington, who drafted the order with Mr. Flanigan, was particularly
influential, several officials said, because he represented Mr. Cheney and
brought formidable experience in national-security law to a small circle of
senior officials. Mr. Addington turned down several requests for interviews and
a spokesman for the vice president's office declined to comment.

"He was probably the only one there who would know what an order would look
like, what it would say," a former Justice Department official said, noting Mr.
Addington's work at the Defense Department, the C.I.A., and Congressional
intelligence committees. "He didn't have authority over anyone. But he's a
persuasive guy."

To many officials outside the circle, the secrecy was remarkable.

While Mr. Ashcroft and his deputy, Larry D. Thompson, were closely consulted,
the head of the Justice Department's criminal division, Michael Chertoff, who
had argued for trying terror suspects in federal court, saw the military order
only when it was published, officials said. Mr. Rumsfeld was kept informed of
the plan mainly through his general counsel, William J. Haynes II, several
Pentagon officials said.

Many of the Pentagon's experts on military justice, uniformed lawyers who had
spent their careers working on such issues, were mostly kept in the dark. "I
can't tell you how compartmented things were," said retired Rear Adm. Donald J.
Guter, who was then the Navy's senior military lawyer, or judge advocate
general. "This was a closed administration."

A group of experienced Army lawyers had been meeting with Mr. Haynes repeatedly
on the process, but began to suspect that what they said did not resonate
outside the Pentagon, several of them said.

On Friday, Nov. 9, Defense Department officials said, Mr. Haynes called the head
of the team, Col. Lawrence J. Morris, into his office to review a draft of the
presidential order. He was given 30 minutes to study it but was not allowed to
keep a copy or even take notes.

The following day, the Army's judge advocate general, Maj. Gen. Thomas J. Romig,
hurriedly convened a meeting of senior military lawyers to discuss a response.
The group worked through the Veterans Day weekend to prepare suggestions that
would have moved the tribunals closer to existing military justice. But when the
final document was issued that Tuesday, it reflected none of the officers'
ideas, several military officials said. "They hadn't changed a thing," one
official said.

In fact, while the military lawyers were pulling together their response, they
were unaware that senior administration officials were already at the White
House putting finishing touches on the plan. At a meeting that Saturday in the
Roosevelt Room, Mr. Cheney led a discussion among Attorney General Ashcroft, Mr.
Haynes of the Defense Department, the White House lawyers and a few other aides.

Senior officials of the State Department and the National Security Council staff
were excluded from final discussions of the policy, even at a time when they
were meeting daily about Afghanistan with the officials who were drafting the
order. According to two people involved in the process, Mr. Cheney advocated
withholding the draft from Ms. Rice and Secretary Powell.

When the two cabinet members found out about the military order - upon its
public release - Ms. Rice was particularly angry, several senior officials said.
Spokesmen for both officials declined to comment.

Mr. Bush played only a modest role in the debate, senior administration
officials said. In an initial discussion, he agreed that military commissions
should be an option, the officials said. Later, Mr. Cheney discussed a draft of
the order with Mr. Bush over lunch, one former official said. The president
signed the three-page order on Nov. 13.

No ceremony accompanied the signing, and the order was released to the public
that day without so much as a press briefing. But its historic significance was
unmistakable.

The military could detain and prosecute any foreigner whom the president or his
representative determined to have "engaged in, aided or abetted, or conspired to
commit" terrorism. Echoing the Roosevelt order, the Bush document promised "free
and fair" tribunals but offered few guarantees: There was no promise of public
trials, no right to remain silent, no presumption of innocence. As in 1942,
guilt did not necessarily have to be proven beyond a reasonable doubt and a
death sentence could be imposed even with a divided verdict.

Despite those similarities, some military and international lawyers were struck
by the differences.

"The Roosevelt order referred specifically to eight people, the eight Nazi
saboteurs," said Mr. Shiffrin, who was then the Defense Department's deputy
general counsel for intelligence matters and had studied the Nazi saboteurs'
case. "Here we were putting in place a parallel system of justice for a universe
of people who we had no idea about - who they would be, how many of them there
would be. It was a very dramatic measure."

Mounting Criticism

The White House did its best to play down the drama, but criticism of the order
was immediate and widespread.

Civil libertarians and some Congressional leaders saw an attempt to supplant the
criminal justice system. Critics also worried about the concentration of power:
The president or his proxies would define the crimes (often after an act had
been committed); set the rules for trial; and choose the judges, juries and
appellate panels.

Senator Patrick J. Leahy, the Vermont Democrat who was then chairman of the
Senate Judiciary Committee, was among a handful of legislators who argued that
the administration's plan required explicit Congressional authorization. The
Congress had just passed the Patriot Act by a huge margin, and Mr. Leahy
proposed authorizing military commissions, but with some important changes,
including a presumption of innocence for defendants and appellate review by the
Supreme Court.

Critics seized on complaints from abroad, including an announcement from the
Spanish authorities that they would not extradite some terrorist suspects to the
United States if they would face the tribunals. "We are the most powerful nation
on earth," Mr. Leahy said. "But in the struggle against terrorism, we don't have
the option of going it alone. Would these military tribunals be worth
jeopardizing the cooperation we expect and need from our allies?"

Senators called for Mr. Rumsfeld and Mr. Ashcroft to testify about the tribunals
plan. Instead, the administration sent Mr. Prosper from the State Department and
Mr. Chertoff of the Justice Department - both of whom had questioned the use of
commissions and were later excluded from the administration's final
deliberations.

But the Congressional opposition melted in the face of opinion polls showing
strong support for the president's measures against terrorism.

There was another reason fears were allayed. With the order signed, the Pentagon
was writing rules for exactly how the commissions would be conducted, and an
early draft that was leaked to the news media suggested defendants' rights would
be expanded. Mr. Rumsfeld, who assembled a group of outside legal experts -
including some who had worked on World War II-era tribunals - to consult on the
rules, said critics' concerns would be taken into account.

But all of the critics were not outside the administration.

Many of the Pentagon's uniformed lawyers were angered by the implication that
the military would be used to deliver "rough justice" for the terrorists. The
Uniform Code of Military Justice had moved steadily into line with the due-
process standards of the federal courts, and senior military lawyers were proud
and protective of their system. They generally supported using commissions for
terrorists, but argued that the system would not be fair without greater rights
for defendants.

"The military lawyers would from time to time remind the civilians that there
was a Constitution that we had to pay attention to," said Admiral Guter, who,
after retiring as the Navy judge advocate general, signed a "friend of the
court" brief on behalf of plaintiffs in the Guantanamo Supreme Court case.

Even as uniformed lawyers were given a greater role in writing rules for the
commissions, they still felt out of the loop.

In early 2002, Admiral Guter said, during a weekly lunch with Mr. Haynes and the
top lawyers for the military branches, he raised the issue with Mr. Haynes
directly: "We need more information."

Mr. Haynes looked at him coldly. "No, you don't," he quoted Mr. Haynes as
saying.

Mr. Haynes declined to comment on the exchange.

Lt. Col. William K. Lietzau, a Yale-trained Marine lawyer on Mr. Haynes's staff,
often found himself in the middle. "I could see how the JAGs were frustrated
that the task of setting up the commissions hadn't been delegated to them," he
said, referring to the senior military lawyers. "On the other hand, I could see
how some of their recommendations frustrated the leadership because they didn't
always appear to embrace the paradigm shift needed to deal with terrorism."

Some Justice Department officials also urged changes in the commission rules,
current and former officials said. While Attorney General Ashcroft staunchly
defended the policy in public, in a private meeting with Pentagon officials, he
said some of the proposed commission rules would be seen as "draconian," two
officials said.

On nearly every issue, interviews and documents show, the harder line was staked
out by White House lawyers: Mr. Addington, Mr. Gonzales and Mr. Flanigan. They
opposed allowing civilian lawyers to assist the tribunal defendants, as military
courts-martial permit, or allowing civilians to serve on the appellate panel
that would oversee the commissions. They also opposed granting defendants a
presumption of innocence.

In the end, Mr. Rumsfeld compromised. He granted defendants a presumption of
innocence and set "beyond a reasonable doubt" as a standard for proving guilt.
He also allowed the defendants to hire civilian lawyers, but restricted the
lawyers' access to case information. And he gave the presiding officer at a
tribunal license to admit any evidence he thought might be convincing to a
"reasonable person."

One right the administration sought to deny the prisoners was the ability to
appeal the legality of their detentions in federal court. The administration had
done its best to decide the question when searching for a place to detain
hundreds of prisoners captured in Afghanistan. Every location it seriously
considered - including an American military base in Germany and islands in the
South Pacific - was outside the United States and, the administration believed,
beyond the reach of the federal judiciary.

On Dec. 28, 2001, after officials settled on Guantanamo Bay, Mr. Philbin and Mr.
Yoo told the Pentagon in a memorandum that it could make a "very strong" claim
that prisoners there would be outside the purview of American courts. But the
memorandum cautioned that a reasonable argument could also be made that
Guantanamo "while not part of the sovereign territory of the United States, is
within the territorial jurisdiction of a federal court." That warning would come
back to haunt the administration.

A Shift in Power

Some of the officials who helped design the new system of justice would later
explain the influence they exercised in the chaotic days after Sept. 11 as a
response to a crisis. But a more enduring shift of power within the
administration was taking place - one that became apparent in a decision that
would have significant consequences for how terror suspects were interrogated
and detained.

At issue was whether the administration would apply the Geneva Conventions to
the conflicts with Al Qaeda and the Taliban and whether those enemies would be
treated as prisoners of war.

Based on the advice of White House and Justice Department lawyers, Mr. Bush
initially decided on Jan. 18, 2002, that the conventions would not apply to
either conflict. But at a meeting of senior national security officials several
days later, Secretary of State Powell asked him to reconsider.

Mr. Powell agreed that the conventions did not apply to the global fight against
Al Qaeda. But he said troops could be put at risk if the United States disavowed
the conventions in dealing with the Taliban - the de facto government of
Afghanistan. Both Mr. Rumsfeld and the chairman of the Joint Chiefs of Staff,
Gen. Richard B. Myers, supported his position, Pentagon officials said.

In a debate that included the administration's most experienced national-
security officials, a voice heard belonged to Mr. Yoo, only a deputy in the
Office of Legal Counsel. He cast Afghanistan as a "failed state," and said its
fighters should not be considered a real army but a "militant, terrorist-like
group." In a Jan. 25 memorandum, the White House counsel, Mr. Gonzales,
characterized that opinion as "definitive," although it was not the final basis
for the president's decision.

The Gonzales memorandum suggested that the "new kind of war" Mr. Bush wanted to
fight could hardly be reconciled with the "quaint" privileges that the Geneva
Conventions gave to prisoners of war, or the "strict limitations" they imposed
on interrogations.

Military lawyers disputed the idea that applying the conventions would
necessarily limit interrogators to the name, rank and serial number of their
captives. "There were very good reasons not to designate the detainees as
prisoners of war, but the claim that they couldn't be interrogated was not one
of them," Colonel Lietzau said. Again, though, such questions were scarcely
heard, officials involved in the discussions said.

Mr. Yoo's rise reflected a different approach by the Bush administration to
sensitive legal questions concerning foreign affairs, defense and intelligence.

In past administrations, officials said, the Office of Legal Counsel usually
weighed in with opinions on questions that had already been deliberated by the
legal staffs of the agencies involved. Under Mr. Bush, the office frequently had
a first and final say. "O.L.C. was definitely running the show legally, and John
Yoo in particular," a former Pentagon lawyer said. "He's kind of fun to be
around, and he has an opinion on everything. Even though he was quite young, he
exercised disproportionate authority because of his personality and his strong
opinions."

Mr. Yoo's influence was amplified by friendships he developed not just with Mr.
Addington and Mr. Flanigan, but also Mr. Haynes, with whom he played squash as
often as three or four times a week at the Pentagon Officers Athletic Club.

If the Geneva Conventions debate raised Mr. Yoo's stature, it had the opposite
effect on lawyers at the State Department, who were later excluded from
sensitive discussions on matters like the interrogation of detainees, officials
from several agencies said.

"State was cut out of a lot of this activity from February of 2002 on," one
senior administration official said. "These were treaties that we were dealing
with; they are meant to know about that."

The State Department legal adviser, William H. Taft IV, was shunned by the
lawyers who dominated the detainee policy, officials said. Although Mr. Taft had
served as the deputy secretary of defense during the Reagan administration, more
conservative colleagues whispered that he lacked the constitution to fight
terrorists.

"He was seen as ideologically squishy and suspect," a former White House
official said. "People did not take him very seriously."

Through a State Department spokesman, Richard A. Boucher, Mr. Taft declined to
comment.

The rivalries could be almost adolescent. When field trips to Guantanamo Bay
were arranged for administration lawyers, the invitations were sometimes relayed
last to the State Department and National Security Council, officials said, in
the hope that lawyers there would not be able to go on short notice.

It was on the first field trip, 10 days after detainees began to arrive there on
Jan. 11, 2002, that White House lawyers made clear their intention to move
forward quickly with military commissions.

On the flight home, several officials said, Mr. Addington urged Mr. Gonzales to
seek a blanket designation of all the detainees being sent to Guantanamo as
eligible for trial under the president's order. Mr. Gonzales agreed.

The next day, the Pentagon instructed military intelligence officers at the base
to start filling out one-page forms for each detainee, describing their alleged
offenses. Weeks later, Mr. Haynes issued an urgent call to the military
services, asking them to submit nominations for a chief prosecutor.

The first trials, many military and administration officials believed, were just
around the corner.Next: A Policy Unravels

[ Jack Begg contributed research for this article. ]

* * *


October 21, 2004

FOR BOSNIA, GETTING 6 FREED FROM GUANTANAMO IS A BALANCING ACT

By Nicholas Wood

http://www.nytimes.com/2004/10/21/international/europe/21bosnia.html

SARAJEVO, Bosnia and Herzegovina, Oct. 20 - Three years after six men were
accused of plotting to blow up the American and British Embassies here, the
Bosnian government is seeking their return. The six were handed over to United
States peacekeepers here and are currently held at Guantanamo Bay, the American
military base in Cuba.

A court here in January 2002 dropped charges against the men for lack of
evidence and ordered them released. The men, all Algerians who claim Bosnian
citizenship or residency, were immediately handed over to the peacekeepers by
Bosnian police, expelled, and eventually taken to Guantanamo Bay.

Like the rest of the detainees held in Guantanamo, they have been classified by
the United States as enemy combatants whose status is being examined by a
military tribunal and the Defense Department. But unlike most of their fellow
prisoners, they were not taken captive in conflict zones, like Afghanistan, and
had been living in Bosnia for several years.

The men's continued detention has presented the Bosnian government with a
difficult balancing act, officials here said.

Under pressure from Parliament and human rights officials, the government has
recently sought to find out more about the men's status and has taken recent
steps to meet its legal obligations to defend four of them who hold Bosnian
citizenship.

At the same time, the government is also eager to appear as a strong ally to the
United States and avoid the impression that Bosnia is providing a safe haven for
Islamic extremists.

In July, a member of Bosnia's justice ministry, Amir Pilav, visited four of the
men in Cuba. In a recent interview, he outlined the possibility that all six men
could be returned to Bosnia and set free, or face trial on minor charges.

He said all criminal proceedings against the men concerning the suspected plot
to attack the embassies had been dropped in Bosnia, although two of the men,
Saber Lahmer and Belkasim Ben Sayer, could faces charges of having used false
documents to apply for residency. The official report on the visit, and what
possible action might now be pursued, will discussed by the government next
week.

Concerns over the presence of Islamists in Bosnia have existed since Muslim
fighters from the Middle East and North Africa joined the Bosnian conflict from
1992 to 1995 to help Bosnia's Muslims. While many returned home after the war,
others stayed on and in many cases married Bosnian women.

Four of the six detainees have Bosnian wives.

Human rights observers and former Bosnian officials charge that the government
has flouted its obligations to the men, partly as result of United Nations
pressure. Four of the group had their Bosnian citizenship stripped when they
were expelled from the country.

The former head of Bosnia's anti-terrorist task force, Rasim Kadic, said in an
interview that Bosnia has been unable to defend the men's interests properly for
fear of angering the United States.

The American Embassy here declined requests for an interview.

The Bosnian government "had no way out," Mr. Kadic said. "We had to practically
sign them away. The presence of U.S. soldiers here is a guarantee for Bosnia for
a long time to come, and we have to pay a price."

* * *


October 17, 2004

BROAD USE CITED OF HARSH TACTICS AT BASE IN CUBA

By Neil A. Lewis

http://www.nytimes.com/2004/10/17/politics/17gitmo.html

WASHINGTON, Oct. 16 - Many detainees at Guantanamo Bay were regularly subjected
to harsh and coercive treatment, several people who worked in the prison said in
recent interviews, despite longstanding assertions by military officials that
such treatment had not occurred except in some isolated cases.

The people, military guards, intelligence agents and others, described in
interviews with The New York Times a range of procedures that included treatment
they said was highly abusive occurring over a long period of time, as well as
rewards for prisoners who cooperated with interrogators.

One regular procedure that was described by people who worked at Camp Delta, the
main prison facility at the naval base in Cuba, was making uncooperative
prisoners strip to their underwear, having them sit in a chair while shackled
hand and foot to a bolt in the floor, and forcing them to endure strobe lights
and screamingly loud rock and rap music played through two close loudspeakers,
while the air-conditioning was turned up to maximum levels, said one military
official who witnessed the procedure. The official said that was intended to
make the detainees uncomfortable, as they were accustomed to high temperatures
both in their native countries and their cells.

Such sessions could last up to 14 hours with breaks, said the official, who
described the treatment after being contacted by The Times.

"It fried them," the official said, who said that anger over the treatment the
prisoners endured was the reason for speaking with a reporter. Another person
familiar with the procedure who was contacted by The Times said: "They were very
wobbly. They came back to their cells and were just completely out of it."

The new information comes from a number of people, some of whom witnessed or
participated in the techniques and others who were in a position to know the
details of the operation and corroborate their accounts.

Those who spoke of the interrogation practices at the naval base did so under
the condition that their identities not be revealed. While some said it was
because they remained on active duty, they all said that being publicly
identified would endanger their futures. Although some former prisoners have
said they saw and experienced mistreatment at Guantanamo, this is the first time
that people who worked there have provided detailed accounts of some
interrogation procedures.

One intelligence official said most of the intense interrogation was focused on
a group of detainees known as the "Dirty 30" and believed to be the best
potential sources of information.

In August, a report commissioned by Defense Secretary Donald H. Rumsfeld found
that tough techniques approved by the government were rarely used, but the
sources described a broader pattern that went beyond even the aggressive
techniques that were permissible.

The issue of what were permissible interrogation techniques has produced a
vigorous debate within the government that burst into the open with reports of
abuses at Abu Ghraib prison in Baghdad and is now the subject of several
investigations.

Since the Sept. 11 attacks and the war in Afghanistan, the administration has
wrestled with the issue of what techniques are permissible, with many arguing
that the campaign against terrorism should entitle them to greater leeway.
Alberto R. Gonzales, the White House counsel said, for example, in one
memorandum that the Geneva Conventions were "quaint" and not suitable for the
war against terrorism.

David Sheffer, a senior State Department human rights official in the Clinton
administration who teaches law at George Washington University, said the
procedure of shackling prisoners to the floor in a state of undress while
playing loud music - the Guantanamo sources said it included the bands Limp
Bizkit and Rage Against the Machine, and the rapper Eminem - and lights clearly
constituted torture. "I don't think there's any question that treatment of that
character satisfies the severe pain and suffering requirement, be it physical or
mental, that is provided for in the Convention Against Torture," Mr. Sheffer
said.

Pentagon officials would not comment on the details of the allegations. Lt.
Cmdr. Alvin Plexico issued a Defense Department statement in response to
questions, saying that the military was providing a "safe, humane and
professional detention operation at Guantanamo that is providing valuable
information in the war on terrorism."

The statement said: "Guantanamo guards provide an environment that is stable,
secure, safe and humane. And it is that environment that sets the conditions for
interrogators to work successfully and to gain valuable information from
detainees because they have built a relationship of trust, not fear."

The sources portrayed a system of punishment and reward, with prisoners who were
favored for their cooperation with interrogators given the privilege of spending
time in a large room nicknamed "the love shack" by the guards. In that room,
they were free to relax and had access to magazines, books, a television and a
video player and some R-rated movies, along with the use of a water pipe to
smoke aromatic tobaccos. They were also occasionally given milkshakes and
hamburgers from the McDonald's on the base.

The Pentagon said the information gathered from the detainees "has undoubtedly
saved the lives of our soldiers in the field," adding: "And that information
also saves the lives of innocent civilians at home and abroad. At Guantanamo we
are holding and interrogating people that are a clear danger to the U.S. and our
allies and they are providing valuable information in the war on terrorism."

Although many critics of the detentions at Guantanamo have said that the
majority of the roughly 590 inmates are low-level fighters who have little
intelligence to impart, Pentagon and intelligence officials have insisted that
the facility houses many dangerous veteran terrorists and officials of Al Qaeda.

The intelligence official said that many of those imprisoned at Guantanamo had
valuable information but that it was not always clear what their standing in Al
Qaeda was. The official said the first four detainees now facing war crimes
charges before a military tribunal at the base were specifically chosen because
they had not been harshly treated and therefore would be less likely to make any
embarrassing allegations.

The people who worked at the prison also described as common another procedure
in which an inmate was awakened, subjected to an interrogation in a facility
known as the Gold Building, then returned to a different cell. As soon as the
guards determined the inmate had fallen into a deep sleep, he was awakened again
for interrogation after which he would be returned to yet a different cell. This
could happen five or six times during a night, they said.

Much of the harsh treatment described by the sources was said to have occurred
as recently as the early months of this year. After the scandal about
mistreatment of prisoners at the Abu Ghraib prison in Iraq became public in
April, all harsh techniques were abruptly suspended, they said.

The new accounts of mistreatment at Guantanamo provide fresh evidence about how
practices there may have contributed to the abuses at Abu Ghraib. One
independent military panel said in a report that the approach used at Guantanamo
had "migrated to Abu Ghraib.

The vigorous debate within the administration about what techniques were
permissible in interrogations was set off when the Justice Department provided a
series of memorandums to the White House and Defense Department providing narrow
definitions of torture. In February 2002, Mr. Bush ordered that the prisoners at
Guantanamo be treated "humanely and, to the extent appropriate with military
necessity, in a manner consistent with" the Geneva Conventions.

In March 2002, a team of administration lawyers accepted the Justice
Department's view, concluding in a memorandum that President Bush was not bound
by either the Convention Against Torture or a federal antitorture statute
because he had the authority to protect the nation from terrorism. When some of
the memorandums were disclosed, the administration tried to distance itself from
the rationale for the harsher treatment.

At the request of military intelligence officials who complained of tenacious
resistance by some subjects, Mr. Rumsfeld approved a list of 16 techniques for
use at Guantanamo in addition to the 17 methods in the Army Field Manual in
December 2002. But he suspended those approvals in January 2003 after some
military lawyers complained they were excessive and possibly unlawful.

In April 2003, after a review, Mr. Rumsfeld issued a final policy approving of
24 techniques, some of which needed his permission to be used.

But the approved techniques did not explicitly cover some that were used,
according to the new accounts. The only time that using loud music and lights
seems to appear in the documents, for example, is as a proposal that seems never
to have been adopted. The April 16 memorandum allows interrogators to place a
detainee "in a setting that may be less comfortable" but should not "constitute
a substantial change in environmental quality."

Officials said the guards' patience was often stretched, especially when inmates
threw human waste at the military police officers, a frequent occurrence. The
guards, for their part, had their own tricks, including replacing the prayer oil
in little bottles given to the inmates with a caustic pine-smelling floor
cleaner.

An August 2004 report by a panel headed by James R. Schlesinger, the former
defense secretary, said the harsher approved techniques on Mr. Rumsfeld's list
were used on only two occasions. In addition, the report said, there were about
eight abuses by guards at Guantanamo that occurred and were investigated.

In guided tours of Guantanamo provided to the news media and members of
Congress, the military authorities contended that the system of rewards and
punishments affected only issues like whether the inmates could be deprived of
books, blankets and toilet articles. The interrogation sessions themselves, the
officials consistently said, did not employ any harsh treatment but were devised
only to build a trusting relationship between the interrogator and the detainee.

* * *


September 17, 2004

NEW CHARGES RAISE QUESTIONS ON ABUSE AT AFGHAN PRISONS

By Carlotta Gall and David Rohde

http://www.nytimes.com/2004/09/17/international/asia/17afghan.html

KABUL, Afghanistan, Sept. 16 - Sgt. James P. Boland, a reserve military police
soldier from Cincinnati, watched as a subordinate beat an Afghan prisoner,
Mullah Habibullah, 30, the brother of a former Taliban commander, according to a
military charge sheet released recently.

The report also said that Sergeant Boland shackled an Afghan named Dilawar,
chaining his hands above his shoulders, and denied medical care to the man, a
22-year-old taxi driver, whose family said he had never spent a night away from
his mother and father before being taken to the American air base at Bagram, 40
miles north of Kabul. The two detainees died there within a week of each other
in December 2002.

Now, 21 months later, the Army has charged Sergeant Boland with assault and
other crimes and investigators are recommending that two dozen other American
soldiers face criminal charges, including negligent homicide, or other
punishments for abuses that occurred more than a year before the scandal at the
Abu Ghraib prison in Iraq.

Far from settling the cases, the charges raise new questions about who
authorized the harsh interrogation methods used in Afghanistan and about the
contradictory statements made by American military officials who, when
questioned shortly after the men's deaths, said they had died of natural causes.

The military's findings now support accounts by former Afghan prisoners who said
they were subjected to abuses that, while just as harrowing as any in Iraq, have
drawn far less attention or official scrutiny lacking the kinds of photographs
that so shocked the world from Abu Ghraib this spring.

Pentagon and other American officials have said the harsh interrogation methods
described by the Afghans and outlined in the Army's charges were not authorized
for use at Bagram.

A classified portion of an Army report into the Abu Ghraib scandal, recently
obtained by The New York Times, shows that on Dec. 2, 2002, Defense Secretary
Donald H. Rumsfeld had approved such methods for use only at the American
detention center at Guantanamo Bay, Cuba.

"Interrogation techniques intended only for Guantanamo came to be used in
Afghanistan and Iraq," a separate report by an independent panel, appointed by
Mr. Rumsfeld and headed by James R. Schlesinger, a former defense secretary,
found in August. "In Afghanistan, techniques included removal of clothing,
isolating people for long periods of time, use of stress positions, exploiting
fear of dogs, and sleep and light deprivation."

Mr. Habibullah and Mr. Dilawar died at Bagram after enduring at least some of
those interrogation methods. A pending report by the naval inspector general,
due to be released in the next few weeks, is expected to examine how and why
those methods were being used here. Military and government officials have yet
to answer those questions.

In addition, recent revelations that the Central Intelligence Agency kept the
names of dozens of detainees at Abu Ghraib and other facilities in Iraq off
official rosters, to hide them from Red Cross inspectors, have raised fresh
concerns over the possibility of similar practices here.

Lt. Gen. Daniel K. McNeill, the commander of American forces in Afghanistan in
2002 and 2003, said in an e-mail response to questions this week that in
previous interviews he had always given the best information available to him.
Sergeant Boland could not be reached for comment.

In a February 2003 interview, General McNeill acknowledged an investigation into
Mr. Dilawar's death. But neither he nor other officials disclosed that military
pathologists had described both deaths as homicides caused by beatings.

At the time, General McNeill and other military officials said in interviews
that both Afghan prisoners had died of natural causes. "We haven't found
anything that requires us to take extraordinary action," General McNeill said at
the time. "We are going to let this investigation run its course."

He described Mr. Dilawar as having an advanced heart condition and said his
coronary arteries were 85 percent blocked.

When General McNeill was asked at the time whether either prisoner had suffered
injuries in custody, something described on both death certificates, he replied,
"Presently, I have no indication of that." In a later interview, he said the men
had suffered injuries before their arrival at Bagram.

Asked if prisoners' hands were being chained to ceilings, he denied it. "We are
not chaining people to the ceilings," he said. "I think you asked me that
question before."

A military pathologist's finding on Mr. Dilawar's death certificate was revealed
only when a journalist from The New York Times visited his family in their
isolated village in the province of Khost and read the form, which was written
in English, a language they could not understand.

The spokesman for the American-led force in Afghanistan, Col. Roger King, then
confirmed the authenticity of the death certificate, but played down the
pathologist's findings.

Afterward, the investigation moved slowly, and the troubled military
intelligence unit that ran the Bagram detention center was transferred to Iraq.
Members of that unit - the 519th Military Intelligence Battalion, based at Fort
Bragg, N.C. - have now been implicated in the deaths of the two Afghans as well
as in the abuses at Abu Ghraib.

After the Abu Ghraib scandal, administration and military officials portrayed
the use of the harsh interrogation methods approved by Mr. Rumsfeld as
selective, limited only to prisoners considered to be of high-intelligence
value.

Those 17 methods also included yelling at detainees, hooding them, shaving their
heads and beards, the use of minimal physical contact like poking or grabbing,
and 20-hour interrogations, according to the classified portions of the Army
report provided by a senior military official who said full disclosure would
help explain the causes behind the Abu Ghraib scandal.

Though it is not clear whether Mr. Rumsfeld was informed of the deaths of the
two Afghan prisoners, a month later he rescinded his list of interrogation
methods. In April, he approved a revised list, authorizing seven more aggressive
interrogation techniques beyond the 17 listed in the Army's field manual.

Defense officials interviewed this year said that the more aggressive methods
had been used only on two prisoners at Guantanamo Bay.

But in interviews in early 2003 and in May 2004, five former Afghan prisoners,
all of whom were later released after the military decided they posed no threat,
described detentions and interrogations under extremely harsh conditions.

Before being released, three of the men were sent from Afghanistan to Guantanamo
Bay. All said they were treated far worse in Afghanistan and that Guantanamo was
more orderly and had more rules. In all, they spent 14 months in American
detention.

Three of those interviewed said they were arrested with Mr. Dilawar after a
broken walkie-talkie and an electric stabilizer were found in his taxi several
hours after rockets were fired at an American base.

In interviews in May 2004, the three men said they were hooded and had their
arms raised and chained to the ceiling for hours and days at a time at Bagram.

All the prisoners said they were first held in second-floor isolation cells, for
periods ranging from 5 to 16 days. Later, they said, they and other prisoners
were moved to the ground floor where they were held in large chain-link cages
and barred from conversing.

One of the three men, Zakim Shah, a 20-year-old farmer, said he was kept awake
by soldiers blaring music and shouting at him. He said he grew so exhausted at
one point that he vomited.

Another, Parkhudin, a 26-year-old farmer and former soldier, said his hands were
chained to the ceiling for 8 of his 10 days in isolation and that he was hooded
for hours at a time.

"They were putting a mask over our heads, they were beating us in Bagram," he
said. "I think Dilawar died because he couldn't breathe. For me, it was very
difficult to breathe."

Mr. Parkhudin said he was forced to lie on his stomach and that a soldier then
jumped on his back. He said he believed that the Afghan in an adjoining
isolation cell was Mr. Dilawar because the prisoner cried out for his mother and
father.

The third man, Abdur Rahim, a 26-year-old baker, said that he was hooded and
that his hands were chained to the ceiling for "seven or eight days" and turned
black.

American interrogators forced him to crouch and hold his hands out in front of
him for long periods, causing intense pain in his shoulders. When he tried to
sit up, he said, "they were coming and hitting me and saying 'Don't move!' "

Two other men, interviewed in February 2003, Abdul Jabar, a 35-year-old taxi
driver, and Hakkim Shah, a 32-year-old farmer, were held at the same time as Mr.
Dilawar and described similar treatment.

Mr. Shah said he spent 16 days in upstairs rooms naked, hooded and shackled to
the ceiling for 10 days until his legs became so swollen that the shackles cut
off the blood flow and he could no longer stand. Doctors eventually removed the
shackles and allowed him to sit.

Beyond Bagram, the Central Intelligence Agency maintains a large compound, based
in the Ariana, a hotel in central Kabul, just 200 yards from the presidential
palace.

Privately, the CIA has been much criticized by Red Cross officials for providing
no information about its detainees in Afghanistan. The street where its compound
stands is blocked. The walls are covered with barbed wire. The Red Cross says it
has been denied access to the detainees held there.

A detainee from the compound, a former Taliban commander named Mullah Rocketi,
who gave himself up to American officials, said in an interview after his
release last year that he had spent eight months there. He described the
compound as reasonably comfortable and said he was not mistreated. But he said
he never saw the Red Cross. He said he was released after making a deal with
American officials, but would not provide details.

Another former Afghan commander taken there was Jan Baz Khan, who worked for the
CIA and then came under suspicion of being behind rocket attacks on an American
base, according to a United States military commander who did not want to be
named. He said the prisoner was taken there in January.

There has been no word of his release. No one knows how many other people are
held there still.

[ Eric Schmitt contributed reporting from Washington for this article. ]

* * *


August 28, 2004

U.S. Set Back on Treatment of Combatant

By Eric Lichtblau

http://www.nytimes.com/2004/08/28/politics/28hamdi.html

WASHINGTON, Aug. 27 - A federal judge on Friday ordered the government to
explain why Yaser E. Hamdi, an enemy combatant captured in Afghanistan, has
remained in solitary confinement in a military brig for more than two years,
even as prosecutors and defense lawyers are negotiating his imminent release.

The judge, Robert G. Doumar, of Federal District Court in Norfolk, Va., said in
his order that "without question, the isolation of a prisoner from the general
population for an indefinite period of time raises Eighth Amendment issues," as
well as due process concerns. The Eighth Amendment bars cruel and unusual
punishment for prisoners.

The judge noted that Mr. Hamdi, who was born in Louisiana and retains his
American citizenship, "has been incarcerated in solitary confinement,
incommunicado" for more than two years.

He ordered federal officials to produce by next Tuesday morning a sworn
statement "under penalty of perjury" from the commander of the Navy brig in
South Carolina "explaining the reasons for his solitary confinement apart from
any other prisoners or actual or alleged enemy combatants."

The Bush administration's treatment of Mr. Hamdi drew a sharp rebuke in June
from the Supreme Court, which rejected the Justice Department's assertion that
the executive branch has broad and virtually unchecked authority to detain enemy
combatants indefinitely and without access to legal counsel.

The historic decision led to negotiations for Mr. Hamdi's release and his
possible return to Saudi Arabia, and the Justice Department said in a court
filing on Thursday that the two sides had reached the rough outlines of an
agreement, with only details remaining to be worked out.

A hearing had been scheduled for Monday, but Judge Doumar agreed to postpone it
for a day - provided that the Justice Department turn over its sworn explanation
for Mr. Hamdi's solitary confinement and other materials. He ordered the
government to have Mr. Hamdi at Tuesday's at the hearing.

Mr. Hamdi's attorney, Frank W. Dunham Jr., said in a filing on Thursday that the
prisoner's indefinite detention in solitary confinement in South Carolina
amounted to cruel and unusual punishment. Even if Mr. Hamdi is not immediately
released, he said, "Hamdi's solitary incommunicado confinement should end."

* * *


August 28, 2004

OPENING WEEK OF HEARINGS IN GUANTANAMO ENDS IN DISPUTE

By Neil A. Lewis

http://www.nytimes.com/2004/08/28/politics/28gitmo.html

GUANTANAMO BAY, Cuba, Aug. 27 - The opening week of hearings in the war crimes
trials being conducted here ended Friday with disputes over a longstanding
complaint from the military defense lawyers: they have gone into the fight
outgunned by the prosecutors.

The issue arose at the hearing for Ibrahim Ahmed Mahmoud al Qosi of Sudan, who
is charged with conspiracy to commit murder and terrorism. Military prosecutors
assert that Mr. Qosi, 44, was an associate of Osama bin Laden for more than 14
years and served as a paymaster for Al Qaeda for much of that time.

Lt. Col. Sharon Shaffer, Mr. Qosi's lawyer, sat at one table next to her client,
while three military lawyers occupied the prosecution table. The three other
defendants whose hearings were held earlier this week also had fewer lawyers
than the prosecutors facing them.

Colonel Shaffer told the court that she asked in February that another lawyer be
assigned to help her, but that "someone in the chain of command denied that."
She said she stopped working on the case after she was recently told that she
had been reassigned to be the assistant chief judge of the Air Force and that
holding both positions would be a conflict.

That issue was resolved, she said, when she was told this week that she could
remain Mr. Qosi's lawyer and begin her judicial duties after this trial. But she
repeated her need for legal help, and Col. Peter E. Brownback III, the presiding
officer at the tribunal, said he would try to ensure that she received an
assistant counsel.

Colonel Shaffer also served as the chief defense lawyer for the tribunals, and
she said that shortchanging all the defense teams was a chronic problem. "I
continually see the other office increase on a daily basis," she said.

Col. Robert Swann, the chief prosecutor, strongly disagreed, telling reporters
that each lawyer from his office handled several cases, while each defense
lawyer had only one.

Colonel Swann also disclosed that his office was preparing cases against another
nine detainees and would soon make them public. After that, he said, the
prosecution will bring charges against some senior Qaeda figures whom he would
not name. But he described them as people whose names would be familiar to many
Americans.

It was not clear whether that could mean Khalid Shaikh Mohammed, the chief
planner of the Sept. 11 attacks, who is thought to be in custody somewhere other
than Guantanamo; Ramzi bin al-Shibh, another Qaeda lieutenant who officials have
said was involved in planning attacks and who may be imprisoned at Guantanamo;
or Abu Zubaydah, No. 2 leader in Al Qaeda who is thought to be imprisoned in an
undisclosed location.

The government has not said how it plans to try these men, and there has been no
previous sign that their trials are imminent.

Mr. Qosi is charged with smuggling arms and signing the checks for Mr. bin
Laden. Mr. Qosi wore a black skullcap and a long beard when he appeared Friday
in court. He told the court through a translator that he was satisfied with
having Colonel Shaffer represent him but thought she should have legal help.

* * *


August 27, 2004

ARMY'S REPORT FAULTS GENERAL IN PRISON ABUSE

By Douglas Jehl and Eric Schmitt

http://www.nytimes.com/2004/08/27/politics/27abuse.html

WASHINGTON, Aug. 26 - Classified parts of the report by three Army generals on
the abuses at Abu Ghraib prison say Lt. Gen. Ricardo S. Sanchez, the former top
commander in Iraq, approved the use in Iraq of some severe interrogation
practices intended to be limited to captives held in Guantanamo Bay, Cuba, and
Afghanistan.

Moreover, the report contends, by issuing and revising the rules for
interrogations in Iraq three times in 30 days, General Sanchez and his legal
staff sowed such confusion that interrogators acted in ways that violated the
Geneva Conventions, which they understood poorly anyway.

Military officials and others in the Bush administration have repeatedly said
the Geneva Conventions applied to all prisoners in Iraq, even though members of
Al Qaeda and the Taliban held in Afghanistan and Guantanamo did not, in their
estimation, fall under the conventions.

But classified passages of the Army report say the procedures approved by
General Sanchez on Sept. 14, 2003, and the revisions made when the Central
Command found fault with the initial policy, exceeded the Geneva guidelines as
well as standard Army doctrines.

General Sanchez and his aides have previously described the series of orders he
issued, although not in as much detail as the latest report, which was released
Wednesday with a few classified sections omitted. They have described his order
of Oct. 12 as rescinding his order of Sept. 14.

But the Army's latest review instead finds that the later order "confused
doctrine and policy even further," a classified part of the report says. It
says the memorandum, while not authorizing abuse, effectively opened the way at
Abu Ghraib last fall for interrogation techniques that Pentagon investigators
have characterized as abusive, in dozens of cases involving dozens of soldiers
at the prison in Iraq.

The techniques approved by General Sanchez exceeded those advocated in a
standard Army field manual that provided the basic guidelines for interrogation
procedures. But they were among those previously approved by the Pentagon for
use in Afghanistan and Cuba, and were recommended to General Sanchez and his
staff in the summer of 2003 in memorandums sent by a team headed by Maj. Gen.
Geoffrey Miller, a commander at Guantanamo who had been sent to Iraq by senior
Pentagon officials, and by a military intelligence unit that had served in
Afghanistan and was taking charge of interrogations at Abu Ghraib.

The report says the abusive techniques not sufficiently prohibited by General
Sanchez included isolation and the use of dogs in interrogation. It says
military police and military intelligence soldiers who used those practices
believed they had been authorized by senior commanders.

"At Abu Ghraib, isolation conditions sometimes included being kept naked in very
hot or very cold, small rooms, and/or completely darkened rooms, clearly in
violation of the Geneva Conventions," a classified part of the report said.

The passages involving General Sanchez's orders were among several deleted from
the version of the report by Maj. Gen. George R. Fay that was made public by the
Pentagon on Wednesday.

Classified parts of the 171-page report were provided to The New York Times by a
senior Defense Department official who said fuller disclosure of the findings
would help public understanding of the causes of the prisoner abuse scandal.

Army officials said Thursday that some sections of the report had been marked
secret because they referred to policy memorandums that were still classified.

But the report's discussion of the September and October orders, while critical
of General Sanchez and his staff, do not disclose many new details of the orders
and do not appear to contain sensitive material about interrogations or other
intelligence-gathering methods.

They do show in much clearer detail than ever before how interrogation practices
from Afghanistan and Guantanamo were brought to Abu Ghraib, and how poorly the
nuances of what was acceptable in Iraq were understood by military intelligence
officials in Iraq.

The classified sections of the Fay report reinforce criticisms made in another
report, by the independent panel headed by James R. Schlesinger, the former
defense secretary.

That panel argued that General Sanchez's actions effectively amounted to an
unauthorized suspension of the Geneva Conventions in Iraq by categorizing
prisoners there as unlawful combatants.

The Schlesinger panel described that reasoning as "understandable," but said
General Sanchez and his staff should have recognized that they were "lacking
specific authorization to operate beyond the confines of the Geneva
Convention."

In an interview on Thursday with reporters and editors of The Times, Gen. Paul
J. Kern, the senior officer who supervised General Fay's work, said the Fay
inquiry had not addressed whether General Sanchez was authorized to designate
detainees in Iraq as unlawful combatants, as the administration has treated
prisoners in Afghanistan.

A secret passage in the report, though, says that with General Sanchez's first
order, on Sept. 14, national policies and those of his command "collided,
introducing ambiguities and inconsistencies in policy and practice," adding,
"Policies and practices developed and approved for use on Al Qaeda and Taliban
detainees who were not afforded the protection of the Geneva Conventions now
applied to detainees who did fall under the Geneva Conventions' protections." It
goes on to cite several further problems with the order.

Asked whether General Sanchez's actions opened the door to use of interrogation
techniques from Afghanistan, General Kern said, "He didn't close the door, and
he should have."

Together, the Schlesinger and Fay reports spell out the sharpest criticism of
missteps by American commanders in Iraq involving what they described as a
crucial question of making clear to soldiers what was permitted and what was not
in interrogation of Iraqi prisoners at Abu Ghraib.

General Sanchez and his deputies have always maintained that the only approaches
they authorized for use in Iraq were consistent with the Geneva Conventions,
which spell out rules for the treatment of prisoners of war and other
combatants. They have said the directive issued by General Sanchez in October
had made it clear that the use of dogs and isolation could be used in
interrogations only with the general's approval.

"Interrogators at Abu Ghraib used both dogs and isolation as interrogation
practices," a classified part of the report said. "The manner in which they were
used on some occasions clearly violated the Geneva Conventions."

The classified section of the Fay report also sheds new light on the role played
by a secretive Special Operations Forces/Central Intelligence Agency task force
that operated in Iraq and Afghanistan as a source of interrogation procedures
that were put into effect at Abu Ghraib. It says that a July 15, 2003,
"Battlefield Interrogation Team and Facility Policy," drafted by use by Joint
Task Force 121, which was given the task of locating former government members
in Iraq, was adopted "almost verbatim" by the 519th Military Intelligence
Battalion, which played a leading role in interrogations at Abu Ghraib.

That task force policy endorsed the use of stress positions during harsh
interrogation procedures, the use of dogs, yelling, loud music, light control,
isolation and other procedures used previously in Afghanistan and Iraq.

Those measures were initially authorized by General Sanchez for use in Iraq in
his September memorandum, then revoked in the policy he issued a month later,
but not in a way understood by interrogators at Abu Ghraib to have banned those
practices, the classified version of the Fay report said.

Among those who believed, incorrectly, that the use of dogs in interrogations
could be approved without General Sanchez's approval was Col. Thomas M. Pappas,
the commander of the 205th Military Intelligence Brigade, the report said.

"Dogs as an interrogation tool should have been specifically excluded," a
classified section of the report said. It criticized General Sanchez for not
having fully considered "the implications for interrogation policy," and said
the manner in which interrogators at Abu Ghraib used both dogs and isolations as
interrogation practices "on some occasions clearly violated the Geneva
Conventions."

The role played by members of the 519th Military Intelligence Battalion, from
Fort Bragg, N.C., some of whom were identified as having taken part in the
abuses, is given particular attention in the classified parts of the report.

Members of the unit had earlier served in Afghanistan, where some were
implicated in the deaths of two detainees that are still under investigation,
and the report says commanders should have heeded more carefully the danger that
members of the unit might again be involved in abusive behavior.

The unit had worked closely with Special Operations Forces in Afghanistan, and
"at same point" it "came to possess the JTF-121 interrogation policy" used by
the joint Special Operations/C.I.A. teams, the classified section of the report
says.

* * *


August 26, 2004

SOME ABU GHRAIB ABUSES ARE TRACED TO AFGHANISTAN

By Douglas Jehl

http://www.nytimes.com/2004/08/26/politics/26ghosts.html

WASHINGTON, Aug. 25 - Some of the aggressive tactics used by American military
interrogators at Abu Ghraib prison now appear to have had their origins in
shadowy corners of the campaign against terrorism, following interrogation
techniques developed by Special Operations forces and the Central Intelligence
Agency.

Both of the Pentagon investigations made public this week found that the
practices of elite secretive forces contributed to the abuses at Abu Ghraib. The
belief that "other governmental agencies were conducting interrogations using
harsher techniques than allowed" under Army rules fostered "the belief that such
methods were condoned," according to the report released on Tuesday by the panel
headed by James R. Schlesinger.

The report released on Wednesday by Maj. Gen. George R. Fay said a flouting of
military procedures by C.I.A. officers who had conducted interrogations inside
the prison had "eroded the necessity in the minds of soldiers and civilians for
them to follow Army rules."

The suggestion that the agency's practices were in part responsible for what
went wrong at Abu Ghraib has reinforced a clash of cultures between the by-the-
books Army and the C.I.A, which is known to operate by its own rules. A C.I.A.
spokesman, Mark Mansfield, complained Wednesday that the "broad allegations"
against the agency were "not supported" by the material in the Fay Report.

General Fay and other senior officers said the C.I.A. had not shared all of the
information they had requested as part of their investigation, but Mr. Mansfield
said the C.I.A. was conducting its own "thorough" inquiry into the conduct of
the agency's employees at Abu Ghraib and elsewhere in Iraq.

More broadly, the Fay and Schlesinger reports have provided the clearest
assertion to date that the origins of some of the harsh interrogation procedures
used at Abu Ghraib rested in those drawn up for use in Afghanistan, most
specifically in a document prepared by Special Operations forces in February
2003 that allowed interrogators much more latitude than the rules later put into
effect in Iraq.

That document became the template, the reports said, for the unauthorized
practices of interrogators at Abu Ghraib from a unit of 519th Military
Intelligence Battalion, which had worked closely with paramilitary forces in
Afghanistan and was assigned to the 205th Military Intelligence Brigade in Iraq.

But the reports provided no indication of exactly what was contained in that
document, and sections of the Fay Report that appeared to describe those
practices in further detail were deleted from the version made public on
Wednesday.

The details of C.I.A. interrogation practices at Abu Ghraib and elsewhere also
remain secret, and were not spelled out in either of the Pentagon reports this
week. But government officials have acknowledged that those the agency has used
at times in the past on a small number of Qaeda prisoners held at secret
detention centers around the world are harsher than those permitted by the
military, and have in some cases included techniques like "water boarding," in
which a prisoner is made to believe that he will drown.

But the Fay Report does describe a case in which a C.I.A. officer working at Abu
Ghraib brandished a loaded weapon in an interrogation room, in violation of
military rules.

It says Lt. Col. Steven L. Jordan, the head of the military interrogation center
at the prison, became "fascinated with the 'other government agencies,' a term
used mostly to mean the Central Intelligence Agency, who were operating at the
prison," and waived a rule that should have required military officers to
monitor C.I.A. interrogations there.

In the future, the report urged, all government agencies operating in Iraq
should have to follow a uniform set of interrogation practices.

The report also describes sharp tensions between the military and the C.I.A. at
Abu Ghraib, particularly over the agency's use of the prison to hide so-called
ghost detainees, in violation of military rules.

Among the episodes described in the report were eight cases in which C.I.A.
officers persuaded military personnel to house Iraqi prisoners at Abu Ghraib
without accounting for them, including a case in which it took appeals from
Secretary of State Colin L. Powell and the Saudi government to track down three
Saudis whom the C.I.A. had installed at the prison under assumed names. The
Saudis were later released.

Intelligence officials have said they suspended that practice last January, but
defended it as sometimes appropriate temporarily, to prevent news from
circulating about the capture of individuals with particular intelligence value.

Mr. Mansfield of the C.I.A said: "We don't take issue with the report's
conclusion that military personnel were confused regarding the role and
authorities of different government entities. Better prior consultations,
including memorandums of understanding and clearer guidance, would have provided
a better guide to the military personnel on duty."

Intelligence officials said the C.I.A.'s inspector general was already carrying
out a series of investigations of the agency's involvement in alleged abuses in
Iraq, including the handling of the "ghost detainees."

Among the cases under investigation is a previously disclosed episode in
November 2003 involving the death of an Iraqi detainee who was taken to Abu
Ghraib by C.I.A. officers and whose body was wrapped in plastic and packed in
ice before being removed. The prisoner, identified in the report only as
Detainee-28, had been captured by a Navy Seal team and had been injured when
struck on the head with the butt of the rifle by a Seal, the Fay Report said.

Intelligence officials have long said they believed that members of the
military, not the C.I.A. employees, bore responsibility for the prisoner's
death, and the Fay Report said an autopsy conducted later had concluded that the
prisoner had "died of a blood clot in the head, likely as a result of injuries
he sustained during apprehension."

* * *


August 25, 2004

FIRST WAR-CRIMES CASE OPENS AT GUANTANAMO BASE

By Neil A. Lewis

http://www.nytimes.com/2004/08/25/national/25gitmo.html

GUANTANAMO BAY, Cuba, Aug. 24 - An Army colonel called to order the first United
States military tribunal proceedings since the end of World War II here on
Tuesday, opening the case against a 34-year-old Yemeni who is accused of
conspiring to commit acts of terrorism.

The Yemeni, Salim Ahmed Hamdan, thus became the first of the more than 800
people who have been imprisoned at a high-security detention center at the naval
base here to appear in court to answer charges of war crimes. He could be
sentenced to life in prison.

Mr. Hamdan, 34, has admitted that he was a driver for Osama bin Laden in
Afghanistan, but has denied the military's charges that he was involved in any
way with Al Qaeda or terrorism. The trial of Mr. Hamdan is one of four that will
formally begin this week with preliminary hearings on motions by lawyers for the
defendants, all of whom are charged with some version of conspiracy to commit
terrorism.

While the immediate focus of the proceedings is the guilt or innocence of the
four men, all those involved are keenly aware that the events in the courtroom
here are part of a wider drama involving the standing and reputation of the
United States for evenhanded justice.

The facility at Guantanamo, which now houses about 585 prisoners, has been
widely viewed by foreign governments and human rights organizations as a symbol
of Washington's willingness to flout international law. While many inmates have
been released, most of those here have been held for more than two years without
any charges being filed.

Mr. Hamdan entered a courtroom that was fashioned from an old dental clinic,
escorted by two security officers, and grinned widely when he caught sight of
his military lawyer, Lt. Cmdr. Charles Swift.

Clad in traditional Yemeni attire of a flowing white robe called a jilbab over
which he wore a suit coat and a patterned white shawl, Mr. Hamdan spoke briefly
in Arabic in response to questions from the presiding officer of the panel, Col.
Peter E. Brownback III. Mr. Hamdan said, according to the translation provided,
that he understood his right to a lawyer and was satisfied with Commander
Swift's representation but thought he should have a second lawyer, something
Commander Swift told the court he had requested many times.

Much of the morning was taken up with Commander Swift's efforts to portray
Colonel Brownback as incapable of serving impartially because of extensive
contacts with senior Pentagon officials who helped set up the military
tribunals. Colonel Brownback, who came out of retirement to serve on a tribunal,
seemed annoyed at Commander Swift's request that he step aside and said he would
forward it to the Pentagon. By the end of the day Commander Swift had challenged
the suitability of four other panel members.

Commander Swift said that Colonel Brownback should be disqualified because he
said at a July 15 meeting with some lawyers that he did not believe Guantanamo
detainees had any rights to a speedy trial. Colonel Brownback sharply denied
making the remark.

But hours later at the conclusion of the day's proceedings, Commander Swift
stunned Colonel Brownback when he said he had just learned that an audiotape of
the meeting existed and he would like to include it in his request that Colonel
Brownback be disqualified. Colonel Brownback covered his face with his hands for
several moments and then agreed to have the tape recording included.

On Wednesday, the tribunal is scheduled to begin considering the case of David
Hicks, a 29-year-old Australian drifter and convert to Islam who was apprehended
at the end of the Afghanistan war and charged with being a soldier for the
Taliban. Mr. Hicks is the only one of the four to face charges besides the
conspiracy count: attempted murder and aiding the enemy.

The tribunal will begin the cases of Ali Hamza Ahmad Sulayman al Bahlul of Yemen
on Thursday and Ibrahim Ahmed Mahmoud al Qosi of Sudan on Friday. The actual
trials with testimony may not begin for months.

Military officials have sought to emphasize the rights granted to tribunal
defendants, like the presumption of innocence, and seem baffled by complaints
and news reports that emphasize the features of the proceedings that fall short
of the standards of American justice.

The trials are being observed by officials from various organizations, including
the American Civil Liberties Union, the American Bar Association, Human Rights
Watch, Human Rights First and Amnesty International. Anthony Romero, the
executive director of the civil rights union, told reporters the shortcomings in
the system far canceled out the rights provided.

* * *


August 24, 2004

OUTSIDE PANEL FAULTS LEADERS OF PENTAGON FOR PRISONER ABUSE
By John H. Cushman Jr.

http://www.nytimes.com/2004/08/24/politics/24CND-ABUS.html

WASHINGTON, AUG. 24 -- The prisoner abuses photographed at the Abu Ghraib
facility in Iraq were unauthorized, but other abuses were widespread and
indirect responsibility goes up the chain of command to the highest offices in
the Pentagon, an independent panel reported today.

Problems at the prison "were well known," the panel's chairman, James R.
Schlesinger, said, and corrective actions "could have been taken and should have
been taken." He said that military commanders in the field and staff officers in
Washington bore more responsibility than the Pentagon's civilian leadership for
not preventing the abuses, which were widely reported, prompting outrage at home
and abroad.

In Iraq, top commanders and staff officers did not adequately supervise
commanders at the prison, the report found, and up the chain of command to
Washington other officers did not recognize that guards at the prison were
overwhelmed by their task as an insurgency took hold and the prison population
swelled.

"The abuses were not just the failure of some individuals to follow known
standards, and they are more than the failure of a few leaders to enforce proper
discipline," the panel said in its report. "There is both institutional and
personal responsibility at higher levels."

But the report did not single out Defense Secretary Donald H. Rumsfeld for
blame. Mr. Schlesinger, himself a former defense secretary, said, when asked if
Mr. Rumsfeld or other high-ranking officials should resign, that "his
resignation would be a boon for all of America's enemies."

Among those who share responsibility, members of the panel said, were the
commanding general in Iraq, Lt. Gen. Ricardo S. Sanchez, and military and
civilian leaders in the Pentagon, including the offices of the Joint Chiefs of
Staff and the secretary of defense.

The panel said that so far there were about 300 incidents of reported abuse of
prisoners, and that of 155 completed investigations, 66 had found abuses of
prisoners under United States control. Of those, 8 occurred at Guantanamo, 3 in
Afghanistan and 55 in Iraq, the report found. About one-third were related to
the interrogations of prisoners.

The report found that interrogation techniques approved for limited use at
Guantanamo had "migrated to Afghanistan and Iraq, where they were neither
limited nor safeguarded." The report was prepared by a four-member panel that
was led by Mr. Schlesinger, who was defense secretary under Presidents Nixon and
Ford, and that included Harold Brown, President Carter's defense secretary;
Tillie K. Fowler, a former Republican congresswoman from Florida and the
chairwoman of an investigation last year into sexual misconduct at the United
States Air Force Academy; and Gen. Charles A. Horner, a retired four-star Air
Force officer, who led the air campaign in the Gulf War in 1991. All of the
panel members sit on the Defense Policy Board, an advisory panel to Mr.
Rumsfeld.

The panel interviewed about two dozen people, focusing its attention on senior
policy makers and commanders. Among those interviewed were Mr. Rumsfeld (twice),
Deputy Defense Secretary Paul D. Wolfowitz; Gen. Richard B. Myers, the chairman
of the Joint Chiefs of Staff, and Gen. John P. Abizaid, the top American
commander in the Middle East.

When he named the panel in May, Mr. Rumsfeld asked its members for "your
independent, professional advice."

* * *


August 14, 2004

AMERICAN CAUGHT WITH TALIBAN SEEKS REVIEW OF 20-YEAR TERM

By Philip Shenon

http://www.nytimes.com/2004/08/14/politics/14detain.html

WASHINGTON, Aug. 13 - Lawyers for John Walker Lindh, the young American captured
in Afghanistan after joining the Taliban and now serving a 20-year prison
sentence, called on the Justice Department on Friday to review his case in light
of the department's announcement this week that it might soon free another
American captured with the Taliban.

"We hope that the government gives Mr. Lindh the same reconsideration they have
extended to Mr. Hamdi," the lawyers said in a statement, referring to Yaser Esam
Hamdi, an American-born Saudi who is expected to be released soon to return to
his family in Saudi Arabia.

Justice Department officials had no immediate comment on the statement.

Mr. Lindh, a convert to Islam who is now 23, was sentenced to 20 years in prison
as a result of a plea agreement reached in July 2002.

Within weeks of his capture, in December 2001, the United States took another
American, Mr. Hamdi, into custody in Afghanistan.

But while it was clear immediately to his captors that Mr. Lindh was an
American, military officials have said it took several months for them to learn
and verify that Mr. Hamdi was American, and he was initially treated as a
foreign enemy combatant and moved to the American military base at Guantanamo
Bay, Cuba, for interrogation.

This week, the Justice Department disclosed that it was negotiating with defense
lawyers over the release of Mr. Hamdi, who has never been charged with a crime.

A lawyer for Mr. Lindh, James J. Brosnahan, said in an interview that a decision
to release Mr. Hamdi should prompt discussions in the Justice Department over
whether Mr. Lindh deserved similar treatment.

"We're not today saying exactly what we're going to do," Mr. Brosnahan said,
"but this is a situation in which there's an enormous disparity, and basic
fairness would conclude that the department ought to take a look at this."

He said Mr. Lindh had received especially harsh treatment because of the timing
of his capture, which occurred within three months of the Sept. 11 attacks.

"It was sort of a ferocious reaction to him, which in human terms is
understandable but in terms of fairness is not understandable," the lawyer said.

Mr. Brosnahan said Mr. Lindh was being held at a medium-security prison in
California - he would not say exactly where - and was a model prisoner.

"He's studying, he's using his time productively," the lawyer said. "The last
time I saw him, he had read about 100 books in the recent months before that."

* * *


August 7, 2004

GUANTANAMO INMATE COMPLAINS OF THREATS AND LONG ISOLATION

By NEIL A. LEWIS

http://www.nytimes.com/2004/08/07/politics/07gitmo.html

WASHINGTON, Aug. 6 - A brief unsealed in a Seattle courtroom this week contains
an account by a prisoner at Guantanamo Bay, Cuba, alleging that he was
mistreated in several ways that may have violated the Geneva Conventions,
including having his life threatened, being beaten and being kept in prolonged
isolation.

While the United States government has asserted that it has no obligation to
give the Guantanamo prisoners the protections of the Geneva Conventions,
officials have insisted that they have done so as a humanitarian gesture.

In a separate affidavit, the Navy lawyer for the detainee asserted that when he
met the prisoner on several occasions he found him to exhibit symptoms,
including sudden mood changes and suicidal tendencies, that medical experts said
indicated a profound and worsening mental illness they attributed to his
isolation.

The affidavit of the prisoner, Salim Ahmed Hamdan, a 34-year-old Yemeni, said he
did not know how long he had been kept in isolation at Guantanamo, but suggested
it was at least eight months. The prisoner, who has admitted to having been a
driver for Osama bin Laden in Afghanistan, also said he was regularly beaten by
American guards in Afghanistan after his capture there at the end of 2001.

Mr. Hamdan also said that the cell in which he is now being isolated had caused
him to consider pleading guilty "in order to get out of here."

A Pentagon spokesman, Maj. Michael Shavers, said on Friday that officials were
aware of the documents but had no comment on their assertions. Mr. Hamdan was
charged last month with conspiracy to attack and to commit terrorism.

The documents, including the affidavits of Mr. Hamdan and his lawyer, Lt. Cmdr.
Charles Swift, are part of the first lawsuit directly challenging the Bush
administration's authority to try prisoners held as unlawful combatants before
military tribunals.

Mr. Hamdan is one of a handful of prisoners who have been charged and face a
preliminary hearing at Guantanamo before a tribunal on Aug. 23.

Commander Swift has argued that Mr. Hamdan was an agricultural worker for Mr.
bin Laden and was not part of Al Qaeda.

The Supreme Court ruled in June that the naval base on the tip of Cuba was not,
as the government had contended, beyond the reach of United States
constitutional law.

The court said prisoners being held there could challenge their detentions in
federal courts.

As a result, dozens of detainees have filed habeas corpus lawsuits in federal
court in Washington, D.C., seeking to force the government to justify the
detentions before a judge.

* * *


July 17, 2004

MOVING QUICKLY, U.S. IS READYING REVIEW PANELS FOR CUBA BASE

By Neil A. Lewis

http://www.nytimes.com/2004/07/17/politics/17gitmo.html

WASHINGTON, July 16 -Moving at what officials acknowledge is extraordinary
speed, the Pentagon may begin special military hearings by the end of next week
allowing prisoners held as unlawful combatants at Guantanamo Bay, Cuba, to try
to convince a board of officers that they are being wrongly detained.

At the same time, law firms enlisted by civil liberties groups have been rushing
to establish a different route of challenging the detentions, by filing court
petitions. By next week, petitions may have been filed in federal court here on
behalf of as many as a third of the detainees.

In effect, the two sides are engaged in a kind of undeclared legal battle to
decide how the fate of the 594 detainees remaining in Cuba will be determined in
light of a Supreme Court ruling issued last month. And both the Pentagon and the
defense lawyers evidently believe that they need to move speedily to gain an
advantage.

In their decision, the justices held that the federal judiciary's reach extended
to Guantanamo Bay and that prisoners there must be allowed an opportunity to
challenge their detention before a judge or other "neutral decision-maker."

The Defense Department responded last week with plans for hearings at Guantanamo
before newly created Combatant Status Review Tribunals, which would qualify as
neutral, the department said, since the officers serving on them would have no
stake in the fate of a particular detainee.

The civil liberties groups maintain that this solution has less to do with the
Defense Department's intention to comply with the justices than with a
determination to maintain control of the challenge process. The Pentagon
evidently hopes that these hearings will be enough to persuade the courts not to
intervene, say the critics, who as a result have added incentive to file their
petitions as quickly as possible.

Gordon R. England, the secretary of the Navy, who put together the Pentagon's
plan, said at a press briefing Friday that the first hearing might take place
late next week. He said officials hoped to get quickly to a point of moving 72
detainees a week through the process.

"We're confident that we will finish this, on the outside, in three to four
months," Mr. England said, though he acknowledged that the procedures to be
followed at the hearings were not yet complete.

One military lawyer noted that the Pentagon usually moved in a more deliberate
fashion; its plans for military commissions to try some detainees for war crimes
were developed more than two years ago, for instance, and there has yet to be a
commission proceeding. Of the new review process, the lawyer said, "This is like
moving at the speed of light for the military."

Under procedures for the review, each detainee choosing to participate will meet
with a military officer who will act as his representative, but not as his
lawyer or other kind of advocate. The detainee will be given a document with an
unclassified version of the accusations that were the basis on which he was
deemed an unlawful combatant.

With the help of his representative, the prisoner will then argue his case
before one of three tribunals, each composed of three officers. Secretary
England said the proceedings would be open to a small press contingent, although
probably not in time for the earliest hearings.

Several of the lawyers who have challenged the detentions were highly skeptical
of the military's purpose in moving quickly on the hearings.

Michael Ratner of the Center for Constitutional Rights, a New York group that
helped bring the challenge leading to the Supreme Court's decision, said it
appeared that the Pentagon was engaged in a last-ditch effort to retain control
of the detainees by arguing that the military had provided a fair process and so
persuading the courts not to take jurisdiction.

"Our theory here," Mr. Ratner said, "is that we believe the Supreme Court
decision gives the inmates the right to file habeas corpus petitions in federal
courts."

Joseph Margulies of the University of Chicago Law School, who argued the case
for Mr. Ratner's organization before the Supreme Court, said the justices'
decision required that detainees have an opportunity to contest their
imprisonment under standards that are reviewable by federal courts for fairness.

"There is no way that these tribunals could meet that standard," Mr. Margulies
said, citing several features of the plan, among them that the detainees will be
represented not by advocates but by military officers with whom they will have
no lawyer-client relationship. In the absence of a confidential relationship,
any information a military representative obtained from a detainee could be
shared with the tribunal.

Secretary England said the proceedings were not supposed to be like trials.

"This is a fact-based determination," he said. "This isn't guilt or innocence.
This is a look at facts. Here's a person: are they, are they not, an enemy
combatant?"

But Mr. Margulies said he believed that the hearings were part of an effort by
the Bush administration to "keep Guantanamo an enclave outside the law."

"The entire process," he said, "is a sham."

Defense lawyers said they believed that in order to press their cases before the
courts, they needed to be allowed to meet with their clients. Some have been
promised that they will be able to meet them, but none have yet been given
permission to do so. Thomas Wilner, a Washington lawyer who represents 13
detainees from Kuwait, said of the process, "I hope they are not delaying this
on purpose."

Bryan Whitman, a Pentagon spokesman, said in an interview that there was no
intention to delay lawyers' visits to Guantanamo.

"It's obviously not a place you can just fly to," Mr. Whitman said. "We are
working on the issues of clearances and logistics."

Pentagon officials and the defense lawyers appear to agree that the hearings may
well bring a significant reduction in Guantanamo's population. Asked what would
happen when a tribunal deemed detainees not to be unlawful combatants, Mr.
England replied, "They go home."

Mr. England said that in the last few days, officials had notified all the
Guantanamo detainees of their right to a hearing. About 95 percent asked to
participate and to see a representative, he said. The remaining 5 percent, he
said, angrily rejected the process, some crumpling up and throwing away the
information sheet telling them of it.

The information sheet, which officials said had been translated for each of the
detainees, also notified them of a right to challenge their detentions in
federal courts as well. Mr. England said he did not know how many of the
detainees inquired about that right when shown the notices.

In another announcement related to detainees of the American military, the
Pentagon said it was setting up an office to keep senior officials better
informed of reports from the International Committee of the Red Cross. At
Congressional hearings into abuses at Abu Ghraib prison near Baghdad, senior
officers acknowledged that they had not responded properly to a Red Cross report
about conditions there.

Ryan Henry, the principal deputy under secretary of defense for policy, told
reporters that the new Office of Detainee Affairs was being created as a
"correction vector."

* * *


July 16, 2004

CONGRESS'S INQUIRY INTO ABUSE OF IRAQI PRISONERS BOGS DOWN

By Eric Schmitt

http://www.nytimes.com/2004/07/16/politics/16abus.html

WASHINGTON, July 15 - The Congressional investigation into the abuse of Iraqi
detainees at Abu Ghraib prison has virtually ground to halt, as a senior Senate
Republican said Thursday that no new hearings would be held on the matter until
this fall at the earliest.

The Republican-controlled House Armed Services Committee made it clear weeks ago
that it believed that the several current military investigations of the scandal
were sufficient, and that summoning commanders to Washington would only hinder
American operations in Iraq.

That left the issue to the Senate Armed Services Committee, whose chairman,
Senator John W. Warner, a Virginia Republican, has held a series of hearings,
but none since May 19. On Thursday, Mr. Warner said he would hold off calling
any more witnesses until several criminal prosecutions and seven pending
Pentagon inquiries were completed.

But some of those inquiries are running weeks behind. The pivotal investigation
of the role that American military intelligence officials played in the abuses,
which officials once expected to wrap up in June, now is not likely to be
completed and reviewed by senior Pentagon officials until mid-August. Congress
will soon recess until September.

"We're not in a position to try to have an independent investigation at this
point," Mr. Warner told reporters after senators received a classified briefing
on Thursday on Red Cross reports about detention operations at American-run
prisons in Iraq. "There are so many ongoing investigations going on, we cannot
in any way jeopardize the right of individuals being investigated."

Other factors also are behind the delay: the calendar, the preferences of some
of Mr. Warner's Republican colleagues and the pace of the military
investigations, many of which are behind schedule. All seem to be conspiring to
thwart his desire to hold hearings on the matter.

Many Democrats and some Republicans, like Susan Collins of Maine and John McCain
of Arizona, have pressed to push ahead to get to the bottom of the abuses.
Senator Collins supported further hearings, saying, "I think there are some
serious unanswered questions."

Senator Jack Reed, a Rhode Island Democrat, said the Pentagon approach seemed to
have "slowed things down rather than speed things up." He said the Senate found
itself in the awkward position of having to wait for reports that it needed as
the basis for hearings.

But House Republicans and, privately, some Senate Republicans say Mr. Warner, by
holding more hearings, would only hand Democrats an explosive campaign issue.

For its part, the Pentagon has played to Mr. Warner's military sensibilities -
he is a former secretary of the Navy - and urged him not to take any steps that
could upset the overlapping military reviews or the military justice system.

When pressed Thursday to give a schedule of when hearings might resume, Mr.
Warner expressed frustration and replied testily: "I can't give you a schedule.
Take a look at all those investigations. What can you do until they are
finished?"

Senator Lindsey Graham, a South Carolina Republican, said he agreed with Mr.
Warner on putting off more hearings, but said investigators must search for
culpability among higher-ranking officers and officials. "The idea that only
five or six privates and sergeants are legally exposed is unacceptable," Mr.
Graham said in a telephone interview.

Mr. Warner said he was trying to schedule a broader hearing on Iraq for next
week with L. Paul Bremer III, who stepped down last month as the senior civilian
administrator in Iraq. But committee officials conceded that Mr. Bremer was
unlikely to give up vacation time to be pummeled by senators' questioning.

Among the other witnesses Mr. Warner said he might like to call after the
Senate's August recess is William J. Haynes, the general counsel of the Defense
Department.

Senator Reed said there might be an incentive outside of Capitol Hill to have
some of the military reports come out when Congress is gone, diminishing their
impact.

Interest in the issue among senators may be waning. About 10 senators from both
parties attended the briefing held on Thursday to update lawmakers on the status
of the seven pending inquiries and on the Red Cross reports.

Mr. Warner said 24 of 25 reports compiled by the International Committee of the
Red Cross on detention centers in Iraq had been made available to lawmakers by
Pentagon officials. The reports, which are usually kept secret to protect the
rights of prisoners and to ensure that human rights experts have continued
access to prisons, were provided to the Senate committee on Thursday and to its
House counterpart on Wednesday.

But aides familiar with the reports said they did not add any significant new
information beyond what was contained in a highly critical report completed in
February. That report said that as far back as May 2003, the Red Cross had
complained to military officials about abuses.

At the briefing on Thursday, the Pentagon also provided senators with updated
figures on investigations of the death or abuse of Iraqi prisoners. The military
has opened 41 death investigations; 15 are still pending. Of the 135 inquiries
into other abuses, 54 are still pending.

[ Carl Hulse contributed reporting for this article. ]

* * *


July 8, 2004

PENTAGON WILL PERMIT CAPTIVES AT CUBA BASE TO APPEAL STATUS

By Christopher Marquis

http://www.nytimes.com/2004/07/08/politics/08deta.html

WASHINGTON, July 7 - The Defense Department announced a series of steps on
Wednesday that would let detainees at Guantanamo Bay, Cuba, challenge their
status as enemy combatants from the war in Afghanistan and the campaign against
terrorism.

The new procedure was hastily devised to head off a possible flood of litigation
after a Supreme Court ruling last week requiring that the prisoners be allowed
to challenge their legal status before a neutral party, like a federal court.
But it was not immediately clear whether the new procedures, which will keep the
process in military courts, would satisfy the court's desires in the Rasul
decision, and officials who described the new approach conceded that some of the
details were likely to end up in litigation.

Under the new review process, the nearly 600 Guantanamo detainees would be
provided with personal representatives, but not lawyers, to help them consider
their legal options. Detainees would be permitted to challenge their legal
standing before a newly created Combatant Status Review Tribunal, a panel of
three military officers.

The Pentagon said the officers would be neutral, because they had no stake in
the fate of any particular detainee - but officials did not address the
possibility that institutional loyalty might influence the tribunal. Legal
advocates said the measure would do nothing to bring the continued detention of
foreign nationals at Guantanamo Bay into compliance with the Constitution or
international law. "The Supreme Court upheld the rule of law over unchecked
executive authority," said Rachel Meeropol, a lawyer with the Center for
Constitutional Rights. "The review procedures for the detainees set up by the
Department of Defense are inadequate and illegal, and they fail to satisfy the
court's ruling."

Most problematic, the legal experts said, is that the process does not permit
the detainees access to legal counsel. "Without access to a lawyer the Supreme
Court's decision in Rasul would be meaningless," said Jeffrey E. Fogel, the
legal director of the center, in a letter last week to the defense secretary,
Donald H. Rumsfeld. "The right to habeas corpus has always included the right to
legal assistance."

The move appeared to be a last-ditch effort by the administration to retain
control over the handling of the detainees, many of whom have been kept in
indefinite detention.

The Supreme Court threatened to undercut the administration's detentions last
week, declaring that "a state of war is not a blank check for the president." In
separate rulings, the court said the detainees were entitled to rebut the
government's charges before "a neutral decision-maker," and that federal judges
had jurisdiction to hear petitions for habeas corpus from those who say they
have been jailed unlawfully.

Within days of those rulings, lawyers for 13 detainees at Guantanamo said they
would travel to the American Navy base there to pursue legal challenges in
federal court. In response, the administration announced the new process on
Wednesday, which officials said would be under way within days.

A senior defense official portrayed the tribunals as an entirely new process
that would grant the detainees most of the legal rights enjoyed by American
citizens, including the right to know the case being made against them. The
detainees would not, however, receive Fifth Amendment protections, he said.

The tribunal will consist of three military officers. Detainees will be allowed
to attend its proceedings, except for the deliberation. They will also be
provided interpreters and will have the opportunity to testify.

The personal representatives will be military officers who, while not lawyers,
will have access to the Pentagon files on the detainees' backgrounds. The
representative will be able to share unclassified information with a detainee
and will be given 30 days to file a challenge on his behalf. It was unclear
whether the representative's consultations with a detainee would remain
confidential. Also unknown was whether there would be public access to the
proceedings. Details are still being worked out by the Navy secretary, Gordon R.
England, officials said.

In a separate development on Wednesday, the Defense Department slated nine more
detainees for trial before an American military commission, the first such
proceedings since World War II, the Pentagon said. Those trials did not appear
to be affected by the new tribunals, since they grant detainees full legal
representation. The announcement brings to 15 the number of terrorism suspects
who are scheduled to be tried in the military court. President Bush approved the
cases, the Pentagon said.

"The president determined that there is reason to believe that each of these
enemy combatants was a member of Al Qaeda or was otherwise involved in terrorism
directed against the United States," the Pentagon said in a statement.

Defense officials refused to provide the names of the accused, their alleged
crimes or their nationalities, noting that formal charges against the detainees
had not yet been made. The suspects - some or all of whom have been held at
Guantanamo Bay in Cuba - are expected to be charged with war crimes, like aiding
the enemy or spying.

The procedure has been harshly denounced by defense lawyers, including those
assigned by the military to defend the detainees, as an inherently unfair
process that does not allow for review outside the military.

A military commission has been set up to hear the first three cases involving
the detainees, whom the government has designated as enemy combatants. Peter E.
Brownback III, a retired Army colonel, was named the presiding officer last
week; the remaining panel consists of two Marine Corps colonels, an Air Force
colonel and an Air Force lieutenant colonel. Administration officials insist
that the suspects face a presumption of innocence, and guilt must be established
beyond a reasonable doubt. The detainees are offered military defense lawyers at
no charge, but may also hire civilian lawyers at their own expense. Two-thirds
of the tribunal must approve a conviction; a death sentence requires a unanimous
vote of the panel.

* * *


July 3, 2004

SUPREME COURT ROUNDUP
THE YEAR REHNQUIST MAY HAVE LOST HIS COURT

By Linda Greenhouse

http://www.nytimes.com/2004/07/03/politics/04SCOTUS.ready.html

WASHINGTON, July 4 -- Although it has been 10 years since its membership last
changed, the Supreme Court that concluded its term last week was, surprisingly
and in important ways, a new court.

It is too soon to say for sure, but it is possible that the 2003-04 term may go
down in history as the one when Chief Justice William H. Rehnquist lost his
court.

The cases decided in the term's closing days on the rights of the detainees
labeled "enemy combatants" by the Bush administration provided striking evidence
for this appraisal. The court ruled that foreigners imprisoned at Guantanamo
Bay, Cuba, as well as American citizens held in the United States are entitled
to contest their classification before an impartial judge.

The surprise lay not in the outcome: it was scarcely a great shock, except
perhaps to the administration, that a court preoccupied in recent years with
preserving judicial authority would reject the bold claim of unreviewable
executive power at the core of the administration's legal arguments. Rather,
what was most unexpected about the outcome of the cases was the invisibility of
Chief Justice Rehnquist.

It is a remarkable development. Since his promotion to chief justice 18 years
ago, his tenure has been notable for the sure hand with which he has led the
court, marshaling fractious colleagues not only to advance his own agenda but
also to protect the court's institutional prerogatives.

Four years ago, for example, the court reviewed a law by which Congress had
purported to overrule the Miranda decision, a precedent Chief Justice Rehnquist
disliked and had criticized for years. But in the face of Congress's defiance,
he wrote a cryptic opinion for a 7-to-2 majority that said no more than
necessary about Miranda itself but found common ground in making clear that it
was the court, not Congress, that has the last word on what the Constitution
means.

This year, there was every reason to suppose the chief justice would want to
shape the court's response to the war on terrorism. His 1998 book on the history
of civil liberties in wartime reflected his extensive knowledge and evident
fascination with the subject by which the term, if not his entire tenure, was
likely to be known. If there was a message to be delivered from one branch of
government to another, Chief Justice Rehnquist figured to be the one to deliver
it.

Yet the Guantanamo case found him silently joining Justice Antonin Scalia's
dissenting opinion as Justice John Paul Stevens explained for the 6-to-3
majority why the federal courts have jurisdiction to review the status of the
hundreds of foreigners detained there.

In the case of Yaser Esam Hamdi, the American-born Saudi taken from the
battlefield in Afghanistan and held since 2002 in a military prison, Chief
Justice Rehnquist was among the eight justices who found the open-ended
detention improper for either constitutional or statutory reasons. But his was
not among the several voices with which the court spoke. He was a silent member
- perhaps even a late-arriving one - of Justice Sandra Day O'Connor's plurality
opinion.

The implication is not that Chief Justice Rehnquist, who turns 80 on Oct. 1, has
lost a step. Nor does he show any interest in leaving the court, which he joined
in 1972 at the age of 47. A few days ago, in fact, he hired law clerks for the
term beginning in October 2005, and some people believe he is aiming to top the
record of 36 years set by Justice William O. Douglas, or at least to equal the
34-year tenure of his judicial hero, Chief Justice John Marshall.

Rather, it appears that while he has stood still, the court's center of gravity
has moved away from him. One statistic is particularly telling. There were 18
cases this term decided by five-member majorities (17 were 5-to-4 decisions and
one, the Pledge of Allegiance case, was 5 to 3 but would surely have been 5 to 4
had Justice Scalia participated; he would certainly have agreed with Chief
Justice Rehnquist, in the minority, that the court should rule that "under God"
posed no constitutional problem). Of the 18 cases, Chief Justice Rehnquist was
in the majority in only eight.

That contrasts sharply with the chief justice's notably successful term two
years ago, when he was in the majority in 15 of 21 5-to-4 decisions. A year ago,
he was in the majority half the time, in 7 of 14 cases with 5-to-4 votes, and
was on the losing side in the most important of those cases, the decision that
upheld affirmative action at the University of Michigan. He was also on the
losing side in the Texas gay rights case, in which the court voted 6 to 3 to
overturn the state's criminal sodomy law.

Those were the first stirrings of what accelerated during the term that began
Oct. 6. The chief justice was in dissent in most major cases, from the expedited
ruling in December that upheld major provisions of the new campaign finance law,
until the two decisions last Tuesday, the term's final day, blocking enforcement
of an Internet pornography law and taking a generous view of federal court
jurisdiction under the Alien Tort Statute to hear foreign human rights cases.
Also last week, he dissented from the court's refusal to authorize a police
interrogation tactic designed to induce suspects to confess despite receiving
their Miranda warnings.

Further, the Rehnquist court's federalism revolution, with its expansive
approach to state sovereignty and correspondingly limited view of Congressional
power, appeared this term to stall in its tracks. The chief justice was on the
losing side in the term's major federalism case, the 5-to-4 decision in
Tennessee v. Lane rejecting state immunity from suit under a provision of the
Americans With Disabilities Act.

A number of other cases had federalism overtones that a majority of the court
either rejected or ignored. In the case that struck down the sentencing
guidelines in the state of Washington, Justice Anthony M. Kennedy objected in
dissent that the court was failing to give the states proper respect for their
legislative choices on criminal justice. Chief Justice Rehnquist also dissented
in that case, which although just over a week old has already left criminal
sentencing in turmoil around the country.

Opponents of the McCain-Feingold campaign finance law objected on state's rights
grounds to limits on the fund-raising abilities of political parties at the
state level. In upholding the law, over Chief Justice Rehnquist's dissent, the
court barely acknowledged the federalism argument.

The chief justice tried and failed to use a Pennsylvania redistricting case this
term to overturn a 1986 precedent, to which he had strongly objected at the
time, that gave courts authority to review claims of partisan gerrymandering.
While there were five votes to reject the particular gerrymander complaint, one
of the five, Justice Kennedy, refused to go along completely, instead writing a
concurring opinion that kept the prospect of a successful gerrymander suit alive
for future cases.

The court decided 73 cases with full opinions during the term. Of the major
cases, Chief Justice Rehnquist wrote the majority opinion in two. One was the
third of the terrorism detainee cases, that of Jose Padilla, an American
arrested at O'Hare International Airport on suspicion of being part of a
terrorist plot, who has been held in a military prison for the last two years
without access to court. The decision postponed resolution of the case by
holding that Mr. Padilla's lawyer should have filed his habeas corpus petition
in South Carolina rather than in New York.

The second of the chief justice's major opinions came in an important church-
state case, Locke v. Davey. The question was whether a state that underwrites
college scholarships for secular study must also subsidize students who want to
study for the ministry. The argument for the religious subsidies built on Chief
Justice Rehnquist's opinion for the court two years ago in a school voucher case
from Ohio, holding that it did not violate the Constitution for states to give
parents vouchers for religious school tuition as part of a general "school
choice" plan.

As a practical matter, the future of the school-choice movement depended on the
answer to the question Locke v. Davey brought to the court: if vouchers were
permissible, were they also constitutionally required? Writing for a 7-to-2
majority, the chief justice's answer was no. "The state has merely chosen not to
fund a distinct category of instruction," one that was "not fungible" with
ordinary secular studies, he said over biting dissents from Justices Scalia and
Clarence Thomas.

Largely overlooked in the drama of the term's higher-profile cases, Locke v.
Davey was an important decision, indicative of the struggle now going on within
the court over how far to push some of the principles that the conservative
majority has established over the last 10 years or so.

In this instance, although the consequences of turning permissible vouchers into
required vouchers would have been profoundly unsettling, the court's recent
insistence on an equal place for religion at the public table provided at least
a plausible basis for that outcome. Instead, the majority looked at the
consequences of carrying the recent precedents to their logical conclusion, and
stopped short.

In fact, as Locke v. Davey demonstrates, the most consequential debate on the
court today may be not so much over first principles, but over how far to carry
those principles. That the chief justice was so often on the losing side this
term may not mean that those who once agreed with him have changed their minds,
but that they disagree over what to do next.

In Locke v. Davey, the stopping point appeared clear to a broad majority of the
court. In the Tennessee federalism case, by contrast, while the chief justice
wanted to continue pressing the boundaries of state sovereignty to immunize the
state from a lawsuit by a man who could not reach a second-floor county
courtroom in his wheelchair, Justice O'Connor decided that Tennessee v. Lane was
not the case in which to push sovereign immunity to its logical conclusion.

The outcome was reminiscent of the court's decision a year ago in the Michigan
affirmative action case. Justice O'Connor, long skeptical of all official
policies that take account of race, joined Justices Stevens, Ruth Bader
Ginsburg, David H. Souter and Stephen G. Breyer to uphold the law school's
admissions plan, essentially on the ground that diversity was good for the
country.

Pragmatism rather than doctrine seems to be the order of the day at the court
now. Justice O'Connor, perhaps the court's leading pragmatist, cast only five
dissenting votes in the entire term, far fewer than anyone else, and was in the
majority in 13 of the 18 most closely decided cases, more often than any other
justice. She formed strategic alliances with other justices, for example writing
an unusual joint opinion with Justice Stevens that upheld the central portions
of the campaign finance law.

Justice Stevens displayed his own strategic skills, finely honed during a 29-
year tenure that has made him the senior associate justice, in a position to
assign the majority opinion in all cases where the chief justice is in dissent.
He tailored his majority opinion in Tennessee v. Lane to Justice O'Connor's
comfort level, for example, and crafted a procedural opinion that removed the
highly sensitive Pledge of Allegiance case from the court's docket with surgical
precision, leaving no precedent behind. At 84, his intellectual energy appears
undimmed, and he told a gathering of his former law clerks a few weeks ago that
he has no retirement plans.

So when the new term begins on Oct. 4, the same justices will reassemble for a
highly unusual 11th year together. The juvenile death penalty and medical
marijuana are among the cases already on a docket that may continue pushing
these nine people, so familiar to each other, in new directions.

Following are summaries of the term's major decisions. (Some of the vote counts
are judgment calls; an opinion labeled by its author as a concurrence may be
counted as a dissent, for example, if it departs from the essential elements of
the majority opinion.)

Detainees

Rejecting the Bush administration's claim of unreviewable presidential authority
in its war on terrorism, the court ruled that both citizens and noncitizens held
in open-ended detention, in the United States and at Guantanamo Bay, Cuba, are
entitled to challenge their designation as "enemy combatants" before a federal
judge or other "neutral decision maker." The decisions left unanswered many
important questions about what procedures will satisfy the court's standards,
and what will happen next.

In the Guantanamo decision, Rasul v. Bush, No. 03-334, the court held by a vote
of 6 to 3 that the United States naval base in Guantanamo Bay is within the
jurisdiction of the federal courts, entitling hundreds of foreign detainees to
file petitions for habeas corpus. Justice Stevens wrote the opinion. Justice
Scalia wrote a dissent, joined by Chief Justice Rehnquist and Justice Thomas.

The court ruled by a divided 8-to-1 majority in Hamdi v. Rumsfeld, No. 03-6696,
that the two-year detention of a United States citizen, Yaser Esam Hamdi, was
invalid, for any of several reasons. Justice O'Connor, along with Chief Justice
Rehnquist and Justices Kennedy and Breyer, said that Mr. Hamdi, picked up on the
battlefield in Afghanistan, had a due process right to a "meaningful
opportunity" to contest the factual basis for his detention. Justices Souter and
Ginsburg found that Congress had never authorized Mr. Hamdi's detention in the
first place. Justices Scalia and Stevens said the government must either try Mr.
Hamdi for a crime, with the normal protections accorded to a criminal defendant,
or release him unless Congress itself suspends the right to habeas corpus. Only
Justice Thomas said the detention "falls squarely within the federal
government's war powers" and therefore holds up against any argument.

A second United States citizen, Jose Padilla, arrested at O'Hare International
Airport in Chicago and now confined in the same naval brig in Charleston, S.C.,
as Mr. Hamdi, must file a new lawsuit in federal district court there as the
result of the court's 5-to-4 ruling in Rumsfeld v. Padilla, No. 03-1027. The
federal courts in New York, where Mr. Padilla was initially held and where his
lawyer filed a habeas corpus petition in June 2002, lacked jurisdiction, the
court held in an opinion by Chief Justice Rehnquist. Justices Stevens, Souter,
Ginsburg and Breyer dissented.

Politics

Two cases had important implications for the political system.

In one, the court upheld the new federal campaign finance law by a vote of 5 to
4, rejecting arguments made by the Republican National Committee and a coalition
of business, labor and lobbying groups that the law's restrictions on
contributions and advertising violated the First Amendment guarantee of free
speech. Experience with the flood of unregulated money into politics amply
justified the new law, the majority said.

The justices worked hard to expedite the decision, McConnell v. Federal Election
Commission, No. 02-1674, managing to hand it down in early December as the 2004
campaign season got under way. By then, the provisions of the Bipartisan
Campaign Reform Act, usually referred to as McCain-Feingold for its Senate
sponsors, had been in effect for 13 months and the system was already adjusting
to the ban on unlimited contributions of so-called soft money to the political
parties.

Justices Stevens and O'Connor co-wrote the main opinion, joined by Justices
Souter, Ginsburg and Breyer. Justice Kennedy wrote the main dissent, criticizing
the majority's definition of corruption as unduly broad. Chief Justice Rehnquist
and Justices Scalia and Thomas also dissented.

The second case raised the question of whether the federal courts should
intervene in a redistricting dispute to correct a partisan gerrymander. The case
was from Pennsylvania, where the Republican-controlled Legislature redrew the
state's Congressional district to squeeze out several Democratic incumbents.

The court was deeply split. Justices Scalia, O'Connor and Thomas and Chief
Justice Rehnquist said in a plurality opinion by Justice Scalia that partisan
gerrymander cases did not belong in federal court because there was no standard
that judges could apply to evaluate them. Justice Kennedy provided a fifth vote
for rejecting the Democrats' constitutional claim in this case, Vieth v.
Jubelirer, No. 02-1580, while indicating that a future case could be so extreme
as to violate the constitutional guarantee of equal protection. Justices
Stevens, Souter, Breyer and Ginsburg said the courts should be open to such
cases, although they did not agree on what standard to apply.

Criminal Law

Continuing the revolution in criminal sentencing that the court began four years
ago, a 5-to-4 decision striking down Washington State's sentencing guideline
system threw federal sentencing into turmoil, indicating the need for a quick
resolution of the validity of the federal guidelines. The court ruled that under
the Sixth Amendment's guarantee of trial by jury, judges cannot be permitted to
make the factual findings that increase a defendant's sentence beyond the usual
range for the crime. Juries must find such facts "beyond a reasonable doubt,"
Justice Scalia wrote for the court in Blakely v. Washington, No. 02-1632.

As in earlier rulings in this line of cases, the unusual majority included
Justices Stevens, Souter, Thomas and Ginsburg. Justices O'Connor, Kennedy and
Breyer dissented, as did Chief Justice Rehnquist.

At the same time, the court refused to give retroactive application to a 2002
ruling that invalidated the death penalty laws of Arizona and four other states
for permitting judges to make the factual determination that placed a convicted
murderer in the category of those eligible for the death penalty. The 5-to-4
decision in Schriro v. Summerlin, No. 03-526, returned as many as 100 inmates to
the five states' death rows. Justice Scalia wrote the majority opinion. Justices
Breyer, Stevens, Souter and Ginsburg dissented.

The court strengthened the constitutional right of criminal defendants to
confront the witnesses against them, unanimously ruling that prosecutors cannot
introduce statements from an absent witness - on tape, for example - unless the
defense has had a chance to cross-examine the witness at an earlier hearing or a
previous trial.

This decision replaced the court's previous, more flexible approach, which often
favored the prosecution. Justice Scalia wrote for the court in Crawford v.
Washington, No. 02-9410, that the Sixth Amendment's confrontation clause gives
defendants the right to face their accusers, with few exceptions.

With Justice Kennedy making the difference, the court reached opposite results
in two cases on the consequences of a failure by the police to read suspects
their Miranda rights. In Missouri v. Seibert, No. 02-1371, the court rejected a
police tactic of withholding the warnings during an initial phase of questioning
in order to induce an initial, inadmissible confession that the suspect can then
be persuaded to repeat after receiving the warnings. The second confession is
not admissible either, the court ruled in an opinion by Justice Souter. Justice
Kennedy voted in the majority, as did Justices Stevens, Ginsburg and Breyer.

The second case, United States v. Patane, No. 02-1183, permitted the police to
introduce physical evidence discovered as the result of statements from a
suspect who did not receive Miranda warnings. Justice Thomas wrote an opinion
for himself, Chief Justice Rehnquist and Justice Scalia that was noticeably
hostile to the Miranda precedent. Justices O'Connor and Kennedy did not go so
far, but they agreed with the outcome in this particular case.

In two Texas death penalty cases, the court issued unusually pointed rebukes of
the United States Court of Appeals for the Fifth Circuit, which sits in New
Orleans and has jurisdiction over federal court appeals originating in Texas.

The justices in both cases found that the appeals court had failed to follow
Supreme Court precedent in refusing writs of habeas corpus to death-row inmates:
Delma Banks, who presented extensive evidence of prosecutorial misconduct, and
Robert J. Tennard, whose lawyers argued that he had been blocked from presenting
his low I.Q. as mitigating evidence.

The decision in Banks v. Dretke, No. 02-8286, was 7 to 2, with a majority
opinion by Justice Ginsburg and dissenting votes from Justices Thomas and
Scalia. The vote in Tennard v. Dretke, No. 02-10038, was 6 to 3, with a majority
opinion by Justice O'Connor and dissenting votes from Justices Thomas and Scalia
and Chief Justice Rehnquist.

Privacy

The court ruled unanimously that release of the death-scene photographs of
Vincent W. Foster, the Clinton administration's deputy White House counsel,
would be an unwarranted invasion of the privacy of his family. Mr. Foster
committed suicide in 1993. Alan J. Favish, a lawyer who disputed the finding of
suicide, sought the photographs under the Freedom of Information Act. His "bare
suspicion" was not enough to justify the intrusion, Justice Kennedy said for the
court in National Archives v. Favish, No. 02-954.

The court divided 5 to 4 on another privacy question, ruling against a Nevada
rancher, Larry D. Hiibel, who argued that he could not constitutionally be
required to identify himself to a law enforcement officer. The court held in
Hiibel v. Sixth Judicial District Court, No. 03-5554, that the police are
entitled to obtain the name of someone they suspect might be involved in a
crime, even in the absence of the probable cause necessary to make an arrest.
Justice Kennedy wrote the majority opinion. Justice Stevens, Souter, Ginsburg
and Breyer dissented.

Discrimination

Addressing sexual harassment in the workplace, the court set guidelines for the
first time for evaluating an employer's liability for working conditions that
become so intolerable as to induce a reasonable employee to resign. Speaking for
an 8-to-1 majority, Justice Ginsburg said an employer could ordinarily defend
itself by showing that it had adequate procedures in place for reporting
harassment and the employee had failed to use those procedures. But if a
supervisor or manager had taken official action against the employee - a
demotion or reduction in pay, for example - as part of the harassment, that
defense would not be available, the court said in Pennsylvania State Police v.
Suders, No. 03-95. Justice Thomas dissented.

Interpreting the federal law against age discrimination in employment, the court
ruled 6 to 3 that the statute is not a two-way street: it protects those whose
employers think they are too old, but not those who are disfavored for being too
young. A group of younger workers had sued General Dynamics over changes in
retirement health benefits that hurt those under 50 while protecting older
workers. The court said the law should be understood in the context of
Congress's intent to protect older workers. Justice Souter wrote for the
majority in General Dynamics Land Systems v. Cline, No. 02-1080. Justices
Scalia, Thomas and Kennedy dissented.

Federalism and Regulation

Ruling narrowly, the court held that states could be sued under the Americans
With Disabilities Act for failing to make their courthouses accessible. The law
requires accessibility for a broad array of public services and programs, but
Justice Stevens's opinion for a 5-to-4 majority confined itself to the plight of
wheelchair users in Tennessee who were barred by architectural barriers from
entering county courthouses. Whether states can claim immunity from suit in
other applications of the disability law remains to be seen in future cases.

Limited as it was, this decision, Tennessee v. Lane, No. 02-1667, was
significant as a break from past decisions rejecting Congressional efforts to
overcome the states' constitutional immunity from suit. The majority said
Congress was justified in this context by a well-documented history of the
exclusion from state judicial proceedings of people with disabilities. Chief
Justice Rehnquist dissented, along with Justices Scalia, Thomas and Kennedy.

In a major health care case, the court ruled unanimously that federal law barred
the states from extending to patients in managed care the right to sue for
damages when a health maintenance organization refuses to cover treatments that
a doctor has deemed medically necessary. Congress alone can decide whether to
enact a "patients' bill of rights," the court said in Aetna Health Inc. v.
Davila, No. 02-1845. Justice Thomas wrote the opinion.

The court affirmed the authority of the federal Environmental Protection Agency
over state regulators in a Clean Air Act case from Alaska. The dispute in Alaska
Department of Environmental Conservation v. Environmental Protection Agency, No.
02-658, was over which agency had the final word in setting conditions for
expansion of a zinc mine. Voting 5 to 4, the court upheld the federal
regulators' authority to set stricter conditions. Justice Ginsburg wrote the
opinion. Justice Kennedy dissented on federalism grounds, joined by Chief
Justice Rehnquist and Justices Scalia and Thomas.

Speech and Religion

In an opinion by Chief Justice Rehnquist, the court ruled that states that
subsidize college tuition for secular studies are not constitutionally obliged
to also subsidize students who are preparing for the ministry. The case rejected
the claim of a ministry student to equal access to a Washington State
scholarship for which he would have been eligible if not for the state's own
constitutional ban on public financing of religious institutions.

The vote in Locke v. Davey, No. 02-1315, was 7 to 2, with Justices Scalia and
Thomas dissenting. Similar constitutional barriers against subsidizing religious
study exist in most states and stand in the way of an expansion of the tuition
voucher programs the court upheld in a case from Ohio two years ago. The
question raised by the new case was whether states must include religious
schools in "school choice" programs as a matter of the free exercise of
religion. More generally, does exclusion of religious institutions from a
general public benefit automatically amount to discrimination? The court's
answer was no.

A dispute over the constitutionality of the words "under God" in the Pledge of
Allegiance ended inconclusively when five justices held that the atheist who
complained about the recitation of the pledge in his daughter's elementary
school classroom lacked standing to bring the lawsuit. Justice Stevens said for
the majority that Michael A. Newdow's lack of legal custody of his daughter,
coupled with the desire of the child's mother to have her continue reciting the
pledge, meant that the lower courts should have refrained from deciding the
case.

Justices Souter, Kennedy, Ginsburg and Breyer joined the majority opinion in Elk
Grove Unified School District v. Newdow, No. 02-1624, which took no view on the
constitutional merits of the lawsuit. Chief Justice Rehnquist, Justice Thomas
and Justice O'Connor wrote separate opinions addressing the merits and finding
the pledge constitutional. Justice Scalia recused himself from the case after
having expressed his view before the appeal reached the court that "under God"
was constitutional.

The court rejected Congress's latest effort to curb children's access to
sexually explicit material on the Internet. But the 5-to-4 decision in Ashcroft
v. American Civil Liberties Union, No. 03-218, left open the prospect that the
Child Online Protection Act of 1998 might yet survive a federal district court
trial if the Bush administration can show that the voluntary use of filters
would not be as effective as the law's stiff criminal penalties in achieving the
goal of protecting children. Justice Kennedy wrote for the majority, joined by
Justices Stevens, Souter, Thomas and Ginsburg.

Jurisdiction

Several cases this term posed novel questions about the jurisdiction of the
federal courts to resolve disputes over events that took place outside the
country's borders.

Interpreting a 215-year-old law, the Alien Tort Statute, the court kept federal
courthouse doors open to lawsuits by foreigners who say they were victims of
serious human rights violations anywhere in the world. The 6-to-3 decision in
Sosa v. Alvarez-Machain, No. 03-339, left many unanswered questions about the
full reach of the statute. Justice Souter wrote for the majority. Justices
Scalia and Thomas and Chief Justice Rehnquist dissented.

The court ruled that the heir of an Austrian Jewish art collector could pursue a
lawsuit in federal court against Austria for the return of six valuable
paintings seized from the family during the Nazi era. The 6-to-3 decision
interpreted a jurisdictional statute, the Foreign Sovereign Immunities Act, to
apply to conduct predating its enactment in 1976. Justice Stevens wrote the
majority opinion in Republic of Austria v. Altmann, No. 03-13. Justice Kennedy
wrote a dissenting opinion that Justice Thomas and Chief Justice Rehnquist
signed.

The court limited the foreign reach of federal antitrust law, ruling that the
Sherman Antitrust Act does not apply to transactions that take place in foreign
countries unless the defendant's actions in the United States can be shown to
have contributed to the anticompetitive effects felt overseas. The 8-to-0
decision came in a private suit for damages in an international conspiracy to
fix vitamin prices. Justice Breyer wrote the opinion in F. Hoffmann-LaRoche Ltd.
v. Empagran S.A., N0. 03-724. Justice O'Connor did not participate.

A case involving Vice President Dick Cheney had intensely political overtones
but turned, as a legal matter, on arcane issues of federal court jurisdiction.
The underlying question was whether groups suing the vice president to get
information about contacts between his energy policy task force and energy
company executives could undertake pretrial discovery in their effort to
establish that a federal open-meetings law applied to the task force.

For the Supreme Court, however, the only question was whether a federal appeals
court properly interpreted a jurisdictional statute when it refused to block the
pretrial discovery. Voting 7 to 2, the justices found that the appeals court had
acted "prematurely" when it refused the vice president's request to block
discovery. The decision, Cheney v. United States District Court, No. 03-475,
gives the vice president a second chance at shielding the information. Justice
Kennedy wrote for the majority. Justices Ginsburg and Souter dissented.

* * *


July 4, 2004

OFFICIALS DETAIL A DETAINEE DEAL BY 3 COUNTRIES

By Don Van Natta Jr. and Tim Golden

http://www.nytimes.com/2004/07/04/international/middleeast/04SWAP.html

LONDON, July 3 -- American officials agreed to return five terrorism suspects to
Saudi Arabia from Guantanamo Bay, Cuba, last year as part of a secret three-way
deal intended to satisfy important allies in the invasion, according to senior
American and British officials.

Under the arrangement, Saudi officials later released five Britons and two
others who had been convicted of terrorist attacks in Saudi Arabia, the
officials said. British diplomats said they believed that the men had been
tortured by Saudi security police officers into confessing falsely.

Officials involved in the deliberations said the transfer of the Saudi detainees
from Guantanamo initially met with objections from some officials at the
Pentagon, the Central Intelligence Agency and the Justice Department. Those
officials questioned whether some detainees were too dangerous to send back and
whether the United States could trust Saudi promises to keep the men imprisoned.

"To get people to take a chance on detainees who posed a threat was a new
endeavor, so everyone moved cautiously," said one senior American official who
supported the releases. "It was the first time we were doing this, and people
did not want to do it."

The Saudi prisoners were transferred to Riyadh, the capital, in May 2003. The
five Britons and two others were freed three months later, in August.

The releases were public-relations coups for the Saudi and British governments,
which had been facing domestic criticism for their roles in the Iraq war.

At the time there was no indication the releases were related. But an American
official with knowledge of the negotiations said, "There is a link," adding,
"This was two courses that converged and had a mutual attractiveness to them."

On Friday, a spokesman for the National Security Council denied that the Saudi
detainees were transferred in exchange for the British prisoners. "There is no
recollection here of any linkage between these two actions," the spokesman, Sean
McCormick, said. He described the return of the Saudis as "part of the normal
policy of transferring detainees from Guantanamo for prosecution or continued
detention."

But American officials involved in the Saudi case described it as highly unusual
and said the backgrounds of those detainees raised greater concerns than those
of other transfers. Some officials also said the case showed how considerations
other than security and intelligence could influence releases of detainees.

Current and former American, British and Saudi officials would speak about the
trade only on the condition of anonymity.

Several American military and diplomatic officials said they were unsure how
many of the Saudis remained in custody there.

Saudi officials gave contradictory accounts of the men's whereabouts, saying at
first that one or two of the five had been released, then denying that any had
been freed. The officials also gave contradictory accounts of the suspects'
legal status, first saying they had been tried and convicted of seeking to join
Taliban forces in Afghanistan, but later saying prosecutions were still pending.

Neither American nor Saudi officials would identify the five, or describe in
detail the evidence on which they had been held at Guantanamo. One American
official, however, said two of the former detainees had attended Al Qaeda
training camps in Afghanistan.

A Debate: Whose Interest?

Several officials involved in the negotiations defended the bargain as being in
the interest of all three countries.

"We acted in our national interest to reduce the Guantanamo population at a time
when we were able to conclude that we had no further need to detain these
individuals," said the American with knowledge of the negotiations. "It happened
to serve a beneficial diplomatic purpose both with the Saudis and the Brits. But
we would never have released these people if we had a further need to detain
them in the first place."

But several current and former Defense Department officials challenged that
assertion, saying no Saudis had even been under consideration for release prior
to the arrangement's being struck.

"It didn't seem right," said one military official who was involved in the
process. "The green light had not appeared on these guys in the way that it had
on others" who were released. "It was clear that there was a quid pro quo to the
deal that we were not aware of."

A spokesman for Prime Minister Tony Blair of Britain declined to comment. An
official in the British Foreign Office said: "We were extremely relieved to get
the guys out of Saudi. We worked ceaselessly to get them out."

The exchange occurred at a time of widespread mistrust among intelligence and
law enforcement officials in Washington about the Saudi government's commitment
to fight Islamic terrorism. One Defense Department official said a basic
question hanging over the discussions was, "Why are we doing this for these guys
when we haven't done this for other, better allies?" The official added, "We
were just told to do it."

The Saudi government was eager to bring home even a few detainees from
Guantanamo. Although Saudi leaders opposed a war with Iraq, they allowed the
United States to use several military bases to launch air attacks into Iraq and
as a staging ground for American troops.

"This was something that the Saudis desperately wanted, as a way to show their
people that they could get something from the Americans, and that it was not
just a one-way street," an American official said.

But at the time, such a transfer was unprecedented. Prior to the Saudi case, the
Defense Department had freed 35 Afghan detainees, including several elderly men,
after concluding they posed no further threat. None had been transferred to a
foreign government for continued detention or prosecution.

Since the transfer of the Saudis, the Bush administration has sent other
Guantanamo detainees to their home countries, including a Spaniard, a Dane and
four Britons. As in the Saudi case, the administration's decision to transfer
the men was based partly on the fact that the governments involved had supported
the Iraq war, according to the American official involved in talks.

Detainees: The Saudi View

The diplomatic initiative that led to the transfers began in July 2002, when a
delegation of Saudi officials visited the American naval base at Guantanamo Bay,
on the eastern tip of Cuba. The Saudi officials briefly interviewed each of the
roughly 130 Saudi detainees, officials said.

Senior Saudi officials, including Foreign Minister Saud al-Faisal, had been
arguing with American diplomats for several months that many of the men at
Guantanamo were innocent and had simply been in the wrong place at the wrong
time.

In an interview, a Saudi official described many of the men as "low-level foot
soldiers or even groupies, who were working for charities and who posed no
threat." But American officials characterized the Saudis as more dangerous,
saying that some had clear Al Qaeda connections and that nearly all of them had
been uncooperative with interrogators.

As the Saudis were urging the Americans to release the detainees, Mr. Blair was
having his own prisoner problems. In the summer of 2002, the British press was
criticizing him over the fate of the five British men who, with a Canadian and a
Belgian, were accused of carrying out several attacks against Western targets in
Riyadh. One attack, in November 2000, killed a British engineer. Two of the
Britons were sentenced to death.

British diplomats said privately that some of the men were tortured, an
allegation the Saudi authorities denied. The men later retracted their
confessions.

The Saudis claimed that the men had attacked rivals in a turf war for control of
the lucrative bootlegging business in Saudi Arabia, where alcohol consumption is
illegal. British diplomats said the attacks were carried out by Al Qaeda
operatives. Mr. Blair was so intent on winning the Britons' release that he or
his top aides pressed the Saudis every month for pardons, officials said. Even
Prince Charles personally lobbied Crown Prince Abdullah.

While the United States also sought to use its influence with the Saudi
government to press the British case, a State Department official said, "The
Saudis kept making the excuse about us having the Saudi detainees at
Guantanamo."

In the summer of 2002, officials said, a diplomatic proposal was put forth by
the American ambassador to Saudi Arabia, Robert Jordan, who had served as a
personal lawyer for President Bush. Officials said Mr. Jordan first suggested
the swap to senior State Department officials, but when Pentagon officials
learned of the proposal, several objected.

The Saudis initially refused to make a deal. But in February 2003, an agreement
was reached in principle, people familiar with the discussions said. Prince
Saud, the foreign minister, agreed to arrange pardons and release the five
Britons and the two others if the United States would send home a handful of
Saudi prisoners from Guantanamo, the American official with knowledge of the
negotiations said.

One American official said the Saudi authorities put forward a list of about 15
candidates for release, which the Americans ultimately disregarded. Instead,
Pentagon officials instructed military intelligence officers at Guantanamo to
assemble their own list.

Detainees: Gap in U.S. Views

But even the Saudi list became the subject of controversy at an interagency
meeting at the Pentagon in April 2003. Officials from the C.I.A., the Justice
Department and the Defense Department -- which had produced the list -- all
raised objections to different detainees, officials involved in the meeting
said.

Although senior American foreign policy officials were eager to quicken the pace
of prisoner releases from Guantanamo and entertain possible transfers to foreign
governments, the Saudi case represented a departure that made many officials
uncomfortable, "so everyone moved cautiously," one official said. "The problem
was finding a group of people who could get through the interagency process."

Eventually, officials said, the Defense Department assistant secretary running
the meeting, Marshall S. Billingslea, and the senior State Department
representative, Pierre Richard Prosper, brokered a consensus among the agencies
on five detainees.

For months, American negotiators had directly linked the transfer of the Saudis
to the release of the British prisoners. But once the detainees were chosen,
American diplomats were instructed by the State Department to avoid explicitly
stating the quid pro quo in their final talks with the Saudi authorities,
officials involved in the discussions said.

"We did not want to make it a clear quid pro quo swap, so we put a distance
between them," one of the officials said. Referring to the Saudis' promised
release of the British prisoners, he added, "We did obviously say we expected
that to be resolved."

The same official said, "Everyone knew what the environment was, but
diplomatically this was not a swap."

Throughout the negotiations, Defense Department officials expressed qualms,
officials said. At one point, the department asked that the Saudis sign a
promise to return the five prisoners if the United States ever requested it.
Saudi officials immediately objected, and the request was later dropped.

"It was absurd," one person involved in the discussions said. "This was a 125-
piece jigsaw puzzle. The Saudis wanted all the pieces, and the Pentagon did not
want to let even a single one of those pieces loose."

According to several people familiar with the negotiations, the deal was
discussed at the highest levels of the American and British governments. At
least once, the general outlines of the swap were discussed by Mr. Bush and Mr.
Blair, officials said.

In March 2003, just a few days before the American-led coalition invaded Iraq,
King Fahd granted clemency to the seven men imprisoned, but did not release
them. On May 14, the five Saudis from Guantanamo were flown to Riyadh --
coincidentally just two days after three Western housing compounds were hit by
car bombs in Riyadh, killing 35 people, including eight Americans.

Throughout the summer, the Saudis "dragged their feet" on releasing the Britons,
one American said. Finally, in early August, the Britons, the Canadian and the
Belgian flew out of Saudi Arabia.

"This presented itself as a way for the United States to help its friends, both
the Brits and the Saudis," said the American involved in the discussions. "It's
what diplomacy is all about."

[ Don Van Natta Jr. reported from London for this article, and Tim Golden from
New York. ]

* * *


July 2, 2004

A VOTE FOR CONTROL

http://www.nytimes.com/2004/07/02/opinion/02FRI1.html?ex=1089345600&en=
993994a9c2d05828&ei=5062

In a recent late-evening session noted mostly for Republican grousing about
Democratic senators who had attended a screening of "Fahrenheit 9/11," the
Senate considered an amendment to the Pentagon budget bill that would require
the president to abide by the Geneva Conventions. It was passed, with the
support of five Republicans who resisted frantic arm-twisting from the
administration. Now we'll see if the House can muster the political courage to
follow suit.

The amendment, by Senator Patrick Leahy of Vermont, calls on the administration
to account for all foreign prisoners who have been denied P.O.W. status. It also
requires the government to "expeditiously prosecute" cases of terrorism to avoid
"the indefinite detention of prisoners," to say who is in the Guantanamo Bay
lockup and to account for those who are unlikely to face legal proceedings in
the next six months. Finally, it requires the Pentagon to turn over to the Red
Cross the reports on American military prisons it has been withholding.

The administration bombarded Republican senators with arguments that ranged from
disingenuous to downright silly. Defense Department lawyers complained that the
amendment did not offer clear enough standards for the treatment of prisoners --
an astonishing argument for an agency that has not been able to explain exactly
what standards it was following in Abu Ghraib. It also said that requiring an
accounting of the handling of prisoners "inappropriately intrudes" into the
president's powers. Intrudes? Yes. Inappropriately? No.

Donald Rumsfeld's lawyers offered a familiar argument, saying this is a law-
abiding administration so it's unnecessary to order it to obey international
treaties. Sadly, the record shows otherwise. Mr. Bush has declared himself free,
at times of his choosing, from the Geneva Conventions -- following advice from
Attorney General John Ashcroft, whose staff produced the infamous memo on how to
get around laws against torture. The White House's repudiation of that memo last
week was not credible. If the president thought the man who signed it, Jay
Bybee, was so out of line in his legal judgments, why did Mr. Bush then appoint
him to a lifetime seat as a federal appeals judge?

In lobbying against the amendment, the Republican Policy Committee chimed in
with a bizarre e-mail note to senators about "talking points." It said "an out-
of-control media and widespread hysteria" had led to the release of American
interrogation methods in Iraq that were too secret to be revealed to the enemy
-- but added that the techniques, at the same time, were completely innocuous.

Five Republicans voted for the amendment anyway: John McCain, Lindsey Graham,
Chuck Hagel, Arlen Specter and Mike DeWine. It now goes to negotiations with the
House -- where we hope, against experience, that sober lawmakers will stop their
leaders from killing it.

* * *


July 1, 2004

ADMINISTRATION CHANGING REVIEW AT GUANTANAMO BAY

By Neil A. Lewis and David E. Sanger

http://www.nytimes.com/2004/07/01/politics/01DETA.html

WASHINGTON, June 30 -- Bush administration officials said Wednesday that they
were trying to comply with the Supreme Court's decision limiting their ability
to imprison people indefinitely at Guantanamo Bay, by making some changes to a
recently enacted program to review each detainee's situation every year.

But some lawyers in the administration as well as some outside it said the
annual reviews, even in modified form, could not satisfy the court's
requirements for providing a fair hearing to the detainees. The administration,
they said, is still struggling to come to grips with the new legal situation the
court created at Guantanamo, which was chosen to house the detainees explicitly
with the expectation that it was outside the reach of United States law.

Some administration officials, speaking to reporters on the condition that their
names not be used, said they believed Mr. Bush and his aides were unprepared for
how broadly and decisively the court struck down the practice of indefinite
detention without hearings in almost all cases of the enemy combatants.

As of Wednesday, administration officials were still portraying the court's
rulings as a victory for President Bush that incidentally raised "some concerns"
that needed to be addressed. In Mr. Bush's first full day back in Washington
since the court's decision, his spokesman, Scott McClellan, suggested that the
administration might seek to comply with the court's mandates by adjusting the
plan for annual reviews.

"We want to make sure that we put a process in place that respects the concerns
that the Supreme Court raised and does so in a way that is consistent with the
authority of the president to exercise his constitutional responsibility during
a time of war," Mr. McClellan said. He emphasized the court's recognition of Mr.
Bush's authority rather than the limits on it imposed by the ruling.

"We are a nation at war and the president does have the right to detain enemy
combatants during this time of conflict and hold them during that conflict," he
said. "The court recognized that, but at the same time they expressed some
concerns."

But it was clear that the initiative for deciding what will happen to the
Guantanamo detainees has, to some degree, passed out of the administration's
hands to the federal courts, which will have to deal with the flood of petitions
that defense lawyers have now been given permission to file. Kristine Huskey, a
lawyer with Shearman & Sterling, the Washington firm that successfully
represented 12 Kuwaitis imprisoned at Guantanamo in the Supreme Court ruling,
said she and her colleagues were working to file motions in United States
District Court in Washington to demand early hearings on whether her clients are
lawfully detained.

"At the very least, we want them to have immediate access to lawyers and family
and also to independent medical personnel," she said.

In its rulings on Monday, the Supreme Court invited more legal action by two
American citizens held as unlawful enemy combatants. The case of Yaser Esam
Hamdi, a Louisiana-born Saudi-American who was seized in Afghanistan, was
returned to a lower court. In the case of the second detainee, Jose Padilla, who
is accused of plotting to detonate a radioactive device, the court told his
lawyers to refile their challenge in a different federal court.

The annual review program, which was to start within weeks, was supposed to
serve as the Pentagon's answer to critics who complained that the 590 or so
prisoners held at Guantanamo had no opportunity to challenge their detentions.
But the program was based on the premise that the military had complete control
over the prisoners, who would never have access to federal court.

"The rules the Pentagon announced were drafted with the assumption that there
would be no civilian court oversight," said Prof. Neal Katyal of the Georgetown
University Law School, who has been involved in the issue. "They were stacked
against a basic notion of fairness."

The annual review process did not, for example, allow for the detainees to have
lawyers to represent them before three military officers, nor would the
proceedings be public. But the greatest problem was that the judgments could be
arbitrary; the three officers were to evaluate the detainees' attitudes and
determine if they would be a threat to the United States if released even if
they had committed no offense. The panel would not have to specify its reasons
for its decisions, which were not reviewable. All these factors would appear to
make the process inadequate to the requirements of due process the court has
mandated.

Bryan Whitman, a Pentagon spokesman, said Wednesday that officials were still
discussing what steps to take in response to the court ruling. He said it was
"premature to speculate on what courses of action to take with regard to the
detainees," including the option of moving them to the United States, a
possibility first reported Wednesday by The Los Angeles Times.

Some officials said the ruling made it unlikely that any new prisoners would be
sent to Guantanamo. One official said that if Guantanamo no longer had the
feature for which it was chosen, to be outside the reach of United States law,
it no longer made sense to put new prisoners there.

Professor Katyal said that another result of the Supreme Court ruling was that
the government might move quickly to release many of the detainees to reduce the
pool of people who could file petitions in federal court. He said he expected
the government would try to persuade federal courts not to entertain any habeas
corpus petitions to review the detainees' status until they had gone through the
review process. "It gives the government a strong incentive to create a fair
system so they can ask the courts to defer to this process," he said.

* * *


June 30, 2004

THE ADVOCATES - SCRAPPY GROUP OF LAWYERS SHOWS WAY FOR BIG FIRMS

By Adam Liptak And Michael Janofsky

http://www.nytimes.com/2004/06/30/national/30LAWY.html?ex=1089172800&en=
7088d008c98fb217&ei=5062

The Center for Constitutional Rights, the scrappy left-leaning public-interest
group that filed the first lawsuits on behalf of people detained as suspected
terrorists in Guantanamo Bay, Cuba, works out of an office in Lower Manhattan,
not far from some of the biggest law firms in the nation.

But until the cases reached the Supreme Court, the group fought almost alone.

"Early on, we felt very, very isolated because we were going against the grain
of the superpatriotism around us," Ron Daniels, executive director of the
center, said.

The offices are dingy, with scuffed metal doors and odd carpeting held together
by filth and duct tape. But for the political posters, the law books and the
photographs of its founders tangling with the House Un-American Activities
Committee and celebrating voting rights victories in the South, the place could
be the home of a third-tier municipal agency.

The mood in the offices was bright yesterday, as the group savored its victory
in what some legal scholars are calling the most important civil liberties case
in half a century. On Monday, the Supreme Court ruled that the more than 600
detainees at the Guantanamo naval base had the right to challenge their
detentions in court.

"I feel most vindicated," Mr. Daniels said, "by the way many organizations are
now trying to claim a piece of this."

That is a new phenomenon. Early on, the establishment bar mostly kept its
distance from the cases, filed in early 2002, months after the Sept. 11, 2001,
attacks.

"They made a decision that it was too hot and too soon," said Barbara Olshansky,
deputy legal director of the center.

There was a single exception.

After representatives of a group of Kuwaiti detainees tried and failed to
convince two major firms to take those cases in 2002, they called on a lawyer at
Shearman & Sterling, Thomas B. Wilner. Mr. Wilner said his firm's decision to
take the cases, separate from the ones that the center litigated for Australian
and British detainees, was harder than the center's had been.

"That's their job to do these things," he said. "For a private law firm to take
it on at that time was very, very controversial. We were sort of ostracized. It
was very difficult for Shearman & Sterling."

Ms. Olshansky said times had changed.

"He had to fight with his partners to take the case," she said about Mr. Wilner.
"Now they use this case to recruit people."

The president of the center, Michael Ratner, was impressed by the firm's
commitment and its decor.

"I was walking into a place with marble floors," Mr. Ratner said yesterday,
speaking from Greece. "We have totally frayed carpets and can't afford to
replace them."

The firm, which handled a separate client from the center, donated the fees it
earned in the case to a 9/11-related charity, Mr. Wilner said. The cases of the
firm and the center were consolidated and the two worked closely together.

The phones were ringing at the center yesterday, and the big firms that had
steered clear of the case as too controversial were getting in line to help
represent the detainees.

"We're getting some very big, very straight law firms," said Jeffrey E. Fogel,
the center's legal director.

Mr. Fogel was not ready to name them, he said, until they had sorted out just
what they were signing up for.

Douglass Cassel, a law professor at Northwestern who was a consultant in the
Guantanamo cases, said the ruling on Monday left much to be determined about
detainees' representation.

"I'm not sure a big law firm would be enthusiastic about sending down their
trial partners or even associates to Guantanamo for extended proceedings before
military commissions," Professor Cassel said. "But I'm sure they would be happy
to file papers in federal court in Washington."

Officials at the Defense and Justice Departments could not clarify what
proceedings would satisfy the Supreme Court decision.

"We are still working though the ruling," a Pentagon official said. "It's not
something that we can move through that fast. There is so much we have to look
at. We're still trying to figure out how to work through it."

In a statement on Monday, the Justice Department said it was reviewing the
decision. On Tuesday, a spokeswoman said she had nothing to add.

Experts in international law said the ruling basically gave the administration
two choices. It could allow the detainees to argue their case in federal court
or challenge the federal courts as the proper setting, insisting that a military
tribunal of some sort or the Pentagon's new annual review of detainee status
provides all the protections that the Constitution requires.

On Tuesday, the Pentagon announced that it had formed a five-member tribunal to
hear cases against the first three of nearly 600 Guantanamo detainees. The
three, Ali Hamza Ahmed Sulayman al-Bahlul of Yemen, Ibrahim Ahmed Mahmoud al-
Qosi of Sudan and David Hicks of Australia, have been assigned to the same
panel. Trial dates have not been set, and it is unclear whether their cases
could also provide a forum to pursue their contentions that their detentions are
unlawful.

Bettina B. Plevan, a lawyer at Proskauer Rose in New York and the president of
the City Bar Association in New York, said the association was organizing a
meeting to discuss how firms could help with the Guantanamo cases.

The atmosphere was quite different in early 2002. Then, Mr. Ratner was
approached by representatives of Mr. Hicks. Even in the center, not everyone was
eager to take his case.

"Folks in the development department, the fund-raisers, were concerned about
what the reaction was going to be," Ms. Olshansky said.

Even filing the cases in federal court in Washington was difficult, lawyers for
the center said, because they could not for some time find a local lawyer to
sign the papers.

"The only lawyers we could get at that point were lawyers used to dealing with
really unpopular clients," Mr. Ratner said. Among them was Joseph Margulies, a
criminal defense lawyer from Minneapolis.

The first argument, before Judge Colleen Kollar-Kotelly in Federal District
Court in Washington, did not go well. The case attracted little attention and no
supporting briefs.

"I just can't say how unreceptive the court seemed to me," Mr. Ratner said. "It
felt hopeless."

Things were no better in the appeals court in Washington.

"The circuit court argument went very badly," Mr. Ratner said. "It was a very
hostile bench. By the time the case got to the Supreme Court, you had to beat
the lawyers off with a stick."

Even in the Supreme Court, though, only one domestic bar association filed a
brief. The City Bar Association claimed that distinction in a news release on
Monday.

That is odd, Mr. Fogel, the legal director, said.

"These are lawyers' issues," he said. "The right to counsel, the right to the
essential elements of due process. You would have thought you would have seen
some of the legal organizations be more sharp on these issues."

The general counsel of the bar association, Alan Rothstein, said the group was
surprised to be alone.

"Most bar associations," Mr. Rothstein said when asked about the situation,
"have stayed away from issues of this level of controversy."

* * *


June 29, 2004

FOR PRISONERS, ONLY CERTAINTY IS RIGHT TO A COURT HEARING

By Adam Liptak

http://www.nytimes.com/2004/06/29/politics/29legal.html

In a matter of days, lawyers for prisoners held at Guantanamo Bay and in a naval
brig in Charleston, S.C., will begin to test the limits of the victories they
won in the Supreme Court on Monday.

All of the prisoners now have the right to tell their stories to a court. But
how and where that will happen is not entirely clear, and the Supreme Court gave
the lower courts only limited and conflicting guidance.

In the cases of the two American citizens held as unlawful enemy combatants, the
Supreme Court struggled to describe what an appropriate proceeding would look
like. Justice Sandra Day O'Connor suggested in the case of Yaser Hamdi, who was
captured in Afghanistan, that military tribunals might be appropriate forums,
that they might consider hearsay evidence typically barred from criminal cases
and that the ordinary burden of proof might be shifted from the government to
the prisoner.

But that view attracted only three other votes.

For the more than 600 prisoners at Guantanamo, the court did little more than
order the government to respond to the 14 petitions before it.

"Whether and what further proceedings may become necessary after the respondents
make their response," Justice John Paul Stevens wrote for the majority, "are
matters we need not address now."

Even as the short-term guidance in the cases was sketchy, their long-term
implications may turn out to be enormous. Lurking in the 10 separate opinions in
the three cases were some broad propositions about the temporal and geographic
limits of the fight against terrorism.

Some justices suggested that detentions may not exceed the duration of
traditional combat operations, seeming to reject the notion that people may be
held for as long as efforts to combat terrorism persist. Others said that the
extraction of information from prisoners was not by itself enough justification
to hold prisoners for long periods.

And several justices seemed to agree that the court had extended the right to
file suits challenging the legality of detentions not only to Guantanamo Bay but
to anywhere in the world that the United States holds people of any nationality
captive away from the battlefield.

Lawyers for the Center for Constitutional Rights, which represents the 14
Guantanamo prisoners in the Supreme Court case and scores of others detained
there, said they would soon try to meet with their clients and file further
petitions, perhaps in the form of a class action. The center of legal activity
in the case will almost certainly continue to be the Federal District Court in
Washington, where the original petitions were filed.

This flood of litigation, perhaps accompanied by a series of evidentiary
hearings attended by the individual detainees, alarmed some of the justices.

"Each detainee undoubtedly has complaints - real or contrived," Justice Antonin
Scalia wrote in his dissent in the Guantanamo case, joined by Chief Justice
William H. Rehnquist and Justice Clarence Thomas. "The court's unheralded
expansion of federal-court jurisdiction is not even mitigated by a comforting
assurance that the legion of ensuing claims will be easily resolved on the
merits."

The second man called an unlawful combatant, Jose Padilla, whose case is
generally thought stronger than Mr. Hamdi's, was instructed to try again, but in
a different federal district court.

"The court says it wants a do-over," said Jonathan Freiman, one of his lawyers,
"so we'll refile in South Carolina and do it over."

Though Mr. Padilla was the only prisoner to lose his case in the Supreme Court,
the loss was only a nominal one, Mr. Freiman said.

"The court made it clear," he said, "that at a bare minimum an American citizen
in military prison has the right to a lawyer and a day in court. It's quite
possible that the court will find that an American citizen picked up in a
civilian setting cannot be put in prison at all without criminal charges being
brought against him."

The decision in the Hamdi case suggests that Mr. Padilla may not qualify as an
unlawful combatant at all. For purposes of the Hamdi case, at least, the four-
justice plurality considered only people "part of or supporting forces hostile
to the United States or coalition partners" who "engaged in an armed conflict
against the United States" as potentially subject to detention as unlawful
combatants.

Mr. Padilla, who was captured at an airport in Chicago and who has been accused
of contemplating various terrorist acts, may not fit that definition.

In the Hamdi case, Justice O'Connor gave the first inkling of the Supreme
Court's thinking about the temporal limit of what the administration calls the
war on terror. Because that war could last, she said, for generations or longer,
"Hamdi's detention could last for the rest of his life."

While she did not reject that possibility outright, she appeared to rely heavily
on the fact that the war in Afghanistan is continuing, suggesting that the legal
landscape for people like Mr. Hamdi and Mr. Padilla would be radically different
once traditional combat there ends.

That is so, she wrote, because the purpose of detaining unlawful combatants is
to prevent them from returning to the field of battle to take up arms once
again.

The most lasting implication in the decisions may be the apparent extension of
the right to habeas corpus to noncitizens held abroad.

"From this point forward," Justice Scalia wrote in the Guantanamo decision,
referring to the more than 600 prisoners there, "federal courts will entertain
petitions from these prisoners, and others like them around the world,
challenging actions and events far away, and forcing the courts to oversee one
aspect of the executive's conduct of a foreign war."

Though the Supreme Court considered no alternative to suits in the federal
courts to consider the claims of the Guantanamo detainees, Justice O'Connor
wrote that "an appropriately authorized and properly constituted military
tribunal" might hear Mr. Hamdi's challenge. It appears that no such tribunals
are currently available.

Military commissions were created by executive order in 2001 to try unlawful
enemy combatants, but they are not authorized to try American citizens.

[ Deborah Sontag contributed reporting for this article. ]

* * *


New York Times --

June 25, 2004

LEGAL SCHOLARS CRITICIZE MEMOS ON TORTURE

By Adam Liptak

http://www.nytimes.com/2004/06/25/politics/25LEGA.html

Legal scholars asked to assess the recently released Justice Department
memorandums concerning torture all but unanimously agreed that the quality of
the legal work in them is poor.

It is unsurprising that law professors, who are generally liberal, should differ
with the conclusions reached in the memos, which take a broad view of
presidential power. But their attack on the professional quality of the memos
was unusually sharp.

Harold Hongju Koh, dean of the Yale Law School, called the memorandums
"embarrassing" and "abominable."

Martin Flaherty, an expert in international human rights law at Fordham
University, said, "The scholarship is very clever and original but also extreme,
one-sided and poorly supported by the legal authority relied on."

Cass Sunstein, a law professor at the University of Chicago, said: "It's
egregiously bad. It's very low level, it's very weak, embarrassingly weak, just
short of reckless."

John Yoo, a Berkeley law professor who worked in the Office of Legal Counsel,
the Justice Department unit that prepared the memorandums, said much of such
criticism was political rather than legal.

"Some critics of the Justice Department's work seem to assume that it is
politically incorrect to ask the meaning of a publicly enacted law," he said,
referring to a federal law banning torture. That law defines torture as the
infliction of "severe physical or mental pain or suffering."

In one memorandum, dated August 2002, Jay S. Bybee, who is now a federal appeals
court judge, concluded that only physical pain as intense as that accompanying
organ failure or death qualified as torture. The Bush administration has
disavowed that memorandum.

Dean Koh said the August 2002 memorandum's analysis of what constitutes torture
was "utterly unjustifiable."

"They took the narrowest definition," he said. "It would be as if I said that
murder constitutes only serial killing."

Other scholars defended the memorandums as at worst unpolished.

"At various points the analysis seems to require the reader to draw a
qualification in one part and apply it to a proposition in another part," said
Douglas W. Kmiec, a law professor at Pepperdine University.

But Professor Kmiec, who was in charge of the Office of Legal Counsel in the
administrations of President Ronald Reagan and the first President Bush, said
exploration of the question of what constituted torture was appropriate and
important.

"One of the most important functions of the O.L.C. is to be candid, to explore
the worst case scenario, to assume we are facing the worst case scenario and to
ask the question of what authority the president has to confront the situation."

Charles Fried, a law professor at Harvard and the solicitor general in the
Reagan administration, said it was important to analyze legal questions fully
and dispassionately. "There's nothing wrong with exploring any topic to find out
what the legal requirements are," he said.

Others were less kind.

The section of the August 2002 memorandum specifically disavowed by the White
House, concerning the president's power as commander in chief to ignore laws
against torture, drew particular scorn.

"If the president has commander-in-chief power to commit torture," Dean Koh
said, "he has the power to commit genocide, to sanction slavery, to promote
apartheid, to license summary execution."

Several scholars criticized individual memorandums as incomplete.

The section of the August 2002 memorandum discussing the commander-in-chief
power, for instance, failed to discuss or even cite the leading Supreme Court
decision on the subject, several scholars said. That decision, rejecting the
argument that President Harry S. Truman had inherent constitutional authority to
seize private steel mills, is known as Youngstown.

"You just don't begin a discussion of presidential power without mentioning
Youngstown," said Jack Balkin, a professor at Yale Law School.

Douglass Cassel, a law professor at Northwestern, went further. "That's not just
poor judgment," he said. "That's incompetence."

A memorandum on Jan. 9, 2002, from Justice Department lawyers to William J.
Haynes, the general counsel of the Defense Department, addressed "the effect of
international treaties and federal laws on the treatment of individuals detained
by the U.S. Armed Forces during the conflict in Afghanistan." But it failed to
discuss a treaty and a federal law concerning torture.

"The failure to analyze two critical sources of law -- namely the convention
against torture and the torture statute -- is incompetence," said Stephen
Gillers, a law professor at New York University.

A former Justice Department lawyer said that not every topic could be discussed
in every memorandum. The torture law not covered in the January 2002 memorandum,
for instance, was discussed at length in the August 2002 memorandum.

The later memorandum evaluated potential defenses to criminal prosecutions for
torture.

"Its sweeping, expansive view of necessity and self-defense would curl the hair
of people in the criminal division" of the Justice Department, said Professor
Dellinger, who was in charge of the legal counsel's office in the Clinton
administration.

Scott Horton, an expert in human rights law at Patterson, Belknap, Webb & Tyler
in New York, said the memorandums would have a practical effect in the
prosecution of civilians who engaged in abuses in Iraq and Afghanistan.

"Defense lawyers are going to have a field day," he said. "These memoranda will
directly undermine the enforcement of the law."

Professor Kmiec said it would be important to know why the disavowed memo was
prepared at all.

"Part of the premise of the memo is that there are defenses to extreme methods
of interrogation," he said. "The memo explains issues of necessity, self-defense
and the meaning and applicability of treaties. All of that is thorough in the
O.L.C. sense. But notice that it starts with a premise that extreme methods of
interrogation are needed. 'Why would you start with that premise?' I would ask,
if I were still head of the O.L.C."

* * *


June 22, 2004

RELEASE OF INTERROGATION FILES IS EXPECTED TODAY

http://www.nytimes.com/2004/06/22/politics/22CND-ABUS.html

WASHINGTON (AP) -- The White House has decided to release a thick file of papers
documenting its internal deliberations on rules for interrogating prisoners in
facilities from Abu Ghraib in Iraq to Guantanamo Bay, Cuba.

The two-inch stack of papers was to be released late Tuesday. It is intended to
counter what White House aides fear is a growing perception that the
administration authorized torture as an interrogation technique.

"We do not condone torture. I have never ordered torture. I will never order
torture," Bush told reporters in the Oval Office. "The values of this country
are such that torture is not a part of our soul and our being."

Bush also promised "an open, fair trial for those accused of breaking U.S.
military law." But he did not answer a question about whether he would back an
independent inquiry of the prison scandal. Nor did Bush explain why he
authorized the memos' release on Tuesday.

His chief spokesman, Scott McClellan, said: "We believe it's important for the
American people to have an accurate picture of the policies that we put in place
and an accurate picture of the techniques that were approved by the Pentagon.
It's important to set the record straight."

"The president recognizes that his most important responsibility to the
American people is their safety and security," McClellan said. "We are a
nation that is at war but we are also a nation of laws and the president expects
our government to comply with laws and our treaty obligations."

White House legal counsel Alberto Gonzales was set to brief reporters on the
documents later Tuesday.

Secretary of State Colin Powell left it to the Pentagon to explain its
interrogation procedures. But Powell, a former four-star general, told reporters
that it has always been his position "and a code that I lived with for 35 years
and four months, that we don't torture people who are in our care."

The papers are meant to show "the White House's deliberative process" in
arriving at rules for complying with the Geneva Convention and rules on
interrogation techniques, one senior official said, requesting anonymity on
grounds that Gonzales was to talk on the record.

The administration decided to release the papers to fight the "constant drip on
this issue" -- a continuous stream of leaks and accusations that the
administration had stepped outside the bounds of international law, the official
said. "Everyone reached the conclusion that the administration had authorized
torture," he said.

The official, saying the United States is facing a new kind of war with an enemy
that does not respect or operate under the rules of the Geneva Convention,
pointed to the kidnapping and beheading of American civilian engineer Paul M.
Johnson Jr. in Saudi Arabia last week. The papers being released Tuesday show
that the White House and other agencies are wrestling with "how best to address
that foe," one official said.

The documents cover a period of several months and were generated by several
agencies, including the Department of Justice. One set of papers alone spans 50
pages.

Among the papers are some that have already been seen by the public, including
previously confidential memos in which Justice Department lawyers concluded that
Taliban and al-Qaida fighters are not protected by the Geneva Conventions
governing the treatment of prisoners of war because they do not satisfy four
main conditions of the treaty itself.

Democrats criticized those memos as laying the legal foundation for Iraqi
prisoner abuses, but administration officials said they were aimed mainly at
showing that international treaties banning torture do not apply to al-Qaida and
Taliban prisoners.

At a June 10 news conference, President Bush sidestepped questions about whether
he had seen or authorized the Justice Department papers.

"The authorization I issued was that anything we did would conform to U.S. law
and would be consistent with international treaty obligations. That's the
message I gave our people," Bush said in Savannah, Ga. "I can't remember if
I've seen the memo or not, but I gave those instructions."

That memo, which surfaced earlier this month, intensified criticism from
congressional Democrats and human rights activists about what they consider a
concerted effort to circumvent U.S. and international laws against torture
during the fight against terrorism.

Human rights lawyers took the unusual step of filing a racketeering lawsuit this
month against U.S. civilian contractors who worked at the Abu Ghraib prison near
Baghdad. The suit alleges contractors conspired to execute, rape and torture
prisoners during interrogations to boost profits from military payments.

A series of government lawyers' memos, many of them still secret but leaked to
the news media this month, said the president had the legal authority to allow
torture of detainees during interrogations. Administration officials, however,
said such a policy never was adopted.

But some of the papers to be released Tuesday have never been disclosed, a
senior official said.

* * *


June 22, 2004

US RULES ON PRISONERS SEEN AS A BACK AND FORTH OF MIXED MESSAGES TO GI's

By Douglas Jehl

http://www.nytimes.com/2004/06/22/politics/22ABUS.html?ex=1088481600&en=
f534ddff2bef2bb4&ei=5062

[ The following article was reported by Douglas Jehl, Eric Schmitt and Kate
Zernike and was written by Mr. Jehl. ]

WASHINGTON, June 21 -- Since the Sept. 11 attacks, the Bush administration's new
rules governing treatment of foreign prisoners have been contradictory and have
sent mixed messages to American soldiers, according to military personnel and
documents.

Six investigations are under way into abuses of detainees; none are expected to
produce any conclusions soon. A close review of recently disclosed documents and
interviews with soldiers, officers and government officials find a broader
pattern of misconduct and knowledge about it stretching into the middle chain of
command. But there is no clear evidence to date that the highest military or
civilian leaders ordered or authorized the mistreatment of prisoners at
American-run prisons in Iraq, Afghanistan and Guantanamo Bay, Cuba.

Still, the ever-shifting rules, in which lists of accepted interrogation tactics
were widened drastically before being reined in over 17 crucial months, helped
foster a climate in which abuse could flourish.

Starting with the 17 interrogation techniques approved in a standard Army
manual, commanders at the Guantanamo prison doubled the permitted methods by
late 2002, before shrinking back the list. In Iraq last fall, directives on
treatment of prisoners were changed at least three times in six weeks. Some of
the authorized procedures had been banned as too harsh months earlier at
Guantanamo.

Some officers skirted international treaties governing prisoner treatment, some
soldiers have said, instructing subordinates to hide detainees from monitors
sent by the International Committee of the Red Cross. In one instance, Defense
Secretary Donald H. Rumsfeld approved an order to hold a suspected Iraqi
terrorist but to keep his name off the prison rolls, effectively shielding the
"ghost detainee" from Red Cross inspectors.

Lacking clear guidance, soldiers at various jails were apparently confused about
the rules. In Iraq, some guards were such sticklers that they demanded paperwork
to take away detainees' blankets, while others did not understand that they
needed written authorization to intimidate prisoners with dogs.

Many guards at the Abu Ghraib prison in Iraq said they had been told by
intelligence officers to "soften up" detainees, but some thought that meant
making them do calisthenics to tire them out, while others took it to mean
forcing them to crawl naked on leashes for hours.

Beatings were accepted enough at Abu Ghraib that some soldiers recorded the
number of stitches their victims required with tack marks on the wall. In the
worst cases in Afghanistan and Iraq, abuse resulted in deaths, including 10
cases now being investigated as homicides.

While President Bush has portrayed the events at Abu Ghraib as the actions of
just a few soldiers at one prison, the picture emerging from documents,
interviews and Congressional testimony points to a broader pattern of misconduct
and knowledge about it stretching up the chain of command.

While the mistreatment did not go entirely unnoticed, many soldiers who had
hints of the abuse did not report it. In a chaotic environment in the midst of a
war, some soldiers said later, they assumed it must have been authorized.

"It was confusing the way the place was run," Sgt. Samuel Jefferson Provance
III, who worked in interrogations at Abu Ghraib as part of the 302nd Military
Intelligence Battalion, testified at a military hearing last month. "It was a
shocking experience."

For military officials at the highest levels, the administration's fight against
terrorism was a new kind of war. As Gen. James T. Hill, head of the military's
Southern Command, said, describing the government's post-Sept. 11 effort to
rewrite longstanding practices about prisoner treatment, "we really were moving
into uncharted waters."

Geneva Rules Didn't Apply

Soon after the attacks of Sept. 11, 2001, as planning began for the invasion of
Afghanistan, the Pentagon asked Justice Department lawyers to assess whether
detainees held in Afghanistan or in the new American-run prison at Guantanamo
Bay could claim they had been mistreated under the Geneva Conventions and
federal and international laws.

The lawyers concluded that the Geneva Conventions did not apply, because
Guantanamo was outside the territorial United States, and because Al Qaeda and
the Taliban were not legitimate states, so were not parties to the agreements.
One memorandum argued that the president could authorize even "cruel, inhuman,
and degrading" treatment to protect national security, as long as it did not
cause "great suffering or serious bodily injury" to detainees, like "killing or
torturing them."

Secretary of State Colin L. Powell and State Department lawyers fired back
objections, but apparently lost. An August 2002 memo from the Justice Department
to the White House counsel on interrogation standards further whittled down the
definition of torture. To qualify, the document said, mistreatment had to
inflict pain "equivalent in intensity to the pain accompanying serious physical
injury, such as organ failure, impairment of bodily function, or even death."

Military officials have described those legal arguments as theoretical and
removed from the decision making about rules for interrogation and treatment of
prisoners.

But first in Guantanamo and Afghanistan, and then in Iraq, commanders authorized
procedures harsher than those spelled out in the Army's interrogations field
manual. The 17 general techniques, like manipulating a prisoner's emotions or
persuading the prisoner that it was futile to resist, formed a boundary that the
American military had heeded in the recent past.

Like the legal memorandums, the decision to go beyond the field manual was based
on the ground that the Geneva Conventions did not apply. For prisoners in Iraq,
the reasoning was that the protections were not as restrictive as previously
interpreted by the United States.

Harsher Procedures Added

At Guantanamo, the first clear widening of authority came in December 2002, when
commanders asked the Pentagon for more latitude in interrogating a Saudi Arabian
prisoner believed to be the planned 20th hijacker of Sept. 11.

The authorities thought the man, Mohamed al-Kahtani, had information about
possible future attacks, but he had resisted standard interrogation techniques.

In response, Mr. Rumsfeld authorized at least 17 new procedures beyond those in
the field manual, a senior Pentagon official said. They applied to all
Guantanamo prisoners.

Those harsher techniques included hooding; exploiting a prisoner's phobias,
sometimes using muzzled dogs in interrogations; removing some of a detainee's
clothing; and the use of "minimum physical contact" like poking or grabbing.

Even though these harsher techniques were approved, senior military officials
said last week that the those four specific practices were never used at
Guantanamo. Still, interrogators at the site and military lawyers in Washington
objected. Just over a month later, Mr. Rumsfeld ordered a group of military
lawyers, intelligence analysts and policy makers to review the rules.

On April 16, 2003, Mr. Rumsfeld narrowed the list of approved techniques. He
permitted 24 methods at Guantanamo, including 17 from the Army manual, but
stipulated that 4 of them required his explicit approval. They involved using
incentives to cooperate, like offering hot showers in the winter, segregation
for more than 30 days, good-cop-bad-cop interrogation and an approach called
"pride and ego down," which exploits a prisoner's loyalty, intelligence or
perceived weakness.

Defense officials said those more aggressive techniques had been used with only
two prisoners at Guantanamo and did not constitute torture.

In Iraq, there had been no formal interrogation rules in place beyond those in
the Army manual until late August 2003.

Then, officers at Abu Ghraib sought to give interrogators more freedom and
proposed a set of rules drafted by an Army unit that had recently arrived from
Afghanistan. The unit, the 519th Military Intelligence Battalion, had a
questionable record. Two prisoners under its supervision at Bagram Collection
Point in Afghanistan died in December 2002, apparently in homicides that are
still being reviewed by criminal investigators.

The battalion's commander, Capt. Carolyn A. Wood, proposed 30 interrogation
techniques, and two lawyers working for Lt. Gen. Ricardo S. Sanchez, the ground
commander in Iraq, approved them. Defense officials have refused to say exactly
what procedures were authorized under the proposal or under later directives put
into effect in Iraq. A senior Pentagon official said last week that it was
unclear whether those additional techniques had ever been used in
interrogations.

Wider, Then Narrower Policy

Meanwhile, another crucial chain of events had already been set in motion.
Stephen A. Cambone, Mr. Rumsfeld's top intelligence official, encouraged Maj.
Gen. Geoffrey D. Miller, then the head of detention operations at Guantanamo, to
visit Iraq to find ways to improve the quality of intelligence extracted from
detainees about the growing anti-American insurgency.

On Sept. 9, General Miller completed a review of operations in Iraq and
recommended a detainee interrogation policy that borrowed heavily from the
procedures approved for Guantanamo. He proposed establishing a new interrogation
and debriefing center and ensuring that military police officers were assigned
to help set the conditions for questioning.

On Sept. 14, General Sanchez authorized variations on what General Miller had
recommended. Those rules allowed the use of harsh procedures banned from
Guantanamo, including using sleep deprivation, to as little as four hours' rest
each 24 hours, and making prisoners stand or crouch in positions for up to an
hour, according to Senate aides who have read the confidential document.

As in Guantanamo, the policy ignited a debate among military lawyers, with
particular objections coming from the Central Command.

So on Oct. 12, General Sanchez issued a much narrower policy. Most of the
harsher methods automatically authorized in the earlier directive, like
segregating a prisoner for more than 30 days, would not be permitted without the
general's approval.

According to General Sanchez's top lawyer, Col. Marc Warren, the new procedures
were consistent with the Geneva Conventions. But the policy still allowed
interrogators to improvise if they received approval, according to a senior
military official who briefed reporters at the Pentagon last month.

It remains unclear whether the changes were communicated through the ranks of
interrogators and guards, particularly those at Abu Ghraib. Rules posted on the
wall in the prison's Joint Interrogation and Debriefing Center, for example,
were apparently outdated.

Some troubling practices were clearly tolerated, soldiers said in interviews and
sworn statements. Forced nudity was common in the prison's highest-security
area, or "hard site," overseen by military intelligence officers. One
interrogator told investigators that he "generally" threw tables around a room
holding detainees, while another said she did not regard slapping a detainee as
abusive.

Several soldiers said in interviews that Lt. Col. Steven L. Jordan, who was in
charge of the interrogation center, had handcuffed and hooded detainees who had
been beaten and had hidden them in a cell during a Red Cross visit. Others said
Col. Thomas M. Pappas, the highest-ranking military intelligence officer at the
prison, had permitted them to intimidate detainees with dogs. None of the dog
handlers have been charged with wrongdoing, and two of them have said they were
following orders from Colonel Pappas.

By the accounts of the seven soldiers now charged, the abuses seen in the
notorious photographs from the prison began as an attempt to encourage prisoners
to talk.

Pfc. Lynndie R. England, telling investigators last month about what was going
on in prison photographs, said making prisoners crawl with leashes was intended
as a "humiliation tactic" to get them to tell more about the rape of an Iraqi
boy.

But several of the soldiers charged said later acts depicted in photographs,
like piling prisoners naked or forcing them to masturbate, had nothing to do
with interrogations. "We thought it looked funny, so pictures were taken,"
Private England told investigators.

Senior Army officers in Baghdad say they did not learn about those abuses until
a soldier came forward in January. But several senior Army officers knew by last
November that the Red Cross had complained about problems at the prison,
including forced nudity and physical and verbal abuse of prisoners.

Among those aware of the concerns were General Sanchez's top deputy, Maj. Gen.
Walter Wojdakowski; his intelligence officer, Maj. Gen. Barbara G. Fast; and his
top lawyer, Colonel Warren. In addition, a small unit inside the prison began
reporting beatings and other abuses last fall in documents sent to military
lawyers in Baghdad and a review board of colonels, according to military
intelligence officers.

The role played by General Sanchez remains a particular focus of investigators.
He authorized interrogation procedures in September that he had banned 28 days
later, and he visited Abu Ghraib at least three times in October, when the worse
of the abuses occurred. He has said he did not learn of the incidents until
January.

Last month, in response to growing concerns in Congress, General Sanchez
narrowed the interrogation rules in Iraq once again, barring virtually all
coercive tactics.

In early June, the general removed himself as the officer overseeing an inquiry
into the role of military intelligence soldiers in the prisoner abuse, clearing
the way for an Army general to interview him for the investigation.

* * *


June 21, 2004

US SAID TO OVERSTATE VALUE OF GUANTANAMO DETAINEES

By Tim Golden And Don Van Natta Jr.

http://www.nytimes.com/2004/06/21/politics/21GITM.html

GUANTANAMO BAY, Cuba, June 19 -- For nearly two and a half years, American
officials have maintained that locked within the steel-mesh cells of the
military prison here are some of the world's most dangerous terrorists -- "the
worst of a very bad lot," Vice President Dick Cheney has called them.

The officials say information gleaned from the detainees has exposed terrorist
cells, thwarted planned attacks and revealed vital intelligence about Al Qaeda.
The secrets they hold and the threats they pose justify holding them
indefinitely without charge, Bush administration officials have said.

But as the Supreme Court prepares to rule on the legal status of the 595 men
imprisoned here, an examination by The New York Times has found that government
and military officials have repeatedly exaggerated both the danger the detainees
posed and the intelligence they have provided.

In interviews, dozens of high-level military, intelligence and law-enforcement
officials in the United States, Europe and the Middle East said that contrary to
the repeated assertions of senior administration officials, none of the
detainees at the United States Naval Base at Guantanamo Bay ranked as leaders or
senior operatives of Al Qaeda. They said only a relative handful -- some put the
number at about a dozen, others more than two dozen -- were sworn Qaeda members
or other militants able to elucidate the organization's inner workings.

While some Guantanamo intelligence has aided terrorism investigations, none of
of it has enabled intelligence or law-enforcement services to foil imminent
attacks, the officials said. Compared with the higher-profile Qaeda operatives
held elsewhere by the C.I.A., the Guantanamo detainees have provided only a
trickle of intelligence with current value, the officials said. Because nearly
all of that intelligence is classified, most of the officials would discuss it
only on the condition of anonymity.

"When you have the overall mosaic of all the intelligence picked up all over the
world, Guantanamo provided a very small piece of that mosaic," said a senior
American official who has reviewed the intelligence in detail. "It's been
helpful and valuable in certain areas. Was it the mother lode of intelligence?
No."

In September 2002, eight months after the detainees began to arrive in Cuba, a
top-secret study by the Central Intelligence Agency raised questions about their
significance, suggesting that many of the accused terrorists appeared to be low-
level recruits who went to Afghanistan to support the Taliban or even innocent
men swept up in the chaos of the war, current and former officials who read the
assessment said.

Nearly two years later, military officials said, the evidence against many of
the detainees is still so sparse that investigators have been able to deliver
cases for military prosecution against only 15 of the suspects, 6 of whom have
already been designated as eligible for trial by President Bush. Investigators
are now preparing 35 to 40 other cases for the military tribunals, those
officials said.

In interviews, officials at Guantanamo and in the Pentagon defended the
intelligence-gathering effort and said it continued to produce useful
information. "Every single day we get some piece of information that's relevant
to now," said Steve Rodriguez, who oversees the interrogation teams at the base.

Officials said the intelligence had allowed them to piece together a more
detailed picture of Al Qaeda before Sept. 11, 2001, including how young jihadis
were recruited and screened, how the organization moved funds and how it related
to other militant groups. They said some were important Qaeda operatives,
including financiers, a bodyguard for Osama bin Laden and -- a recent discovery
-- a militant who they say helped recruit 9/11 hijackers.

Yet even as he argued the importance of that information, the commander of the
task force that runs the Guantanamo prison, Brig. Gen. Jay W. Hood, acknowledged
disappointment among some senior officials in Washington.

"The expectations, I think, may have been too high at the outset," he said.
"There are those who expected a flow of intelligence that would help us break
the most sophisticated terror organization in a matter of months. But that
hasn't happened."

In recent weeks, the Pentagon has initiated a broad study of prison operations,
including an examination of the criteria used to determine which detainees are
held there, officials at Guantanamo said. "Everything is on the table," said
Col. Tim Lynch, the chief of staff at Guantanamo.

The Pentagon's determination to hold the detainees as "enemy combatants" --
beyond the reach of United States law and unbound by the Geneva Conventions on
treatment of prisoners of war -- has also come under renewed scrutiny in the
wake of the scandal over abuses at Abu Ghraib prison in Iraq. Defense Department
officials have acknowledged that American jailers in Iraq, under pressure to
produce better intelligence, adapted some new, more aggressive interrogation
techniques that were approved by Secretary of Defense Donald H. Rumsfeld for use
at Guantanamo.

While refusing to discuss specifics, Pentagon officials called the interrogation
methods used at Guantanamo humane and said they had applied more severe methods
only sparingly. In at least one of those cases, they said, the techniques
prompted an important Qaeda member to give up vital information.

But new details of that case, which involved a 26-year-old Saudi man who
apparently tried unsuccessfully to enter the United States as the 20th hijacker
in the attacks of Sept. 11, 2001, call some of those assertions into question.

Several officials familiar with the case said that for months, no one at
Guantanamo even knew who the detainee, Mohamed al-Kahtani, was and that he was
identified only after the Federal Bureau of Investigation stepped in. The
officials also said that the harsher interrogation methods used against him were
largely unsuccessful, that he had little sense of other Qaeda plots, and that he
had been most forthcoming under more subtle persuasion.

Even now, officials acknowledge that they have been unable to get any
information from at least 60 detainees -- including in some cases their
identities. Those uncertainties, the officials said, leave open the possibility
that more serious terrorists may be among Guantanamo's detainees.

"We weren't sure in the beginning what we had; we're not sure today what we
have," said Gen. James T. Hill, the head of the Army's Southern Command. "There
are still people who do not talk to us. We could have the keys to the kingdom
and not know it."

The problems of collecting information about the detainees have also hampered
their screening for possible release. As a result, some of the men are being
held apparently as much for what officials do not know about them as for what
they do.

Officials said they had cautiously vetted the 146 detainees who have been freed,
including the 16 who had been transferred to the custody of their home
governments. Even so, at least a handful of serious mistakes have already been
made.

New accounts from officials in Afghanistan and the United States indicate that
at least 5 of the 57 Afghan detainees released have returned to the battlefield
as Taliban commanders or fighters. Some of the five have been involved in new
attacks on Americans, officials in southern Afghanistan said, including a
notorious Taliban commander, Mullah Shahzada, who was reportedly killed in a
recent accident.

American and foreign officials have also grown increasingly concerned about the
prospect that detainees who arrived at Guantanamo representing little threat to
the United States may have since been radicalized by the conditions of their
imprisonment and others held with them.

"Guantanamo is a huge problem for Americans," a senior Arab intelligence
official familiar with its operations said. "Even those who were not hard-core
extremists have now been indoctrinated by the true believers. Like any other
prison, they have been taught to hate. If they let these people go, these people
will make trouble."

First Wave

Initial Screenings Were Flawed

As the Taliban government crumbled, American officials braced themselves for
what they expected would be waves of hardened terrorists captured in the
Afghanistan war. Military officials said they had culled the most dangerous of
the roughly 10,000 prisoners caught there and shipped them to Guantanamo Bay.

"These are people who would gnaw through hydraulic lines at the back of a C-17
to bring it down," Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff,
said as the first 20 shackled prisoners arrived in Cuba on Jan. 11, 2002.

The first makeshift prison at Guantanamo, called Camp X-Ray, was built and run
accordingly. Inmates were dressed in Day-Glo orange jump suits and shackled
whenever they were moved, their eyes covered by blacked-out goggles or hoods.
Fearing that the terrorists among them might somehow seek revenge, officials
instructed military police guards to cover their name badges and avoid any
mention of their families, hometowns or outside jobs.

"We really didn't have a good feel for who we were dealing with," Gen. Rick
Baccus, who took over command of the military police units two months after the
camp opened, said in an interview. "We had to err on the side of security."

But almost immediately, questions began to emerge -- in Afghanistan, at
Guantanamo and eventually in Washington -- about the pedigrees of some of the
men and why they had been selected to go to Cuba.

At a sprawling detention camp at the airport in Kandahar, Afghanistan, military
intelligence officers, F.B.I. agents and others scrambled vainly to keep up with
the torrent of prisoners, officers who served there said, making it nearly
impossible to weed out the most dangerous.

"It was like trying to catch guys as they ran by," a former Kandahar
interrogator recalled. "Some you were going to miss."

C.I.A. operatives took their pick of prisoners turned over by commanders of the
Afghan Northern Alliance. They also took custody of some military prisoners in
whom they had interest, military officers said.

"Anybody who we thought was going to have significant value we had priority in
debriefing," said a former senior C.I.A. official. "We focused on the
individuals we got in Afghanistan and elsewhere who we thought were linchpins in
the process. D.O.D. got stuck processing the rest."

Officials of the Department of Defense now acknowledge that the military's
initial screening of the prisoners for possible shipment to Guantanamo was
flawed. It was not until hundreds of detainees had arrived here that the
classified criteria even referred directly to the threat that they might
represent, military officials said.

But some clues were obvious. Some of the detainees were elderly or infirm. One
of those was Faiz Muhammad, a genial old man with a long wispy beard whom
interrogators nicknamed "Al Qaeda Claus." Another, who was able to make the trip
only after extensive medical care from Army doctors in Afghanistan, quickly
became known as "Half-Dead Bob."

"You had a group of people who didn't come with ID cards, who weren't wearing
uniforms, who were of all kinds of different nationalities, gathered up off
various parts of the battlefield in a very chaotic environment," General Hill,
the Southern Command chief, recalled. "We were all in very uncharted waters."

A former secretary of the Army, Thomas E. White, who supervised a team of senior
Pentagon officers at Guantanamo, said he was told by a senior military official
at the base on an early visit that only a third to a half of the detainees
appeared to be of some value and that sorting through them would be a
considerable problem.

In late summer 2002, a senior C.I.A. analyst with extensive experience in the
Middle East spent about a week at the prison camp observing and interviewing
dozens of detainees, said officials who read his detailed memorandum.

While the survey was anecdotal, those officials said the document, which
contained about 15 pages, concluded that a substantial number of the detainees
appeared to be low-level militants, aspiring holy warriors who had rushed to
Afghanistan to defend the Taliban, or simply innocents in the wrong place at the
wrong time.

Senior military officials now readily acknowledge that many members of the
intelligence team initially sent to Guantanamo were poorly prepared to sort
through the captives. During the first half of 2002, they said, almost none of
the Army interrogators had any substantial background in terrorism, Al Qaeda or
other relevant subjects.

One Army intelligence reservist had previously been managing a Dunkin' Donuts.
Many younger Army interrogators had never questioned a real prisoner before. As
in Afghanistan, interrogators at Guantanamo asked the same basic questions again
and again, many former detainees recalled.

"They asked me, 'Do you know the Taliban? Do you know Mullah Muhammad Omar? Do
you know bin Laden?' " said Jan Muhammad, 37, a farmer from Helmand Province who
said he had been forcibly conscripted into the Taliban. "I said, 'I have never
seen bin Laden; I have not even seen bin Laden's car driving past.' "

Interpreters were in such short supply that the Army turned to private
contractors, most of whom knew nothing about intelligence. The Southern Command,
responsible for military operations in Latin America, had no particular
experience with Al Qaeda or Afghanistan, either. Nonetheless, its intelligence
analysts often rewrote reports on the detainees as they saw fit, former
interrogators complained.

One of the few American intelligence sectors to show any early interest in the
detainees was an obscure defense intelligence unit that traced weapons around
the world, one interrogator said. As a result, interrogators were required to
question detainees about the serial numbers on rifles they had used and the
markings on their bullets. "Of course, they had no idea," the interrogator said.

Military intelligence units at Guantanamo managed to solve some of the
shortcomings, gathering available experts -- a Lebanese-born F.B.I.
counterterrorism specialist and an Afghan interpreter, for example -- and having
them conduct a daylong seminar on Al Qaeda, the Taliban and other relevant
subjects.

But senior defense officials grew frustrated with the shortage of compelling
information. "At the beginning, the process was broken everywhere," said Lt.
Col. Anthony Christino III, a recently retired Army intelligence officer who
specialized in counterterrorism and was familiar the Guantanamo intelligence.
"The quality of the screening, the quality of the interrogations and the quality
of the analysis were all very poor. Efforts were made to improve things, but
after decades of neglect of human intelligence skills, it can't be fixed in a
few years."

Defense officials ultimately ordered a broad review of the intelligence-
gathering effort. That assessment, in September 2002, led to a series of changes
including a major overhaul of intelligence databases and the addition of 30 days
of basic training for interrogators and analysts at Fort Huachuca, Ariz., a
course quickly nicknamed "Terrorism 101."

Around the same time, faced with continuing resistance from many detainees, some
military intelligence officers urged that they be allowed to take advantage of
the suspension of Geneva Conventions to try more coercive methods -- a step that
led to bitter conflicts between military intelligence members and military
criminal investigators assigned to prepare cases for the tribunals.

"As time went on, people wanted to do more," a senior officer who served there
said. "The detainees were resistant. They knew we weren't going to torture them.
So we needed to come up with a Plan B for the small group of people who wouldn't
talk and who we thought did have intelligence."

The 20th Hijacker

It Took Months to Identify Kahtani

For interrogators at Guantanamo looking to score a high-profile intelligence
victory, Mr. Kahtani, the Saudi who was the so-called 20th hijacker, appeared to
be their man. In the end, though, his case instead came to illustrate some of
the problems they faced in determining who they were holding and what they knew.

According to several officials familiar with the case, military intelligence
officers had no idea who the young detainee was when he arrived in Cuba from
Afghanistan, where he had been captured on the battlefield in December 2001. For
some weeks, the officials said, Mr. Kahtani -- like most of the detainees --
refused to cooperate with interrogators, withholding his name and denying their
suspicions that he was Saudi.

Then, in July 2002, a routine check by F.B.I. agents matched his fingerprints to
a thumbprint from a man who had been turned back by an immigration official
after flying into Orlando International Airport in Florida from London on Aug.
3, 2001, without a return ticket or hotel reservation.

Members of the F.B.I. unit investigating the Sept. 11 attacks were immediately
intrigued, officials said. On that same day in August 2001, they noted, toll
records showed calls from a pay phone at the Orlando airport to Mustafa al-
Hawsawi, a Qaeda member in the United Arab Emirates who served as a logistical
coordinator for the attacks, the officials said.

Checking surveillance camera recordings for that day, the agents found that a
rental car used by the hijackers' leader, Mohamed Atta, entered an airport
parking lot shortly before Mr. Kahtani's Virgin Atlantic flight arrived from
London, officials said.

In July 2002, about a week after Mr. Kahtani's identity was discovered, military
officials invited the F.B.I. to question him, officials said.

The bureau sent a longtime counterterrorism specialist who is fluent in Arabic
and worked extensively on investigations of Al Qaeda. Michael Kortan, an F.B.I.
spokesman, declined to comment on the Kahtani case, other than to request that
the agent's identity be withheld from publication to ensure his safety.

Over a series of interrogations that extended into the fall of 2002, the agent
slowly built a rapport with Mr. Kahtani, approaching him with respect and
restraint, officials said. "He prays with them, he has tea with them, and it
works," a senior official said, speaking generally of the agent's approach to
terrorist suspects.

Mr. Kahtani began to open up, officials said. He disclosed that he attended an
important Qaeda planning meeting with two of the Sept. 11 hijackers in Malaysia,
in January 2000. Mr. Kahtani also said he had a relative he thought might be
living near Chicago.

The relative, Ali Saleh Kahlah al-Marri, is believed by officials to have been
planted in the United States as a Qaeda "sleeper" agent. He was taken into
custody as a material witness shortly after arriving in the country on Sept. 10,
2001, and was later confined to a Naval brig in Charleston, S.C., with two
American citizens charged as "enemy combatants," Jose Padilla and Yaser Hamdi.

One official said that Mr. Kahtani had admitted that he had intended to join the
hijackers but that he had given up little or nothing about other Qaeda plans. To
some F.B.I. experts, officials said, his ignorance seemed credible: he had been
recruited to be what the plotters called a "muscle" hijacker, someone to subdue
passengers rather than pilot a plane. Officials said such lower-level operatives
were generally only minimally informed even as to the details of attacks in
which they would take part.

But military intelligence officials were skeptical, believing that new
approaches to Mr. Kahtani might well reveal plans for attacks that were to
follow the hijackings or that might have involved Mr. Marri. In late November
2002, Pentagon officials informed the F.B.I. that they would take over
interrogations of Mr. Kahtani, an official said.

A list of 17 new interrogation techniques -- the first such addition since the
Army field manual was issued in 1987 -- was approved by Mr. Rumsfeld in early
December. Ten of the techniques were used on Mr. Kahtani before complaints from
some military officials prompted Mr. Rumsfeld to retract his approval for the
more extreme methods, military officials said.

Military officials refused to say which techniques had been used on Mr. Kahtani,
but the list, contained in a memo dated Jan. 8, 2003, included hooding prisoners
during questioning, placing them in "stress positions" like standing or
squatting for up to four hours, aggravating phobias like fear of dogs, and "mild
noninjurious physical contact," officials familiar with the memo said. Another
detainee was also subjected to methods from the same list, they said.

General Hill, the Southern Command chief, said the tougher techniques used on a
detainee he would not identify -- but who was identified by others as Mr.
Kahtani -- "were successful." Last month, a senior Bush administration official
told The Times that Mr. Kahtani had provided information to interrogators "about
a planned attack and about financial networks to fund terrorist operations." But
several other officials disputed that characterization, saying he had not given
any new information about plots by Al Qaeda.

Carrot and Stick

Hard Treatment and Favored Treatment

As the Pentagon built a more permanent prison at Guantanamo, fashioning cell
blocks from double-wide trailers, the intelligence-gathering effort changed
under Maj. Gen. Geoffrey D. Miller, who took over in November 2002.

Military police and intelligence units that had often been rivalrous were fused
into a single task force. Interrogators, linguists and analysts were divided
into "tiger teams" to interview detainees. Guards were encouraged to observe the
prisoners closely, trying to detect the leaders among them so they could be
isolated or marked for interrogation. Pentagon officials say the changes
produced more intelligence.

Foreign intelligence and law-enforcement agencies were brought in to interview
some detainees who refused to talk to American interrogators. Since early last
year, intelligence gathered at Guantanamo has been entered into a new database
shared by 42 government agencies worldwide.

Questions about the treatment of prisoners linger. Several detainees who have
been released said coercive interrogation methods used at Guantanamo had
constituted abuse, charges American officials have denied. Among the allegations
are complaints of druggings, invasive body searches, sleep deprivation and other
mistreatment.

Parkhudin, a 26-year-old Afghan farmer who was held at Guantanamo from February
2003 to March 2004, said in an interview in Khost that he had been questioned
for up to 20 hours at a time under uncomfortable conditions at Guantanamo. He
said he had been shackled with a small chain during questioning. "They made me
stand in front of an air-conditioner," he said. "The wind was very cold."

In a visit to Guantanamo this week, several military officers disputed accounts
of harsh treatment and said the most useful interrogation tool was a reward
system put into effect in 2003, in which more cooperative detainees were
accorded privileges like more comfortable quarters or occasional ocean swims.

The most cooperative detainees are moved to "Camp 4," a medium-security facility
where they are permitted to wear white uniforms, rather than the standard prison
orange. In Camp 4, cells hold 10 prisoners each, and the detainees can spend up
to nine hours a day outside their cells. They can also play soccer, eat meals
outside and watch "family oriented" films in their native language. Last week, a
half dozen Camp 4 detainees went on a field trip -- to the beach.

"We try to keep people hopeful," said Col. Nelson J. Cannon, the commander of
the joint detention operation at the base. "Camp 4 is the place they aspire to
get to."

In interviews, Mr. Rodriguez, the head of Guantanamo's intelligence-gathering
effort, and two interrogators said valuable information continued to be
produced. "We've had new openings just in recent weeks," Mr. Rodriguez said.
"After two years, my team still has fresh fields to plow."

One morning last week, a reporter was allowed to observe -- but not listen to --
two interrogations at Guantanamo from behind one-way glass. In one room, an
elderly detainee with a long white beard played chess with his interrogator. The
chess game was a "reward" for 90 minutes of "fruitful" discussion, an
interrogator said. In another room, a detainee in his late 30's wearing an
orange jump suit looked despondent as his interrogator spoke calmly to him
through an interpreter. In a period lasting nearly 10 minutes, the detainee
appeared to say nothing.

Intelligence and law-enforcement officials outside the Defense Department
generally agree that the compendium of narrow, personal accounts from detainees
has deepened the intelligence sector's historical understanding of Al Qaeda's
recruitment and training activities. But there are limits to the historical
information.

"It's like going to a prison in upstate to find out what's happening on the
streets of New York," a counterterrorism official with knowledge of Guantanamo
intelligence said. "The guys in there might know some stuff. But they haven't
been part of what's going on for a few years."

Other investigators describe the value of the detainees more narrowly: for
hundreds of intelligence and law enforcement officers now working on terrorism,
stints at the camp have offered a rare chance to study committed Islamic
militants. "We haven't had this broad of access to true believers ever," a
senior counterterrorism official said. "It has taught people how to go face-to-
face with them. If we see can them as they see themselves, it makes us
stronger."

As public criticism of Guantanamo has increased, the Pentagon has intensified
its public-relations campaign on the importance of intelligence from the base.
General Miller, who left Guantanamo in May to take over prison operations in
Iraq, has claimed repeatedly -- although without specifics -- that the quality
of the intelligence gathered from detainees had improved the longer they had
been imprisoned.

Paul Butler, who was the senior Pentagon official for detainee policy until
recently becoming Mr. Rumsfeld's chief of staff, was even more expansive. At a
briefing on Feb. 13, Mr. Butler described the Guantanamo detainees as "very
dangerous people" who included "senior Al Qaeda operatives and leaders and
Taliban leaders." In the most detailed public accounting yet of important
detainees at Guantanamo, he also briefly profiled 10 unidentified Qaeda members
or "affiliated" militants. But several senior officials with detailed knowledge
of the Guantanamo detainees described Mr. Butler's portrait of the camp as a
work of verbal embroidery, saying none of the detainees at the camp could
possibly be called a leader or senior operative of Al Qaeda.

Value of Detainees

Some Challenge Claims of Success

Mr. Rumsfeld has repeatedly cited the importance of Guantanamo to the fight
against terror, saying the detentions there had helped prevent attacks.

"We are keeping them off the street and out of the airlines and out of nuclear
power plants and out of ports across this country and across other countries,"
he said in a speech in February.

In interviews with reporters, officials have repeatedly pointed to two
operations against foreign militants whose success they attributed to
interrogations at Guantanamo. One, they said, involved a plot in which Saudi
militants in Morocco were to attack British and American ships in the Strait of
Gibraltar with small, explosives-laden boats. The other involved breaking up a
terrorist cell in Milan that same year.

A closer look at both, however, indicates that the role the Guantanamo
information played was overstated, as was the nature of the threat the two cases
posed.

According to interviews with European, North African and American officials,
small teams of law-enforcement and intelligence officials from both Italy and
Morocco visited Guantanamo several times in 2002 and 2003 to interview detainees
from those countries.

In the Moroccan case, an important tip came from one of nine Moroccans who were
initially held there. In March 2002, the detainee told a Moroccan interrogator
about a Saudi man who had recruited young men in Morocco on behalf of Al Qaeda
in the late 1990's. The detainee knew the man only by the name "Zuher," an Arab
counterterrorism official said. He also provided the full names of the man's
Moroccan wife and sister-in-law.

Moroccan investigators were able to track down the sister-in-law. She then
pointed the investigators to her brother-in-law, who was living in Morocco.

The authorities quickly began surveillance of the man, whom they identified as
Zuher al-Tbaiti, 35. With the help of Saudi intelligence officials, the
Moroccans learned that Mr. Tbaiti had attended a Qaeda training camp in
Afghanistan in the late 1990's and had been in the Tora Bora area of Afghanistan
in December 2001, during the United States bombing campaign to kill Mr. bin
Laden.

The Moroccan authorities arrested Mr. Tbaiti along with two Saudi associates in
June 2002. A Casablanca prosecutor later disclosed that Mr. Tbaiti and his two
associates had intended to load a small boat with explosives to attack an
American or British warship in a plot modeled after the attack that killed 17
American sailors aboard the American destroyer Cole in October 2000.

Both American and Moroccan officials have at times suggested that the plot was
thwarted in its final stages. In recent interviews, however, counterterrorism
officials from both countries acknowledged that the Saudis and their Moroccan
associates were in the earliest planning stages when they were arrested.

"I don't believe the attacks were anything more than an idea," a senior American
official said. "They were far from pulling it off."

What Moroccan investigators did not learn from Guantanamo -- or were not
particularly interested in -- is also revealing.

By the time Moroccan investigators made a second trip to Guantanamo in September
2002, the number of Moroccan prisoners had grown to 18 from 9. Nearly all of
them had trained with Al Qaeda in Afghanistan, but investigators said only five
had any useful information -- and that was about recruitment and links between
other Moroccan extremists and Al Qaeda. One official also said a lead developed
during the trip had been given to British officials, which helped bring about
the arrests of several men in possession of the toxic agent ricin in a north
London apartment in January 2003.

That same month, the Moroccans traveled again to Guantanamo for a new round of
interrogations. This time, however, the detainees not only refused to cooperate
but also began lying about their activities.

"By then they were discouraged and cynical and realized they were not getting
out any time soon," an official with knowledge of the interviews said.

As with the Moroccan case, the episode in Milan involved the authorities who
were already well into their investigations. American officials have pointed to
it as a trophy of the intelligence effort at Guantanamo, but other senior
officials say the information developed there had a limited impact on
counterterrorism investigations in Italy.

Italian investigators first traveled to the camp in July 2002 to try to learn
more about a militant cell in Milan. The cell's suspected leader, Yassine
Chekkouri, had been under arrest in Italy for more than six months on charges of
possession of explosives and chemical weapons. After they arrived in Guantanamo,
the investigators discovered that Mr. Chekkouri's brothers, Redouan and Younes,
were being held there. Ultimately, however, the two detainees were not helpful
with the case, the officials said.

The Italian investigators did have some other useful conversations at
Guantanamo, officials said, speaking to about 10 other detainees -- Tunisians,
Moroccans, an Egyptian -- who had passed through Italy at various times and
offered some background information about some of the dozen Islamic militants
who had been arrested in the Milan investigation over the course of 2001. They
also provided some information on the reputed head of Al Qaeda's operations in
Italy, Essid Sami Ben Kehmais, a Tunisian convicted last year.

None of the information led to new suspects, however, or prevented any attacks,
officials said.

One European official familiar said the Guantanamo interrogations "confirmed a
lot of things" that had already been under investigation. But an American
investigator familiar with the case was even less generous.

"It was part of the overall picture, but there was other evidence, I think, that
helped," the official said. "This was also a logistical cell, not an operational
cell."

Releases

Hopes for Spies Vs. Returned Foes

Government officials initially hoped to do more at Guantanamo than extract
information from detainees they had captured; they hoped they might be able to
turn some of them into intelligence "assets" in their fight against terrorism.

According to several officials, the C.I.A. has carried out an active effort to
recruit some of the detainees as spies for the agency, offering to help them get
out of Guantanamo and resettle in their home countries in return for information
about militant activities.

The success of those efforts is unknown; Bill Harlow, the C.I.A. spokesman,
declined to comment on the matter. What is more certain, though, is that
American officials have freed at least a handful of captives who turned out to
be dangerous -- another indication of how difficult it has been for officials to
get a firm assessment of just who they have imprisoned at Guantanamo.

"Let me put it this way," Mr. Rumsfeld said at a Pentagon briefing on March 9.
"I've been told by senior people in this department that of the people that have
been released, we know of at least one who has gone back to being a terrorist."

Pressed for details, Mr. Rumsfeld said, "I can't give you any more information
because I don't -- I've forgotten."

Military and police officials in southern Afghanistan were more forthcoming.

In interviews, the officials said at least five prisoners released from
Guantanamo since early 2003 had rejoined the Taliban and resumed attacks on
American and Afghan government forces. Although two American officials said only
one of the former detainees had turned out to be an important figure, Afghan
officials said all five men were in fact commanders with close contacts to the
Taliban leadership.

"They are fighting again and killing people," said Khan Muhammad, the senior
military commander in southern Afghanistan.

The most notorious of the former Guantanamo detainees, Mullah Shahzada, had been
a lieutenant to a senior commander when he was first captured in the war, an
American military intelligence official said. After his return to Afghanistan in
March 2003, he emerged as a frontline Taliban commander, Afghan officials said,
leading a series of attacks in which at least 13 people were killed, including 2
aid workers.

Senior Pentagon officials refused to explain how Mr. Shahzada had talked his way
out of Guantanamo. But two other military officials with knowledge of the case
said he had given a false name and portrayed himself as having been captured by
mistake.

"He stuck to his story and was fairly calm about the whole thing," a military
intelligence official said. "He maintained over a period time that he was
nothing but an innocent rug merchant who just got snatched up."

Other detainees who are known to have been released and then taken up arms are
Mullah Shakur and two men known only as Sabitullah and Rahmatullah. A senior
security official, Abdullah Laghmani, described all five men as commanders with
close ties to the outlawed Taliban leadership.

Afghan officials blamed the United States for the return of the five men to the
Taliban's ranks, saying neither American military officials nor the Kabul
police, who briefly process the detainees when they are sent home, consult them
about the detainees they free.

"There are lots of people who were innocent, and they are capturing them, just
on anyone's information," said Dr. Laghmani, the chief of the National Security
Directorate in Kandahar. "And then they are releasing guilty people."

Tim Golden reported from New York and Washington for this article, and Don Van
Natta Jr. from Guantanamo Bay. Reporting was contributed by Carlotta Gall, David
Rohde, Lizette Alvarez, Clifford Krauss, Raymond Bonner and Jason Horowitz.

* * *


June 17, 2004

RUMSFELD ISSUED AN ORDER TO HIDE DETAINEE IN IRAQ

By Eric Schmitt and Thom Shanker

http://www.nytimes.com/2004/06/17/politics/17abuse.html

WASHINGTON, June 16 - Defense Secretary Donald H. Rumsfeld, acting at the
request of George J. Tenet, the director of central intelligence, ordered
military officials in Iraq last November to hold a man suspected of being a
senior Iraqi terrorist at a high-level detention center there but not list him
on the prison's rolls, senior Pentagon and intelligence officials said
Wednesday.

This prisoner and other "ghost detainees" were hidden largely to prevent the
International Committee of the Red Cross from monitoring their treatment, and to
avoid disclosing their location to an enemy, officials said.

Maj. Gen. Antonio M. Taguba, the Army officer who in February investigated
abuses at the Abu Ghraib prison, criticized the practice of allowing ghost
detainees there and at other detention centers as "deceptive, contrary to Army
doctrine, and in violation of international law."

This prisoner, who has not been named, is believed to be the first to have been
kept off the books at the orders of Mr. Rumsfeld and Mr. Tenet. He was not held
at Abu Ghraib, but at another prison, Camp Cropper, on the outskirts of Baghdad
International Airport, officials said.

Pentagon and intelligence officials said the decision to hold the detainee
without registering him - at least initially - was in keeping with the
administration's legal opinion about the status of those viewed as an active
threat in wartime.

Seven months later, however, the detainee - a reputed senior officer of Ansar
al-Islam, a group the United States has linked to Al Qaeda and blames for some
attacks in Iraq - is still languishing at the prison but has only been
questioned once while in detention, in what government officials acknowledged
was an extraordinary lapse.

"Once he was placed in military custody, people lost track of him," a senior
intelligence official conceded Wednesday night. "The normal review processes
that would keep track of him didn't."

The detainee was described by the official as someone "who was actively planning
operations specifically targeting U.S. forces and interests both inside and
outside of Iraq."

But once he was placed into custody at Camp Cropper, where about 100 detainees
deemed to have the highest intelligence value are held, he received only one
cursory arrival interrogation from military officers and was never again
questioned by any other military or intelligence officers, according to Pentagon
and intelligence officials.

The Pentagon's chief spokesman, Lawrence Di Rita, said Wednesday that officials
at Camp Cropper questioned their superiors several times in recent months about
what to do with the suspect.

But only in the last two weeks has Mr. Rumsfeld's top aide for intelligence
policy, Stephen A. Cambone, called C.I.A. senior officials to request that the
agency deal with the suspect or else have him go into the prison's regular
reporting system.

Mr. Di Rita referred questions about the prisoner's fate to the C.I.A.

A senior intelligence official said late Wednesday that "the matter is currently
under discussion."

In July 2003, the man suspected of being an Ansar al-Islam official was captured
in Iraq and turned over to C.I.A. officials, who took him to an undisclosed
location outside of Iraq for interrogation. By that fall, however, a C.I.A.
legal analysis determined that because the detainee was deemed to be an Iraqi
unlawful combatant - outside the protections of the Geneva Conventions - he
should be transferred back to Iraq.

Mr. Tenet made his request to Mr. Rumsfeld - that the suspect be held but not
listed - in October. The request was passed down the chain of command: to Gen.
Richard B. Myers, chairman of the Joint Chiefs of Staff, then to Gen. John P.
Abizaid, the commander of American forces in the Middle East, and finally to Lt.
Gen. Ricardo S. Sanchez, the ground commander in Iraq. At each stage, lawyers
reviewed the request and their bosses approved it.

A senior intelligence official said late Wednesday that the C.I.A. inquired
about the detainee's status in January, but was told that American jailers in
Iraq could not find him, perhaps as a result of the chaos and confusion of the
November and December spike in insurgent violence.

The detention was first reported in this week's U.S. News & World Report. But
the role played by senior officials in deciding the detainee's status was not
known publicly before Wednesday. Pentagon and intelligence officials gave new
details on Wednesday about the prisoner and the circumstances that brought him
to Camp Cropper, including the fact that his status was decided by Mr. Tenet and
Mr. Rumsfeld, and approved by senior officers.

While acknowledging mistakes in the prisoner's detention, the senior
intelligence official said the detainee posed a significant threat to American
forces in Iraq and elsewhere. "He also possessed significant information about
Ansar al Islam's leadership structure, training and locations," the official
said.

At Camp Cropper, some prisoners had been held since June 2003 for nearly 23
hours a day in solitary confinement in small cells without sunlight, according
to a report by the international Red Cross.

The suspected Ansar official was segregated from the other detainees and was not
listed on the rolls. Under the order that had filtered down to General Sanchez,
military police were not to disclose the detainee's whereabouts to the Red Cross
pending further directives.

The prisoner fell into legal limbo as the military police pressed their
superiors for guidance, which has still not formally come.

"Over the course of the next several weeks, the custodians at the prison asked
for additional guidance, but there were no interrogations," Mr. Di Rita said.

Before this case surfaced, the C.I.A. has said it had discontinued the ghost
detainee practice, but said that the Geneva Conventions allowed a delay in the
identification of prisoners to avoid disclosing their whereabouts to an enemy.

In Washington, the Army announced that Gen. Paul J. Kern, the head of the Army
Materiel Command, would oversee an Army inquiry into the role military
intelligence soldiers played in the abuses at Abu Ghraib. General Kern replaces
General Sanchez as the senior officer reviewing the findings. General Sanchez
removed himself from that role so he could be interviewed by investigators.

* * *


The New York Times Magazine:

June 13, 2004

COMMANDER SWIFT OBJECTS

By Jonathan Mahler

http://www.nytimes.com/2004/06/13/magazine/13MILITARY.html

Lt. Cmdr. Charles Swift received his first lesson in the misuse of power in
1980, when he was a plebe at the United States Naval Academy in Annapolis, Md.
Subjected to one indignation after another at the hands of upperclassmen, he
came to realize that those who meted out the most vicious abuse were often the
ones who had, in their day, been singled out themselves for especially harsh
treatment. "For them, the system was about getting even -- 'I can't punish the
ones who did this to me, but I can punish you' -- and that bothered me,"

Swift says. "I vowed that I would never do it to anyone else, and when I was an
upperclassman, I tried to stop it."

Stocky, boyish-looking and garrulous, with a ruddy face, green eyes and an
overgrown crew cut, Swift is a lot easier to picture drinking out of a pineapple
in a tiki bar than standing up to the class bully at Annapolis. And, in fact, he
was hardly a model military student: he struggled through the academy and was
nearly kicked out several times for drunken and disorderly conduct. By the time
he graduated, though, the Navy had managed to straighten him out, even if it had
not rid him of his anti-establishment leanings. On the contrary, he says, the
academy "channeled my rebelliousness by teaching me to believe in systems." He
went on to become a defense attorney in the military's court-martial system.

On a recent warm, breezy evening in Crystal City, Va., not far from the
Pentagon, Swift sat on a bench in a wrinkled blue Oxford shirt, chinos and deck
shoes and marveled at the improbable and vertiginous role in which he now finds
himself. A little more than a year ago, the Department of Defense named him as
one of five judge advocate generals, or JAG's, assigned to represent "enemy
combatants" in what would be America's first military tribunals in more than 50
years. "Once I got over the 'Wow, they picked me,' the scale was the scariest
part -- the whole world would be watching," he said. "It was so much bigger than
anything I'd done before."

That is an understatement. Until this assignment, Swift's clients consisted
mostly of fellow servicemen accused of crimes like drug use and sexual
harassment. He is currently defending a Yemeni man who worked as Osama bin
Laden's driver in Afghanistan.

Swift has what is perhaps the most controversial job in one of the most
controversial aspects of the war on terror. When President Bush issued the
military order authorizing the use of tribunals to try non-American enemy
combatants shortly after Sept. 11, critics wasted no time in denouncing them as
kangaroo courts. Bush's order, after all, had bypassed Congress -- the body
empowered by the Constitution to convene military tribunals -- and had exempted
the tribunals from federal judicial review or any other civilian oversight.
Furthermore, even after the war in Afghanistan, no trial dates or charges had
been announced, and the presumed defendants were being held indefinitely at the
United States naval base at Guantanamo Bay. Military defense attorneys like
Swift seemed to have the deck stacked against them -- and that is assuming that
their superiors did not expect them to throw the game altogether.

But Swift has been energetic in his defense, to say the least. In January, he
and his colleagues filed an incendiary friend-of-the-court brief with the
Supreme Court in which, among other things, they compared their commander in
chief, President Bush, to the villain of the American Revolution, King George
III. In April, Swift went even further, suing Defense Secretary Donald Rumsfeld
and Bush in federal court in Seattle on the grounds that their plan for a
military tribunal for his client -- who has still not been charged or given a
trial date -- violates the Constitution, federal law, the Geneva Conventions and
the Uniform Code of Military Justice.

When Swift was first assigned to the defense team a little more than a year ago,
not even someone who calls himself "pretty anti-authoritarian for a military
guy" could have imagined this turn of events. "Generally speaking," he said, "if
the United States is paying your salary, you're not supposed to sue them."

Not long before I first called Swift, one of his friends told me that I might
want to consider a new cellphone plan: Swift never stops talking. A natural
trial lawyer who speaks with the sort of casual discursiveness ideally suited to
putting people in a jury box at ease, he discovered his calling while working as
a navigator on a Navy frigate in 1987. One night, when his ship was docked in
Malaysia, a number of his fellow seamen went out on the town and were caught
smoking marijuana, and it fell to Swift to negotiate their release. By sunrise
the next morning, he had sprung two of the men and got a third moved out of the
prison's basement. "At that point," he says, "I decided on a career change." He
attended Seattle University School of Law and graduated with no intention of
returning to the Navy. But a potential job offer fell through, and after being
rejected by the Coast Guard's legal department, he signed up with the Navy Judge
Advocate General's Corps for what he figured would be three years or so.

Nearly a decade later, Swift was still in the service when, in March 2003, he
received an e-mail message from Col. Will Gunn, chief defense counsel for the
military tribunals, asking him to drop everything and move from his station in
Florida to Washington. Swift promptly drove up the coast in his silver Honda
convertible to report for duty. He was joined by three other men who had been
detailed to the defense team: Navy Lt. Cmdr. Philip Sundel and two Air Force
JAG's. Sundel had worked up the first indictment in the United Nation's
International Criminal Tribunal for Rwanda. "I felt like the least qualified guy
in the room," Swift says. "I was like, What am I doing here?"

By noon that day, all four lawyers were sent home to await further instructions.
After two weeks of silence, Gunn finally called Swift again and told him to come
back. When he did, he learned that their team of four had been reduced to just
Swift and Sundel. As it turned out, the general counsel to the Defense
Department vetoed the two Air Force JAG's. For Swift and Sundel, it was their
first glimpse of the highly politicized process they were about to wade into,
not to mention the all-powerful role the administration would play in it. Not
only would the Defense Department be writing the rules and running the
prosecutions; it was vetting the defense attorneys.

During their first few weeks on the job, Swift and Sundel were left more or less
alone. With no clients, no regular contact with their superiors and no clear
instructions from above, they set about educating themselves. There was a lot to
learn. "I had done some international law and I had some idea of the Geneva
Conventions," Sundel says, "but this was an entirely new system. At most it's
similar to something we did 50 years ago, and it's not really all that similar
to that." Taking over a large, empty office in the basement of the Pentagon, he
and Swift boned up on the Geneva Conventions and the laws of war, combed through
law-review articles and studied the important tribunal precedents, which
stretched back to 1780 when George Washington ordered the trial by military
tribunal of a British officer who had been captured with the defense plans for
West Point.

An optimist by nature, Swift was inclined to believe that the post-9/11
military-tribunal process would be fair. But over the course of the spring last
year, as the Defense Department continued to define the workings of the military
tribunals, his hopefulness began to fade. He learned that under the emerging
system, his client, should he be assigned one, would not necessarily be able to
see the evidence against him. Hearsay would be permitted, and there would be no
appeals process beyond a four-member review panel handpicked by the secretary of
defense. What is more, the Defense Department (in effect, the prosecution) was
not only defining the crimes worthy of trial by military tribunal but also doing
so only after hundreds of suspects were already in custody and had been
repeatedly interrogated. In theory, crimes could be retrofitted to suit the
testimony of prisoners.

"It was like a Monty Python movie," Swift says. "The government had this
wonderful suit of armor, a lance and a sword. And I had been given a sharp
stick."

Swift's only source of consolation was his growing sense that the tribunals
would never take place. "When we initially started, we thought these things were
starting within weeks," he says. "But we got skeptical when we were sent home
that first day. When we were called back, expectations were completely
different. We were thinking, Well, I guess we're here to put a good face on
this." On July 3, 2003, the Defense Department announced that Bush had
designated six detainees as eligible for military tribunals, but after a fresh
outcry among critics -- particularly in England, since two of the six detainees
were British -- the tribunals remained stalled: none of the men were formally
charged, assigned to specific attorneys or given trial dates. Four months into
the assignment, Swift and Sundel still had no clients.

Several officials at the Defense Department began to wonder if the department
had been premature in bringing defense counsel aboard. Though it was important
to signal that America intended to provide enemy combatants with adequate legal
representation, there was a danger in having defense counsel with too much idle
time on its hands. "Defense lawyers sometimes become accustomed to the fact that
their clients' interests are adverse to the government's interest," says Lt.
Col. William Lietzau, the principal architect of the tribunals. "The danger is
that they will forget that the job is really to help their client and not
necessarily simply to hurt the government."

The Defense Department tried to keep Swift and Sundel busy by asking them to
help shape the tribunal process, but the two men expressed concern about
compromising their independence. "We felt like we were being asked to build a
better mousetrap for our eventual clients," Swift says. The department justified
the requests by arguing that until they had clients, the JAG's were "staff
attorneys," not defense lawyers. The JAG's insisted that they had been hired as
defense counsel, a distinction that soon became a bone of contention. After a
conference at Harvard at which Swift described himself as "defense counsel for
the military commissions," Col. Fred Borch, who succeeded Lietzau, fired off a
memo to Gunn. "Quite honestly," it read, "Lt. Cmdr. Swift's description of his
job title is not only wrong, but it seems calculated to be provocative if not
offensive." Meanwhile, Sundel was sending off heated memos of his own to the
department, drawing attention to aspects of the process he considered unfair.

These outbreaks of defiance, however, were happening behind the scenes. Beyond
the walls of the Defense Department, the assumption was, as Swift puts it, that
"we were going to roll over and have our bellies scratched." The public face of
the military defense team, Gunn, did little more than try to assure the public
that when the time came, his men would provide a vigorous defense. Swift and
Sundel pushed him to be more aggressive in his critiques of the tribunals, but
Gunn told them that his comments had to be cleared by the chain of command. As
the months passed, Swift and Sundel grew increasingly frustrated and spoke
frequently to each other about whether they should ask to be reassigned.

It was a lonely summer for Swift. He and his wife, a commercial pilot in
training, had been in the process of moving from Florida to Delaware when he was
detailed to the defense team. She had already lined up an internship with an
airline company and went ahead to Delaware without him. Swift moved into the
basement of his grandmother's house in Falls Church, Va. He spent many of his
evenings in a canoe, paddling around a small lake beside the house, feeling as
he did during a trial when the prosecution was giving its closing argument and
he couldn't wait for the chance to poke holes in it. "But I wasn't sure I was
going to get that chance," he says. "And if I get it, will I really want it?
Everyone wants to believe the trials are fair, and I'll have to explain to the
commission panel that they're not. Will anyone listen?"

Last fall, Swift and Sundel finally had an opportunity to be heard, thanks in
large part to the encouragement of a 34-year-old Georgetown law professor named
Neal Katyal. Not long after Bush authorized the use of military tribunals,
Katyal had written, with the Harvard Law professor Laurence Tribe, a forceful
article in The Yale Law Journal assailing the constitutionality of the tribunals
on the grounds that the president had failed to seek proper Congressional
approval for them. Swift and Sundel were impressed by the argument, and when
Katyal called Gunn soon after the formation of the defense team to volunteer his
pro bono counsel, they were thrilled to accept his offer.

In their very first meeting, Katyal told the JAG's that their only real shot at
justice for their eventual clients would come via appeal to the federal courts.
And so they closely followed the fate of Fawzi al Odah, a 25-year-old Kuwaiti
captured in Afghanistan and taken to Guantanamo Bay in the wake of Sept. 11. Al
Odah's father had hired a white-shoe New York law firm to help his son and 11
other Kuwaiti detainees fight for habeas corpus review in American courts. In
July 2003, the United States Court of Appeals for the District of Columbia
Circuit upheld a lower court's ruling against al Odah, asserting that federal
courts lack jurisdiction over the military detention of foreigners held outside
the United States. The case appeared to be dead.

Then, on Nov. 10, 2003, the Supreme Court decided to hear al Odah, combining it
with a similar suit filed by civilian lawyers on behalf of two Britons and two
Australians. That night, Katyal stayed up late studying the petitions filed by
the administration and the civilian lawyers for the detainees. Both sides seemed
to him to have it wrong. A few days later, Katyal made a formal presentation to
Swift, Sundel and Gunn (as well as three other JAG's who had recently been hired
to fill out the defense team), exhorting them to file a friend-of-the-court
brief with the Supreme Court.

Katyal began by assuring the group that he was a defender of broad presidential
power when it comes to keeping the nation safe -- he had even supported the
Patriot Act -- but that meting out justice was another matter. He explained that
the military defense counsel had no true allies on either side of the Supreme
Court case and urged them to stake out the middle ground. Unlike the civilian
attorneys, the JAG's would argue that as commander in chief the president should
have the authority to detain enemy combatants when he is waging war; but unlike
the administration, they would contend that as soon as the president sets out to
evaluate their guilt or innocence, his decisions must be subject to review by
the courts.

"God, was it thrilling," Swift recalls. "Neal presented to us like we were the
attorney general."

The JAG's decided to go ahead with the brief, and Katyal divvied up the tasks.
Sundel developed the argument that the Constitution vests in Congress -- not the
president -- the power to define war crimes, and that it had done so in 1996
when it passed the War Crimes Act. Swift covered his walls with diagrams of the
Supreme Court's six previous rulings on military tribunals, building the case
that the court never intended to slam the door on review by federal courts.
Every couple of days, they would meet to talk about their arguments. "It was
like law school," Swift says. "We'd all tromp over to Neal's office or to a
coffee shop in Georgetown in blue jeans."

Swift and his colleagues had composed a letter of approval for the brief to the
Defense Department, but it remained unclear whether the government would permit
them to file. On Dec. 1, six weeks before briefs were due, the lawyers received
a lengthy response from Paul Koffsky, a deputy general counsel for the Defense
Department, but it wasn't the one they were looking for. "We needed an answer,
and what we got was more questions," Sundel says. "And many of them seemed to
either be somewhat irrelevant questions or questions that we had already
answered in our memo." By the end of the month, however, the lawyers heard from
Koffsky again. Something had changed: they were now free to file. (Several
people inside the Defense Department told me that the department's general
counsel, William Haynes, brought the request to Alberto Gonzales, the White
House counsel, who ordered him to give the JAG's the green light.)

On Jan. 14, Katyal and the five military lawyers filed the brief. Ranging across
more than 200 years of American history, it opened with a quotation from the
Declaration of Independence in which the framers enumerated their charges
against King George III -- charges that included elevating the military above
the civil power, trumping up offenses and depriving colonists of the right to a
trial by jury. "Those charges," the brief stated, "describe the United States'
legal position in this case."

The Defense Department denied a request by the JAG's to hold a news conference,
but they were allowed to speak with reporters individually. Word quickly spread;
five military officers serving up a stinging rebuke to their commander in chief
made for irresistible copy. The Defense Department tried shrugging it off,
telling reporters that it had always expected the JAG's to defend their clients
vigorously. But according to sources in Defense who are involved in the military
tribunal process, officials inside the White House and the Pentagon were
stunned. Whatever the Bush administration may have had in mind for prisoners in
the war on terrorism, this was definitely not part of the program.

Since then, a couple of the other military defense attorneys have become
familiar faces in the media. One of them, Michael Mori, a lanky, restless Marine
major with a large pinch of Skoal forever lodged beneath his lower lip, has been
particularly outspoken in his criticisms of the tribunals. In late November
2003, Mori became the first of the five judge advocates assigned to a client at
Guantanamo Bay: David Hicks, a former ranch hand and convert to Islam from
Australia. On June 1, the Australian government announced that the United States
was expected to charge his client by the end of this month, with a tribunal to
follow sometime in August (though critics remain skeptical).

To Swift's mind, it was the brief that changed everything. "Once we were out
there, the glass ceiling was busted," he says. "People knew we existed, and
people knew we didn't agree with the way the system was being set up, that we
were going to fight it."

Of the last 15 cases Swift tried before joining the military tribunals, he lost
only 3, and in 2 of them the evidence against his client included positive
urinalysis tests. "The only thing that distinguishes me as a lawyer," he says in
his typical aw-shucks manner, "is that I rarely, if ever, lose."

The military-justice system plays to Swift's strengths as an attorney. He
prefers to spend a lot of time with his clients, and unlike overworked public
defenders, military defense lawyers usually have that luxury. "My job is to tell
my client's story, and to do that I really have to get to know them," he says.

By the time he and his fellow JAG's started work on the amicus brief, though,
Swift had been without a defendant for nine months, and his job was beginning to
feel oppressively theoretical. By the middle of December, when he was summoned
to Gunn's office and told that his cause finally had a name and a face, Swift
needed a client almost as much as his client needed a lawyer.

The client was Salim Ahmed Hamdan, a 34-year-old Yemeni who had worked as a
driver on Osama bin Laden's property in Afghanistan. According to Swift, Hamdan
originally went to Afghanistan to get to Tajikistan, where he planned on
fighting the government on behalf of Muslims. After Sept. 11, he fled to
Pakistan with his pregnant wife and daughter. Upon his return, he was arrested
and turned over to United States forces.

For many Americans, that story would be enough to make Hamdan guilty by
association. To Swift, however, Hamdan sounded surprisingly benign. "I had
expected that if we were going to use these tribunals, we were going to start
with some very hard-core Al Qaeda members," he says. "Yes, he had driven for bin
Laden, but how did that make him a criminal?" The initial order appointing Swift
to Hamdan made it clear that the government expected Swift to negotiate a guilty
plea. (Drivers have historically made good witnesses, since they are often privy
to juicy back-seat conversations.) But reading through Hamdan's statements to
interrogators -- in which he denied ever having been a member of Al Qaeda --
Swift was already thinking about mounting a real defense.

Swift wanted to get to Guantanamo Bay as soon as possible, but the government
didn't immediately provide him with a translator, and it took Swift five weeks
to find one and to obtain security clearance for him. When he finally made it to
Cuba to meet Hamdan at the end of January, his client had been in solitary
confinement in Camp Echo, a block of eight windowless huts set apart from Camp
Delta, for nearly two months. After apologizing for taking so long to get there,
Swift told Hamdan, "It's you and me against the infinite resources of the
American government." It is the same thing he tells all his clients, only this
time, Swift says, "it had never been so true."

Since that first visit, Swift has spent far more time with Hamdan than with any
previous client and has eked out two small victories on his behalf. Instead of
the 45 minutes or so every other night that Hamdan had been allowed to exercise
outside his 8-by-10-foot cell, he is now allowed 45 minutes every day, and Swift
no longer has to wear a military uniform when he is meeting with him.

Swift has had a much easier time getting close to Hamdan than he anticipated. He
was expecting someone violently anti-American, but from the beginning his client
has been, as he puts it, "gracious and polite." This summer, he is going to
Yemen for several weeks to visit Hamdan's family and interview potential
witnesses. He is already in deep. "I have a tremendous personal investment in
him," Swift told me recently over the phone from Guantanamo Bay. "My paralegal
says, 'What happens if they find him guilty?' And I say, 'It will be a very hard
day."'

It has been a relief for Swift to again have a defendant to represent, but it
has also created new frustrations. In February, in a one-sentence memo with no
explanation for the decision, the Defense Department denied his request to
expedite the trial. Hamdan remains uncharged and in solitary, and Swift remains
unable to tell his client what might be in store for him. "Will there be a
tribunal for Salim Hamdan?" Swift asks. "I don't know. What will the charges be?
I don't know. If he is acquitted, will he be released? I don't know. The answer
to almost every question is I don't know."

In April, in an effort to force some answers, Swift obtained status as Hamdan's
"next friend," a special designation available to those who wish to take legal
action on behalf of someone who can't do so himself. Retaining Katyal as his own
lawyer, he filed the lawsuit in Federal District Court in Seattle against
Rumsfeld and Bush.

In a sense, the suit, which Swift worked on closely with Katyal, was a natural
extension of the Supreme Court brief. If the brief argued that civilian courts
have the jurisdiction to hear a challenge to the tribunals, the suit was itself
that challenge. It begins with a quotation from Alexander Hamilton -- "The
creation of crimes after the commission of the fact . . . and the practice of
arbitrary imprisonments, have been, in all ages, the favorite and most
formidable instruments of tyranny" -- and goes on to request that the court
release Hamdan from solitary and declare the tribunals unconstitutional.

In May, Robert Lasnik, the Federal District Court judge presiding over Swift's
case, granted the government a stay in the proceedings until the end of June,
pending a ruling from the Supreme Court on al Odah v. United States. In an
easily overlooked footnote to his order, however, Lasnik gave Swift and Katyal
cause for optimism by pointing out that the oral arguments in the coming case
will be among the first to be heard in the Federal District Court's new
courthouse. The old courthouse, Lasnik continued, was the setting for several
trumped-up cases brought against Japanese-Americans in the wake of Pearl Harbor
-- "constant reminders," he wrote, "of how our country and our courts must
always remain true to the core principles embodied in our United States
Constitution, even in the aftermath of devastating attacks on our people and
even in times of war."

Sometime before the end of this month, the Supreme Court is expected to hand
down its decision in al Odah. It is considered very unlikely that a majority of
justices will accept the broad argument put forward by the civilian attorneys
that Guantanamo Bay should be considered part of the United States and that
detainees should thus be entitled to full habeas corpus rights.

That leaves two more probable alternatives. The court could either side with the
administration and recognize the exclusive right of the commander in chief to
call the shots during times of war. Or it could recognize the view advanced by
the JAG's -- that when it comes to adjudicating matters of guilt and innocence,
the military must not operate on its terms alone. The latter course would enable
Swift and Katyal's lawsuit against Rumsfeld and the president to move forward.

Yet even if the lawsuit proceeds and Swift and Katyal prevail, it could be years
before the administration exhausts its appeals. In the meantime, the government
has no incentive to bring Hamdan to trial before a military tribunal. In the
unlikely event that it does and Swift manages to win an acquittal, the peculiar
rules of the tribunals still permit the administration to hold him indefinitely
in solitary confinement as an enemy combatant.

"The International Committee for the Red Cross says that one of the great
problems with Guantanamo is its undefined nature," Swift says. "I now appreciate
that. My life is now one of uncertainty. I don't know when this will end. That's
a very disquieting place to be."

[ Jonathan Mahler is a contributing writer for the magazine. His book about New
York and baseball in the 1970's will be published next year. ]

* * *


New York Times --

June 5, 2004

ABUSE INQUIRIES SEEN AS LEAVING SIGNIFICANT GAPS

By Steven Lee Myers and Eric Schmitt

http://www.nytimes.com/2004/06/06/international/middleeast/06ABUS.html

WASHINGTON, June 5 -- Disparate inquiries into abuses of prisoners in Iraq and
Afghanistan have so far left crucial questions of policy and operations
unexamined, according to lawmakers from both parties and outside military
experts, who say that the accountability of senior officers and Pentagon
officials may remain unanswered as a result.

No investigation completely independent of the Pentagon exists to determine what
led to the abuses at Abu Ghraib prison, and so far there has been no groundswell
in Congress or elsewhere to create one.

But on Capitol Hill, even some Republicans have begun to question whether the
Pentagon's inquiries are too narrowly structured to establish the causes of the
abuses, as Defense Secretary Donald H. Rumsfeld and others have pledged to do,
and then to determine if anyone in the chain of command was responsible for
them.

Some House Republicans, bucking their leaders who have said the focus on Abu
Ghraib is distracting from the larger effort in Iraq, have joined Democrats in
urging a more aggressive review of the investigations. In the Senate, members of
both parties said there remained major aspects that fell outside of the scope of
any of the investigations that are now under way -- including the role of
military lawyers in drafting policy on detainees and the involvement of civilian
contractors in their interrogations.

Senator Lindsay O. Graham, Republican of South Carolina, said he was troubled
that the only criminal cases brought so far involved seven low-ranking soldiers
from the 372nd Military Police Company. He said he believed that there was
"command failure at many levels that could be criminally culpable."

Representative Heather Wilson, a New Mexico Republican and former Air Force
officer, was unsparing in her assessment of the House's investigative oversight
role to date: "We should be doing this directly and bluntly, and in the House we
are not. It's been very disappointing to me."

The top military spokesman in Iraq, Brig. Gen. Mark Kimmitt, this week defended
the range and scope of the various military investigations completed and still
under way. "We're going to go wide, we're going to go deep, we're going to look
under every rock and find out just how far this went," he said.

Dozens of criminal investigations into accusations of abuses against prisoners
have yet to be resolved, and some may never be, officials concede. Additional
criminal cases stemming from the abuses at Abu Ghraib appear to have been put on
hold while a separate investigation is completed into the role military
intelligence soldiers may have played there and at other prisons in Iraq -- an
inquiry whose findings have been delayed at least until July.

In addition to the criminal cases, which have included investigations into the
deaths of at least 40 prisoners in Iraq and Afghanistan, the Pentagon has
ordered six inquiries or reviews since a soldier came forward in January with
evidence of the Abu Ghraib abuses. Two have been completed. The others have
narrow focus and limited scope; while in theory they could recommend criminal
charges, that is not their focus.

Mr. Rumsfeld, facing criticism over his leadership and calls from some Democrats
to resign, last month appointed a four-member panel, led by James R.
Schlesinger, a former defense secretary, to assess whether the inquiries are
sufficient. That has led some to push for broader inquiries under various
authorities, possibly a select committee in Congress, a military court of
inquiry, or a panel like the one created to investigate the Sept. 11, 2001,
attacks.

The commission plans to begin interviews on June 14 at the Pentagon and by
teleconference with officers in Iraq. It is building a staff of 25, including
several military lawyers on loan from the Pentagon.

One of its members, Tillie K. Fowler, a former Republican congresswoman from
Florida, said the commission intended to do a wide assessment, and would
probably interview senior military officers, including Lt. Gen. Ricardo S.
Sanchez, the ground commander in Iraq. But she also made it clear that Mr.
Rumsfeld was not a focus.

"The secretary is an honest, decent, honorable man, who'd never condone this
type of activity," she said in a telephone interview, referring to the images of
naked, hooded and shackled prisoners being abused at Abu Ghraib last fall. "This
was not a tone set by the secretary."

Statements like Mrs. Fowler's have prompted some lawmakers and outside legal
experts to question whether the Pentagon can be entrusted to investigate itself
in a scandal that has badly tarnished the military and the United States.

"They have created a patchwork with cracks in it, and a lot will fall through
it," said John D. Hutson, who served as the Navy's judge advocate general from
1997 to 2000 and is now the dean of the Franklin Pierce Law Center in New
Hampshire. "There's no umbrella or overarching investigation that has the power
to go wherever it leads."

Mark L. Waple, a civilian lawyer in North Carolina who represented a soldier
ultimately cleared of any wrongdoing in the deaths of two prisoners in
Afghanistan in 2002, said the Army's criminal investigators were well equipped
to investigate individual crimes but less so to look at systemic problems.

According to documents that included investigative reports on the abuses, agents
from the Army's Criminal Investigation Command focused intensely on securing
known copies of the photographs but were cursory in questioning the role of the
chain of command.

"It's easier for law enforcement to investigate the assault in the prison rather
than the systemic problem of abuse of prisoners," Mr. Waple said.

A variety of military inquiries has tried to address some of these problems. The
first major one, completed in February by Maj. Gen. Antonio M. Taguba, concluded
that military police at the prison had committed "sadistic, blatant and wanton
criminal abuses." A second one, headed by Maj. Gen. George R. Fay, is examining
the role of military intelligence soldiers. After being granted a 30-day
extension, he is now supposed to submit the report in July.

Gen. John P. Abizaid, the commander of American forces in the Middle East,
disclosed last month that a preliminary inquiry by the Army inspector general
found problems with the training, organization and doctrine regarding military
detention centers in Afghanistan and Iraq. But he said the inspector general
found no "pattern of abuse" of prisoners in the central command's area of
responsibility.

However, new figures reported by the Army on Friday showed that the number of
criminal investigations into prisoner abuse in Iraq and Afghanistan had
increased to 85 from 69 a month ago, suggesting more widespread problems.

In the Senate, Democrats and Republicans said they were not ready to accuse the
Pentagon of failing to carry out a vigorous inquiry. At the same time, some said
there were aspects that were not being explored.

Senator Graham said one was whether military lawyers had raised questions about
detainee policies, only to be ignored by the Pentagon's civilian leaders.

Senator Susan M. Collins, Republican of Maine, said "one of the critical
unanswered questions" is at the heart of General Fay's review.

"We really don't have a picture of whether this abuse was the brainchild of a
small number of prison guards or whether it was something created or condoned by
military intelligence officials," she said.

Senator Jack Reed, a Rhode Island Democrat who is on the panel, said: "The real
acid test will be how thorough and comprehensive the Fay report is. If it's just
confined to the four walls of the prison or the instructions given there, it
will create the appearance this is all being slow-walked."

James Ross, the senior legal adviser for Human Rights Watch in New York, said
the progress so far showed that the military did not take allegations of abuses
seriously until the broadcast and publication of the Abu Ghraib photographs at
the end of April forced the issue. He also questioned remarks by President Bush
that could prejudice any investigation of senior officials.

"It's very disconcerting to hear the president say it was just a few bad apples,
which is a conclusion about how high the case goes," Mr. Ross said. "I don't
think we know how high the case goes."

Mr. Hutson, the former Navy judge advocate, said the myriad investigations had
blurred the distinction between criminal cases and institutional or bureaucratic
problems. He said General Taguba's investigation was thorough, but was not
intended to satisfy the requirements for a court-martial.

"I think in a very narrow sense we'll see that justice was done for the seven
low-level soldiers, or whatever number it ends of being," he said. "Whether
justice is done for the more senior people implicated remains to be seen. I
don't hold out great hope that any of these investigations are going to result
in that."

* * *


June 4, 2004

UN SAYS ABU GHRAIB ABUSE COULD CONSTITUTE WAR CRIME

By Warren Hoge

http://www.nytimes.com/2004/06/04/international/middleeast/04CND-NATI.html

UNITED NATIONS, June 4 -- The United Nations' top human rights official said
today that the mistreatment of Iraqi prisoners by American soldiers could
constitute a war crime, and he called for the immediate naming of an
international figure to oversee the situation.

Bertrand Ramcharan, the acting high commissioner for human rights, acknowledged
that the removal of Saddam Hussein represented "a major contribution to human
rights in Iraq" and that the United States had condemned the conduct and pledged
to bring violators to justice.

"Everyone accepts the good intentions of the coalition governments as regards
the behavior of their forces in Iraq," he said in a 45-page report issued at the
agency's headquarters in Geneva.

But, Mr. Ramcharan declared, after the occupation of Iraq, "there have sadly
been some violations of human rights committed by some coalition soldiers."

In an apparent reference to the incidents of abuse at Abu Ghraib prison and to
cases where Iraqi prisoners have died in detention, Mr. Ramcharan said that
"willful killing, torture and inhuman treatment" represented a grave breach of
international law and "might be designated as war crimes by a competent
tribunal."

He said it was a "stark reality" that there was no international oversight or
accountability for the thousands of detainees, the conditions in which they were
held and the manner in which they were treated.

To correct this situation, he said, the coalition authorities should immediately
appoint "an international ombudsman or commissioner." That person would be
charged with monitoring human rights in Iraq and producing periodic reports on
"compliance by coalition forces with international norms of human rights and
humanitarian law."

In its passages about the fall of Saddam Hussein, the report said that the
invasion of Iraq "removed a government that preyed on the Iraqi people and
committed shocking, systematic and criminal violations of human rights." It also
noted approvingly that Iraqis had gained a freedom of expression never enjoyed
during the years of Hussein rule.

Mr. Ramcharan, a British-educated trial lawyer from Guyana and an adjunct
professor of international human rights law at Columbia University, has been a
United Nations official for 30 years. He has been the acting commissioner since
Sergio Vieira de Mello, the high commissioner, went to Baghdad as chief of the
United Nations mission there last May on what was supposed to be a four-month
assignment.

Mr. Vieira de Mello was killed in the bombing of the United Nations' Baghdad
headquarters last August, and Secretary General Kofi Annan subsequently removed
all international staff members from Iraq.

The human rights experts had hoped to go to Baghdad in compiling their report,
but instead ended up interviewing people outside Iraq in regional capitals.

There was no immediate reaction from the United States to the report, but the
White House's top lawyer warned two years ago that American officials could face
prosecution for war crimes because of the unorthodox tactics of detaining
Taliban and Al Qaeda suspects in Afghanistan.

The confidential Jan. 25, 2002, memo, first reported last month by Newsweek
magazine, was written by the White House counsel, Alberto R. Gonzales, and urged
Bush administration officials to declare captives in the war on terror exempt
from the Geneva Convention. It said that otherwise, Americans might be subject
to "unwarranted charges" of committing or fostering war crimes.

Critics have argued that the Bush administration's decision not to grant
suspected Al Qaeda and Taliban fighters prisoner-of-war status under the Geneva
Convention created the climate under which the interrogation abuses at Abu
Ghraib prison occurred.

The report also comes at a moment when the United States has been hoping to
obtain a Security Council resolution shielding American troops serving in United
Nations-approved operations from prosecution before the International Criminal
Court. The multinational force remaining in Iraq after the transfer of power to
Iraq at the end of this month will be such a United Nations-sanctioned force.

Earlier this month, the United States withdrew its bid for the resolution
exempting its soldiers when China indicated that it might veto the motion. In
announcing the diplomatic move, China's United Nations ambassador, Wang Guangya,
said he did not want to support a resolution that might grant immunity to people
committing abuses like those uncovered at Abu Ghraib.

* * *


May 29, 2004

CUBA BASE SENT ITS INTERROGATORS TO IRAQI PRISON
By Douglas Jehl and Andrea Elliott

http://www.nytimes.com/2004/05/29/international/middleeast/29ABUS.html

WASHINGTON, May 28 -- Interrogation experts from the American detention camp at
Guantanamo Bay, Cuba, were sent to Iraq last fall and played a major role in
training American military intelligence teams at Abu Ghraib prison there, senior
military officials said Friday.

The teams from Guantanamo Bay, which had operated there under directives
allowing broad latitude in questioning "enemy combatants," played a central role
at Abu Ghraib through December, the officials said, a time when the worst abuses
of prisoners were taking place. Prisoners captured in Iraq, unlike those sent
from Afghanistan to Guantanamo, were to be protected by the Geneva Conventions.

The teams were sent to Iraq for 90-day tours at the urging of Maj. Gen. Geoffrey
D. Miller, then the head of detention operations at Guantanamo. General Miller
was sent to Iraq last summer to recommend improvements in the intelligence
gathering and detention operations there, a defense official said.

The involvement of the Guantanamo teams has not previously been disclosed, and
military officials said it would be addressed in a major report on suspected
abuses by military intelligence specialists that is being completed by Maj. Gen.
George W. Fay.

The report by General Fay will be the second major chapter in the Army's
examination of the prisoner abuses in Iraq. Military officials said he would
determine whether tactics used by military interrogators at Guantanamo and in
Afghanistan were wrongly applied in Iraq, including at Abu Ghraib.

Over the last month, General Fay and his 29-member team have conducted scores of
interviews in Iraq, Europe and the United States, and the general is now
expected to brief Lt. Gen. Ricardo S. Sanchez, the top American commander in
Iraq, on his findings sometime in the next week, a senior Army official said.

The involvement of the Guantanamo teams in Iraq marks the second major instance
in which interrogation procedures at Abu Ghraib appear to have been modeled on
those in place earlier in Guantanamo or in Afghanistan, at facilities where the
United States had declared that the Geneva Conventions did not apply.

In Iraq, Bush administration officials have insisted that the provisions of the
Geneva Conventions were "fully applicable" to all prisoners, whether they were
prisoners of war or civilians waging an insurgency against the United States.
But since the abuses at Abu Ghraib have become public, some American officers
have acknowledged that there may have been confusion there about whether certain
tactics used on prisoners -- including hooding, chaining, isolation and sleep
deprivation -- required approval from the American command in Baghdad.

Confirming an account from military intelligence soldiers who served in Iraq, a
senior military official in Iraq said Friday that five interrogation teams, or
about 15 interrogators, analysts and other specialists, were sent in October
from Guantanamo Bay to the American command in Iraq "for use in the
interrogation effort" at Abu Ghraib. A defense official in Washington said that
only three teams had been sent, but there was no immediate explanation for the
discrepancy.

General Miller, who is now in command of all detention sites in Iraq, played a
central role in recommending an overhaul of interrogation procedures at Abu
Ghraib, including changes to bring about closer coordination between guards and
interrogators. But the general's report on that issue remains classified, and it
is not clear whether either his report or the Guantanamo teams explicitly
recommended a toughening of interrogation procedures at Abu Ghraib.

To date, there have been no accusations of serious prisoner abuse in connection
with interrogations at Guantanamo. Most of the criticisms have generally focused
on the lack of legal rights and due process and the indefinite nature of the
detentions.

According to a military officer on the Miller delegation to Iraq, interrogation
teams from Guantanamo took part in interrogations at Abu Ghraib and other
prisons in Iraq. The interrogators demonstrated the "tiger team" concept that
was developed at Guantanamo, integrating interrogators with an intelligence
analyst and an interpreter to focus on particular groups of detainees and pieces
of information being sought.

To date, seven enlisted soldiers from a military police unit are the only
Americans charged in connection with abuse at Abu Ghraib, but with the report by
General Fay, the investigation's focus is turning to the role played by
interrogators and other military intelligence soldiers.

The 519th Military Intelligence Battalion, from Fort Bragg, N.C., also played a
major role in setting up the new interrogation unit at Abu Ghraib last fall. In
its ranks was Capt. Carolyn A. Wood, who had led an interrogation team at the
Bagram Collection Point in Afghanistan.

Two Afghan prisoners died in Bagram in December 2002 in what investigators have
ruled were homicides, during the time Captain Wood's unit was in charge of
interrogations. An Ohio-based Army Reserve unit, the 377th Military Police
Company, was guarding Bagram at the time, and Army investigators are now
pursuing what they have said are indications that enlisted soldiers from one or
both units abused the Afghan prisoners before they died.

The 377th is based in Cincinnati, Army officials said Friday. An Army Reserve
spokesman confirmed that among the unit's duties was guarding prisoners at
Bagram Collection Point. In interviews, some members of the unit acknowledged
that they were interviewed by criminal investigators in the last three months,
but said they had no knowledge that the prisoners who died had been abused.

But one member of the 377th Company said the fact that prisoners in Afghanistan
had been labeled as "enemy combatants" not subject to the Geneva Conventions had
contributed to an unhealthy attitude in the detention center.

"We were pretty much told that they were nobodies, that they were just enemy
combatants," he said. "I think that giving them the distinction of soldier would
have changed our attitudes toward them. A lot of it was based on racism, really.
We called them hajis, and that psychology was really important."

At least six members of the 377th Company who were reached by telephone declined
comment on the investigation, saying they had been directed by their commanders
not to talk to the news media about it.

The top American officers in charge of the interrogation effort at Abu Ghraib,
including Brig. Gen. Barbara Fast, General Sanchez's top deputy for
intelligence, have all declined requests for interviews since the scope of the
abuses there became evident. They include Col. Thomas M. Pappas, who commanded
the 205th Intelligence Brigade, and Lt. Col. Steven Jordan, director of the
Joint Interrogation and Debriefing Center at Abu Ghraib, which was established
in September.

Both officers were named in the first major Army report on the abuses, issued by
Maj. Gen. Antonio M. Taguba, as having been either "directly or indirectly
responsible" for the misconduct.

In interviews, two military intelligence soldiers who served at Abu Ghraib as
part of the 205th Brigade described the unit from Guantanamo as having played a
notable role in setting up the interrogation unit in Iraq, which they said was
modeled closely after the one that General Miller put in place in Cuba.

"They were sent to Iraq to set up a Gitmo-style prison at Abu Ghraib," a
military intelligence soldier said of the unit. None of the soldiers knew what
military unit the group from Guantanamo had been drawn from, but one of them
said he understood that it had also served earlier in a detention facility in
Guantanamo.

[ Eric Schmitt and Leslie Wayne contributed reporting for this article. ]

* * *


May 26, 2004

WHO WOULD TRY CIVILIANS OF U.S.? NO ONE IN IRAQ

By Adam Liptak

http://www.nytimes.com/2004/05/26/international/middleeast/26PROS.html

Though civilian translators and interrogators may have participated in the abuse
at Abu Ghraib prison, prosecuting them will present challenges, legal experts
say, because such civilians working for the military are subject to neither
Iraqi nor military justice.

On the basis of a referral from the Pentagon, the Justice Department opened an
investigation on Friday into the conduct of one civilian contractor in Iraq, who
has not been identified.

"We remain committed to taking all appropriate action within our jurisdiction
regarding allegations of mistreatment of Iraqi prisoners," Mark Corallo, a
Justice Department spokesman, said in a statement.

Prosecuting civilian contractors in United States courts would be "fascinating
and enormously complicated," said Deborah N. Pearlstein, director of the U.S.
law and security program of Human Rights First.

It is clear, on the other hand, that neither Iraqi courts nor American courts-
martial are available.

In June 2003, L. Paul Bremer III, the chief American administrator in Iraq,
granted broad immunity to civilian contractors and their employees. They were,
he wrote, generally not subject to criminal and civil actions in the Iraqi legal
system, including arrest and detention.

That immunity is limited to their official acts under their contracts, and it is
unclear whether any abuses alleged can be said to have been such acts. But even
unofficial conduct by contractors in Iraq cannot be prosecuted there, Mr.
Bremer's order said, without his written permission.

Similarly, under a series of Supreme Court decisions, civilians cannot be court-
martialed in the absence of a formal declaration of war. There was no such
declaration in the Iraq war.

In theory, the president could establish new military commissions to try
civilians charged with offenses in Iraq, said Jordan Paust, a law professor at
the University of Houston and a former member of the faculty at the Army's Judge
Advocate General's School. The commissions announced by President Bush in the
wake of the Sept. 11 attacks do not, however, have jurisdiction over American
citizens.

That leaves prosecution in United States courts. There, prosecutors might turn
to two relatively narrow laws, or a broader one, to pursue their cases.

A 1994 law makes torture committed by Americans outside the United States a
crime. The law defines torture as the infliction of severe physical or mental
pain or suffering.

But some human rights groups suspect that the administration may be reluctant to
use the law, because its officials, including Defense Secretary Donald H.
Rumsfeld, have resisted calling the abuse at Abu Ghraib torture.

"If they don't want to use the word 'torture,' " Ms. Pearlstein said,
"prosecutions under the torture act aren't likely."

A 1996 law concerning war crimes allows prosecutions for violations of some
provisions of the Geneva Conventions, including those prohibiting torture,
"outrages upon personal dignity" and "humiliating and degrading treatment."

Bush administration lawyers cited potential prosecutions under the law as a
reason not to give detainees at Guantanamo Bay the protections of the Geneva
Conventions. But the administration has said that the conventions apply to
detainees in Iraq.

Both the torture law and the war-crimes law provide for long prison sentences,
and capital punishment is available in cases involving the victim's death.

The broader law, the Military Extraterritorial Jurisdiction Act, allows people
"employed by or accompanying the armed forces outside the United States" to be
prosecuted in United States courts for federal crimes punishable by more than a
year's imprisonment. People who are citizens or residents of the host nations
are not covered, but Americans and other foreign nationals are.

The law has apparently been invoked only once, in a case involving charges that
the wife of an Air Force staff sergeant murdered him in Turkey last year. The
case will soon be tried in federal court in Los Angeles.

The law was passed to fill a legal gap that had existed since the 1950's, when
Supreme Court decisions limited the military's ability to prosecute civilians in
courts-martial during peacetime.

In 2000, a three-judge panel of the federal appeals court in New York, citing
that gap, reluctantly overturned the conviction of an American civilian who had
sexually abused a child in Germany. In an unusual move, the judges sent their
decision to two Congressional committees. That helped encourage enactment of the
law that year.

The law requires the Pentagon, in consultation with the State and Justice
Departments, to establish regulations on how to carry it out. Though it was
enacted four years ago, the regulations are still under consideration.

In any event, there are gaps and uncertainties in the law.

For one thing, it applies only to contractors employed by the Defense
Department. Contractors hired by other agencies, like the C.I.A., are not
covered.

It is also unclear precisely where in the United States such prosecutions could
be brought. Legal scholars have suggested that three places might be available:
the area of the defendant's last known residence, the place where the defendant
is first brought from abroad and the District of Columbia.

In addition to such criminal charges, the companies that provided the
translators and interrogators may be subject to civil suits for money, under a
1789 law that allows federal courts to hear "any civil action by an alien for a
tort only, committed in violation of the law of nations." Torture is such a
violation, legal experts say.

The Supreme Court is considering a case concerning the scope of that law, which
has been used to hold American companies accountable for abusive actions abroad.

But, in an echo of the defenses offered by several members of the military
police who have been ordered to face courts-martial for actions in Iraq,
companies may be able to offer a "government contractor defense," in an effort
to show they were operating under specific instructions from the government.

* * *


May 23, 2004

US DISPUTED PROTECTED STATUS OF IRAQ INMATES

By Douglas Jehl and Neil A. Lewis

http://www.nytimes.com/2004/05/23/international/middleeast/23IRAQ.html

WASHINGTON, May 22 -- Presented last fall with a detailed catalog of abuses at
Abu Ghraib prison, the American military responded on Dec. 24 with a
confidential letter asserting that many Iraqi prisoners were not entitled to the
full protections of the Geneva Conventions.

The letter emphasized the "military necessity" of isolating some inmates at the
prison for interrogation because of their "significant intelligence value," and
said that prisoners held as security risks could legally be treated differently
from prisoners of war or ordinary criminals.

But the military insisted that there were "clear procedures governing
interrogation to ensure approaches do not amount to inhumane treatment."

In recent public statements, Bush administration officials have said that the
Geneva Conventions were "fully applicable" in Iraq. That has put American-run
prisons in Iraq in a different category from those in Afghanistan and in
Guantanamo Bay, Cuba, where members of Al Qaeda and the Taliban have been
declared unlawful combatants not eligible for protection. However, the Dec. 24
letter appears to undermine administration assertions of the conventions' broad
application in Iraq.

The International Committee of the Red Cross had reported in November that its
staff, in a series of visits to Abu Ghraib in October, had "documented and
witnessed" ill treatment that "included deliberate physical violence" as well as
verbal abuse, forced nudity and prolonged handcuffing in uncomfortable
positions.

In congressional testimony last week, Lt. Gen. Lance Smith, the deputy commander
of American forces in the Middle East, asserted that the Dec. 24 response
demonstrated that the military had fully addressed the Red Cross complaints.

But the three-page response, drafted by American military lawyers, did not
address many of the specific concerns cited by the Red Cross, whose main
recommendations included improving the treatment of prisoners held for
interrogation.

Instead, much of the military's reply is devoted to presenting a legal
justification for the treatment of a broad category of Iraqi prisoners,
including hundreds identified by the United States as "security detainees" in a
cellblock at Abu Ghraib and in another facility known as Camp Cropper on the
outskirts of the Baghdad airport, where the Red Cross had also found abuses.

Prisoners of war are given comprehensive protections under the Third Geneva
Convention, while civilian prisoners are granted considerable protection under
the Fourth Convention.

But under the argument advanced by the military, Iraqi prisoners who are deemed
security risks can be denied the right to communicate with others, and perhaps
other rights and privileges, at least until the overall security situation in
Iraq improves.

The military's rationale relied on a legal exemption within the Fourth Geneva
Convention.

"While the armed conflict continues, and where 'absolute military security so
requires,' security detainees will not obtain full GC protection as recognized
in GCIV/5, although such protection will be afforded as soon as the security
situation in Iraq allows it," the letter says, using abbreviations to refer to
the Article 5 of the Fourth Geneva Convention.

That brief provision opens what is, in effect, a narrow, three-paragraph
loophole in the 1949 convention.

The Red Cross's standing commentary on the provision calls it "an important and
regrettable concession to State expediency." It was drafted, during intense
debate and in inconsistent French and English versions, to address the treatment
of spies and saboteurs.

"What is most to be feared is that widespread application of the Article may
eventually lead to the existence of a category of civilian internees who do not
receive the normal treatment laid down by the Convention but are detained under
conditions which are almost impossible to check," says the Red Cross commentary,
which is posted on its Web site. "It must be emphasized most strongly,
therefore, that Article 5 can only be applied in individual cases of an
exceptional nature."

An authority on the laws of war, Prof. Scott L. Silliman of Duke University,
said that the assertions in the military's letter, signed by Brig. Gen. Janis
Karpinski of the Army, were highly questionable and that the military lawyers
who drafted it may have misconstrued the law.

The category in which prisoners may be excluded from the protections of the
Geneva Conventions that General Karpinski cites, Professor Silliman said, are
for people who can be shown to be a continuing threat to the occupying force,
not people who might have valuable intelligence.

"They may be high value assets but that does not necessarily make them security
risks," he said. The provision cited by General Karpinski provides that the
protections could be suspended for people suspected of "activities hostile to
the security" of a warring state or an occupying power.

In testimony last week on Capitol Hill, Col. Marc Warren, a top American
military lawyer in Iraq, defended harsh techniques available to American
interrogators there as not being in violation of the Geneva Conventions. He said
the conventions should be read in light of "various legal treatises and
interpretations of coercion as applied to security internees."

Until now, the only known element of the Dec. 24 letter had been a provision
described by a senior Army officer as having asserted that the Red Cross should
not seek in the future to conduct no-notice inspections in the cellblock where
the worst abuses took place.

Exactly how the treatment of security prisoners would differ from others under
the military's approach was not spelled out in detail, but clearly it would
allow their segregation into a separate part of the prison for interrogation,
where some of them could be held incommunicado.

The military's letter promised to try to improve prisoners' treatment in some
respects cited by the Red Cross, promising, for example, to provide shelters
against mortar and rocket attacks "in due course" but noting that the shelters
are in short supply for American and allied soldiers. It also said "improvement
can be made" to provide adequate clothing and water, and promised speedier
judgments and discharges of innocent prisoners.

The letter is addressed to Eva Svoboda of the Red Cross committee, who is
identified as the agency's "protection coordinator."

It asserts that the prisoners at Camp Cropper "have been assessed to be of
significant ongoing intelligence value to current and future military operations
in Iraq."

"Their detention condition is in the context of ongoing strategic
interrogation," it said, and "under the circumstances, we consider their
detention to be humane."

The Red Cross report said that at the time of the October visits to Abu Ghraib,
"a total of 601 detainees were held as security detainees."

"Many were unaware of any charges against them or what legal process might be
ahead of them," the undated report said.

Professor Silliman, a former Air Force lawyer who heads the Center on Law,
Ethics and National Security at Duke, said the response of authorities at Abu
Ghraib to the Red Cross appeared to be part of a larger pattern in which the
administration and the military devote great energy to find ways to avoid the
jurisdiction of the Geneva Conventions.

"If you look at this in connection with other things that are coming out, it
doesn't seem like a snap decision but part of an across-the-board pattern of
decision-making to create another category outside the conventions."

He cited a memorandum written in January 2002 by Albert R. Gonzales, the White
House counsel, recommending that President Bush decree that the Geneva
Conventions do not apply to prisoners from the war in Afghanistan. In the
memorandum, Mr. Gonzales said that getting out from under the restrictions of
the Geneva Conventions would preserve the government's flexibility in fighting
terrorism.

* * *


May 21, 2004

JUSTICE MEMOS EXPLAINED HOW TO SKIP PRISONER RIGHTS

By Neil A. Lewis

http://www.nytimes.com/2004/05/21/politics/21MEMO.html

WASHINGTON, May 20 - A series of Justice Department memorandums written in late
2001 and the first few months of 2002 were crucial in building a legal framework
for United States officials to avoid complying with international laws and
treaties on handling prisoners, lawyers and former officials say.

The confidential memorandums, several of which were written or co-written by
John C. Yoo, a University of California law professor who was serving in the
department, provided arguments to keep United States officials from being
charged with war crimes for the way prisoners were detained and interrogated.
They were endorsed by top lawyers in the White House, the Pentagon and the vice
president's office but drew dissents from the State Department.

The memorandums provide legal arguments to support administration officials'
assertions that the Geneva Conventions did not apply to detainees from the
Afghanistan war. They also suggested how officials could inoculate themselves
from liability by claiming that abused prisoners were in some other nation's
custody.

The methods of detention and interrogation used in the Afghanistan conflict, in
which the United States operated outside the Geneva Conventions, is at the heart
of an investigation into prisoner abuse in Iraq in recent months. Human rights
lawyers have said that in showing disrespect for international law in the
Afghanistan conflict, the stage was set for harsh treatment in Iraq.

One of the memorandums written by Mr. Yoo along with Robert J. Delahunty,
another Justice Department lawyer, was prepared on Jan. 9, 2002, four months
after the terrorist attacks in New York and Washington. The 42-page memorandum,
entitled, "Application of treaties and laws to Al Qaeda and Taliban detainees,"
provided several legal arguments for avoiding the jurisdiction of the Geneva
Conventions.

A lawyer and a former government official who saw the memorandum said it
anticipated the possibility that United States officials could be charged with
war crimes, defined as grave breaches of the Geneva Conventions. The document
said a way to avoid that is to declare that the conventions do not apply.

The memorandum, addressed to William J. Haynes, the Pentagon's general counsel,
said that President Bush could argue that the Taliban government in Afghanistan
was a "failed state" and therefore its soldiers were not entitled to protections
accorded in the conventions. If Mr. Bush did not want to do that, the memorandum
gave other grounds, like asserting that the Taliban was a terrorist group. It
also noted that the president could just say that he was suspending the Geneva
Conventions for a particular conflict.

Prof. Detlev Vagts, an authority on international law and treaties at Harvard
Law School, said the arguments in the memorandums as described to him "sound
like an effort to find loopholes that could be used to avoid responsibility."

One former government official who was involved in drafting some of the
memorandums said that the lawyers did not make recommendations but only provided
a range of all the options available to the White House.

On Jan. 25, 2002, Alberto R. Gonzales, the White House counsel, in a memorandum
to President Bush, said that the Justice Department's advice was sound and that
Mr. Bush should declare the Taliban as well as Al Qaeda outside the coverage of
the Geneva Conventions. That would keep American officials from being exposed to
the federal War Crimes Act, a 1996 law, which, as Mr. Gonzales noted, carries
the death penalty.

The Gonzales memorandum to Mr. Bush said that accepting the recommendations of
the Justice Department would preserve flexibility in the global war against
terrorism. "The nature of the new war places a high premium on other factors
such as the ability to quickly obtain information from captured terrorists and
their sponsors in order to avoid further atrocities against American civilians,"
said the memorandum, obtained this week by The New York Times. The details of
the memorandum were first reported by Newsweek.

Mr. Gonzales wrote that the war against terrorism, "in my judgment renders
obsolete Geneva's strict limitations on questioning of enemy prisoners."

Mr. Gonzales also says in the memorandum that another benefit of declaring the
conventions inapplicable would be that United States officials could not be
prosecuted for war crimes in the future by prosecutors and independent counsels
who might see the fighting in a different light.

He observed, however, that the disadvantages included "widespread condemnation
among our allies" and that other countries would also try to avoid jurisdiction
of the Geneva Conventions. It also meant that the United States might have
difficulty in invoking the conventions in protecting its own personnel who might
be captured by an enemy.

Another memorandum from the Justice Department advises officials to create a
situation in which they could plausibly claim that abused prisoners were never
in United States custody.

That memorandum, whose existence was acknowledged by two former officials, noted
that it would be hard to ward off an allegation of torture or inhuman treatment
if the prisoner had been transferred to another country from American custody.
International law prohibits the "rendition" of prisoners to countries if the
possibility of mistreatment can be anticipated.

The former officials said that memorandum was explicit in advising that if
someone were involved in interrogating detainees in a manner that could cross
the line into torture or other prohibited treatment, that person could claim
immunity only if he or she contended that the prisoner was never in United
States custody.

The Gonzales memorandum provoked a response from Secretary of State Colin L.
Powell on Jan. 26 in which he strongly suggested that the advantages of applying
the Geneva Conventions far outweighed their rejection. He said bluntly that
declaring the conventions inapplicable would "reverse over a century of U.S.
policy and practice in supporting the Geneva Conventions and undermine the
protections of the laws of war for our troops." He also said he would "undermine
public support among critical allies."

[ Douglas Jehl contributed reporting for this article. ]

* * *


May 21, 2004

Pentagon Approved Intense Interrogation
Techniques for 911 Suspect at Guantanamo

By David Johnston and Thom Shanker

http://www.nytimes.com/2004/05/21/politics/21GITM.html

WASHINGTON, May 20 -- Interrogators at the Guantanamo Bay prison camp received
Pentagon approval to use special, harsher interrogation procedures on a Saudi
Arabian detainee who was believed to be the planned 20th hijacker in the Sept.
11 terror plot, government officials said Thursday.

The decision followed a debate among Pentagon and military legal authorities
that centered on how to question Mohamed al-Kahtani, who tried unsuccessfully to
enter the United States in August 2001.

After he was turned away by a Customs inspector, Mr. Kahtani returned to the
Middle East. He was later captured in Afghanistan and sent to Guantanamo, where
he was one of the highest ranking Al Qaeda figures at the base.

Mr. Kahtani was believed to have information about the Sept. 11 plot, about
possible future attacks and about funding for the Al Qaeda terrorist network,
and the internal legal debate showed how the issue of coercive treatment had
swirled through the Pentagon before American forces entered Iraq.

At a Pentagon briefing on Thursday, the officials said that Defense Secretary
Donald H. Rumsfeld had approved a range of more aggressive interrogation
techniques in response to a desire in late 2002 to pry more information from a
specific detainee at Guantanamo. But they did not disclose the detainee's
identity.

A senior Pentagon civilian lawyer said there was "some urgency" to increasing
the pressure on this detainee because he likely "had information that the people
at Guantanamo believed was important, not just about perhaps 9/11, but about
future events."

Mr. Kahtani was specifically identified in separate interviews with several
United States government officials as the detainee at the center of the debate.

A range of techniques harsher than those described in standard military doctrine
were sought, based on the administration's legal determination that the
Guantanamo detainees were not conventional prisoners of war, covered by the
Geneva Conventions, but terrorists and illegal enemy combatants.

Pentagon officials have declined to list the approved techniques, saying that
they remain classified.

Officials confirmed that some military lawyers argued against using the
techniques, and an interagency working group was appointed to review the issue.

What techniques ultimately were used on Mr. Kahtani remain unclear. But one
senior United States government official confirmed Thursday that Mr. Kahtani had
provided information about a planned attack and about financial networks to fund
terrorist operations.

A senior Bush administration official said Thursday that the techniques used
against Mr. Kahtani remained well within the bounds of "humane" interrogation
techniques pledged by the Bush administration and included "auditory
stimulation" such as loud music, deprivation of light, segregation from other
detainees and extended periods of interrogation.

Mr. Kahtani's denial of entry into the United States had been described in
detail to the commission investigating the Sept. 11 hijackings. The Saudi
national had arrived in Orlando on Aug. 4, 2001, on a one-way flight from London
and Dubai carrying $2,800 in cash. The Customs inspector who met Mr. Kahtani,
Jose Melendez Perez, said in testimony to the commission that Mr. Kahtani had
become agitated when questioned about his travel plans.

Mr. Melendez Perez said that when told he was being deported, Mr. Kahtani turned
and said in English something "to the effect of, 'I'll be back.' "

Later, authorities determined that Mohamed Atta, the operational leader of the
Sept. 11 plot, was at the Orlando airport on the day that Mr. Kahtani arrived.

Investigators deduced from records of phone calls made by Mr. Atta at the
airport to Saudi Arabia that he was probably phoning confederates to determine
why Mr. Kahtani had failed to show up.

The more aggressive techniques used on Mr. Kahtani were halted between January
2003 and April 2003, when the working group came up with a set of interrogation
techniques that were approved "by consensus," according to one Pentagon
official.

A military lawyer who briefed reporters said that the final set of guidelines
for interrogation had met with approval from the uniformed legal community.

Congressional officials said those techniques were described Thursday to senior
Pentagon and military officials in a classified Capitol Hill hearing to describe
the process of interrogations at Guantanamo.

* * *


May 19, 2004

US BARRED LEGAL REVIEW OF DETENTIONS, LAWYER SAYS

By Adam Liptak

http://www.nytimes.com/2004/05/19/international/middleeast/19LAWY.html?ex=
1085544000&en=82887a41d05f71aa&ei=5062

Military lawyers, who had an active role in supervising interrogations in the
first Gulf War, have been excluded from them in the current war in Iraq, a human
rights lawyer who has studied the matter says.

The lawyer, Scott Horton, a former chairman of the Committee on International
Human Rights of the City Bar Association in New York, said this might have
played a part in the abuse of detainees at the Abu Ghraib prison in Iraq.

"In the interrogation process," Mr. Horton said, "the fact that lawyers were cut
out just opened the door for abuse."

Mr. Horton said he learned of the changed procedures from senior military
lawyers in two confidential meetings last year. Prompted in part by the
meetings, the committee issued a report in April on the interrogation of
detainees.

A Pentagon spokesman did not respond to requests for comment.

In the Gulf War of 1991, members of the military's Judge Advocate General's
Corps, known as JAG's, took an active role, experts said.

"We had JAG officers at all of the detention facilities where interrogations
took place," said John Norton Moore, a law professor at the University of
Virginia and a former American diplomat.

Mr. Horton said, "There had been a process of lawyers being on duty on site at
detention centers" in the first gulf war. Interrogation rooms there, he said,
were equipped with two-way mirrors. "The interrogators never knew if a lawyer
was on the other side," he said, "and lawyers had a right to intercede if
interrogators crossed the line."

"This practice," Mr. Horton said, "has stopped."

Mr. Horton, a lawyer with Patterson, Belknap, Webb & Tyler in New York, said the
military lawyers spoke in generalities and did not indicate that they were
concerned about conditions in Iraq.

"We all thought that this has really got to be about Guantanamo and
Afghanistan," Mr. Horton added, referring to sites at which the United States
also holds prisoners, including members of Al Qaeda and the Taliban. Recent
disclosures about abuse of prisoners in Iraq made him realize that the absence
of lawyers there might have been a contributing factor.

Professor Moore said he did not know what procedures were in place at Abu Ghraib
and other detention centers in Iraq but said the current Bush administration
seems less concerned with legal standards and the role lawyers can play than its
predecessors.

"Something happened with the significance with which law was taken," he said.

Legal experts noted other instances of the phenomenon.

Miles P. Fischer, the chairman of the bar association's Committee on Military
Affairs and Justice, said, for example, that "JAG officers were given very
little opportunity to participate in the order establishing military
commissions." The commissions, created by executive order in 2001, are to try
prisoners designated unlawful combatants, including some held at Guantanamo Bay.

Jordan Paust, a law professor at the University of Houston and a former member
of the faculty at the Army's Judge Advocate General's School, noted similar
concerns.

"I have seen for two years inklings and rumblings from active-duty JAG
officers," he said, "about the attitude of this administration."

Mr. Fischer said that military lawyers can serve an important function.

"The commanders want it," he said, referring to readily available lawyers. "We
have sensitized the commanders that they may be guilty of grave breaches of the
Geneva Conventions" should they fail to comply with the law. The conventions
protect prisoners of war, civilian detainees in wartime and others.

Sidney S. Rosdeitcher, an expert in human rights law and a member of the
committee that released the report on interrogations, said that the United
States had in recent years shown disdain for the conventions.

"The very fact that the lawyers were taken out says something," Mr. Rosdeitcher
said. "There's just an aura of lawlessness. Once you depart, and once you start
engaging in conduct that goes over the line, whatever your justification, it
goes out of control."

He noted that previous administrations adhered to the Geneva Conventions even
when they were not obviously applicable.

"During the Vietnam War," he said, "we treated the Vietcong as P.O.W.'s as a
matter of policy," he said. "They were no more entitled to that treatment than
Al Qaeda."

The Bush administration has said that the conventions do not apply to captured
members of Al Qaeda or the Taliban held at Guantanamo Bay and in Afghanistan. It
has acknowledged, however, that the conventions apply in Iraq.

Mr. Fischer dismissed concerns that giving lawyers a significant role can slow
and complicate military decision-making.

"The JAG's are so integrated that it normally doesn't cost time," he added.

Mr. Horton said the officers who met with him were disturbed by what they called
the administration's disdain for international law.

"They talked about a dismissive attitude," Mr. Horton said. "They have a strong
feeling of pride, of 50 years of compliance with the Geneva Conventions. They
have a sacred feeling about this."

* * *


May 18, 2004

MPs RECEIVED ORDERS TO STRIP IRAQI DETAINEES

By Eric Schmitt and Douglas Jehl

http://www.nytimes.com/2004/05/18/politics/18ABUS.html

WASHINGTON, May 17 -- The American officer who was in charge of interrogations
at the Abu Ghraib prison has told a senior Army investigator that intelligence
officers sometimes instructed the military police to force Iraqi detainees to
strip naked and to shackle them before questioning them. But he said those
measures were not imposed "unless there is some good reason."

The officer, Col. Thomas M. Pappas, commander of the 205th Military Intelligence
Brigade, also told the investigator, Maj. Gen. Antonio M. Taguba, that his unit
had "no formal system in place" to monitor instructions they had given to
military guards, who worked closely with interrogators to prepare detainees for
interviews. Colonel Pappas said he "should have asked more questions,
admittedly" about abuses committed or encouraged by his subordinates.

The statements by Colonel Pappas, contained in the transcript of a Feb. 11
interview that is part of General Taguba's 6,000-page classified report, offer
the highest-level confirmation so far that military intelligence soldiers
directed military guards in preparing for interrogations. They also provide the
first insights by the senior intelligence officer at the prison into the
relationship between his troops and the military police. Portions of Colonel
Pappas's sworn statements were read to The New York Times by a government
official who had read the transcript.

Testimony from guards and detainees at a preliminary hearing for a soldier
accused of abuse said that orders from interrogators at Abu Ghraib had stopped
short of the graphic abuse seen in the photographs at the center of the prison
scandal. [Page A14.]

The interrogation techniques Colonel Pappas described were used on detainees
protected by the Geneva Conventions, which prohibit inhumane treatment of
prisoners. Military officials said on Monday that the United States had months
ago quietly abandoned an early plan to designate as unlawful combatants some of
the prisoners captured by American forces in Iraq. No prisoners in Iraq were
classified as unlawful combatants.

That means that even foreign fighters and suspected Al Qaeda members captured in
Iraq, along with Iraqis captured as prisoners of war and insurgents, have
remained protected by the Geneva Conventions.

The option of designating prisoners captured in Iraq as unlawful combatants "has
not been foreclosed, but this is not under consideration," a senior military
official said.

The role of military intelligence officials and civilian contract interrogators
at Abu Ghraib is still under investigation by Maj. Gen. George R. Fay, the
deputy chief of Army intelligence.

Colonel Pappas confirmed in his statements that his unit had enacted several
changes recommended by Maj. Gen. Geoffrey D. Miller, the head of detention
operations at Guantanamo Bay, Cuba, whom the Pentagon sent to Iraq in August and
September to review detention operations.

A major finding of General Miller's visit, Colonel Pappas said, was "to provide
dedicated M.P.'s in support of interrogations."

Several military police officers and their commanders at Abu Ghraib have said
that military intelligence officers directed them to "set the conditions" to
enhance the questioning. When General Taguba asked what safeguards existed to
ensure that guards "understand the instructions or limits of instructions, or
whether the instructions were legal," Colonel Pappas acknowledged that there
were no assurances.

"There would be no way for us to actually monitor whether that happened,"
Colonel Pappas told General Taguba. "We had no formal system in place to do
that."

Colonel Pappas continued, "To my knowledge, instructions given to the M.P.'s,
other than what I have mentioned, such as shackling, making detainees strip down
or other measures used on detainees before interrogations, are not typically
made unless there is some good reason."

Individual interrogation plans were drafted for each detainee, and were approved
by Colonel Pappas or his deputy, he said. In every case, he said, the plans
followed the guidance in the rules of interrogation that Lt. Gen. Ricardo S.
Sanchez, the top ground commander in Iraq, approved on Oct. 12.

In his report, General Taguba concluded that Colonel Pappas was "either directly
or indirectly responsible" for the actions of those who mistreated and
humiliated Iraqi prisoners.

Colonel Pappas is a 23-year Army veteran who began his military career after
graduating in 1981 from Rutgers University, where he was part of the R.O.T.C.
program. He took command of the 205th Military Intelligence Brigade in July,
after the unit had been in Iraq for more than three months, as part of the V
Corps, which is based in Heidelberg, Germany.

Colonel Pappas has declined all interview requests, including one made on Monday
through a spokesman for the Army's V Corps in Germany.

In deciding not to invoke the unlawful combatant designation on any prisoners in
Iraq, the Bush administration appears to have concluded that detention and
interrogation procedures permitted under the Geneva Conventions were adequate
even for suspected Al Qaeda members captured in Iraq. The conventions spell out
protections that include monitoring by the International Committee of the Red
Cross. The United States said at the outset of the war that no one captured in
Iraq would be sent to the American prison at Guantanamo Bay that houses Al Qaeda
suspects detained in Afghanistan and elsewhere, and none have been.

That new approach is a sharp reversal from the one that Pentagon officials
described after the major phase of the war in Iraq ended last May. Then,
American officers said that the thousands of prisoners in Iraq were being sorted
to determine who among them should be labeled unlawful combatants. The Bush
administration has applied that status to Al Qaeda members elsewhere and has
used it to justify their indefinite detention at the American base at Guantanamo
Bay under conditions not subject to the conventions.

Last May, Col. Karl Goetze, the staff judge advocate for occupation land forces
in Iraq, said at a Pentagon briefing that the military intended to segregate
"unlawful combatants" from Iraqi prisoners who should be treated as prisoners of
war.

"Foreign fighters could fall into the category of unlawful combatants," Colonel
Goetze said. He said he expected that only a small percentage of the prisoners
in Iraq would be designated "unlawful combatants," but he said, "These are the
individuals who raised up, took arms, not carrying them in an open manner, not
wearing uniforms; in other words, engaging in tactics and techniques that were
not in accordance with the law of armed combat."

On Monday, however, a senior military officer said in an e-mail message that "no
persons in Iraq have been declared unlawful combatants." The Iraqi prisoners
held in the American-run prison at Abu Ghraib have been labeled security
detainees. In testimony addressing the scandal over the mistreatment of Iraqi
prisoners there, American officials have said that the Geneva accords are "fully
applicable" to all prisoners held by the United States in Iraq.

Bush administration officials in Iraq have referred often to the presence of
foreign fighters among those opposing American forces in Iraq, but American
officials have never specified how many foreign fighters are being held captive
by the United States. American officials have promised that all Iraqi prisoners
would be kept in Iraq, but they have been less explicit about whether the same
rules would apply to foreigners.

On Monday, a senior Defense Department official said that high-level Iraqi
prisoners held at a site on the outskirts of the Baghdad airport were now being
permitted up to three hours of time outside each day, more than the
International Committee for the Red Cross observed and described in a February
2004 report.

In the February report, the Red Cross committee said that the estimated 100
prisoners at the site, designated as "high value detainees" by the United
States, were being held in isolation for months at a time for as long as 23
hours a day without sunlight. The senior defense official said that
representatives of the Red Cross committee had visited the site twice since
February, and appeared satisfied with the way the prisoners, who include Tariq
Aziz and other former advisers to Saddam Hussein, were being treated.

The Iraq Survey Group, along with another agency that the official would not
name, is principally in charge of the interrogation of those prisoners, he said.
But he said the rules for their detention and interrogation were set by the
Central Command.

* * *


May 17, 2004

SOME IRAQIS HELD OUTSIDE CONTROL OF TOP GENERAL
By Douglas Jehl

http://www.nytimes.com/2004/05/17/international/middleeast/17ABUS.html

WASHINGTON, May 16 -- About 100 high-ranking Iraqi prisoners held for months at
a time in spartan conditions on the outskirts of Baghdad International Airport
are being detained under a special chain of command, under conditions not
subject to approval by the top American commander in Iraq, according to military
officials.

The unusual lines of authority in the detainees' handling are part of a tangled
network of authority over prisoners in Iraq, in which the military police,
military intelligence, the Central Intelligence Agency, the Defense Intelligence
Agency, various military commanders and the Pentagon itself have all played a
role. Congressional investigators who are looking into the scandal over the
abuse of Iraqi prisoners say those arrangements have made it difficult to
determine where the final authority lies.

At least as of February, many of the 100 or so prisoners categorized by American
officials as "high value detainees" because of the special intelligence they are
believed to possess, had been held since June 2003 for nearly 23 hours a day in
strict solitary confinement in small concrete cells without sunlight, according
to a report by the International Committee of the Red Cross.

While not tantamount to the sexual humiliation and other abuses inflicted on
Iraqi detainees at Abu Ghraib prison, the conditions have been described by the
Red Cross as a violation of the Geneva Conventions, the international treaty
that the Bush administration has said it regards as "fully applicable" to all
prisoners held by the United States in Iraq.

Under arrangements in effect since October, military officials said at a
Pentagon briefing on Friday, explicit authorization from the American commander,
Lt. Gen. Ricardo S. Sanchez, has been required in each of about 25 cases in
which prisoners have been subjected to isolation for longer than 30 days. But on
Sunday, a senior military officer said that statement did not apply to the
prisoners being held at the airport, because "we were not the authority" for the
high-value detainees.

The officer referred questions about the high-value Iraqi prisoners to the
United States Central Command, in Tampa, Fla., where a spokesman said he could
not answer them on Sunday.

Defense Department officials said the principal responsibility for the high-
value prisoners and their treatment belonged to the Iraq Survey Group, which is
headed by Maj. Gen. Keith Dayton of the Defense Intelligence Agency.

The 1,400-person Iraq Survey Group was formed last June, principally to take
charge of the hunt for Iraq's illicit weapons, although its mandate has also
included gathering information about Iraqi war crimes. The survey group falls
under the overall authority of the Central Intelligence Agency, under George J.
Tenet, for matters related to the illicit weapons hunt. But on other matters it
reports to the Central Command, under Gen. John P. Abizaid.

The so-called high-value Iraqi detainees said by military officials to be held
at Camp Cropper on the airport's outskirts do not include Saddam Hussein, who
was not captured until December and is being held by the Federal Bureau of
Investigation elsewhere in Iraq, American government officials have said. These
officials say Mr. Hussein has also been held in isolation.

The group does, however, include Tariq Aziz, a top Hussein aide, and other
former senior officials depicted on a deck of cards created by the Pentagon to
represent a 55-member most wanted list.

The designation of a "high value detainee" was described by military officials
as subjective, assigned to prisoners based on an assessment of the intelligence
information they might have about matters like illicit weapons, the anti-
American insurgency or the conduct of Mr. Hussein's government.

In the report that it completed in February, the Red Cross committee said it had
written to American officials last October recommending an end to the isolation
imposed on the high-value prisoners. "The internment of persons in solitary
confinement for months at a time in cells devoid of daylight for nearly 23 hours
a day is more severe than the forms of internment provided for" under the Geneva
Conventions, the Red Cross said in the report.

But there has been no indication that the United States has called a halt to the
procedure. On Friday, military officials in Washington who announced that
harsher forms of treatment would no longer be available to interrogators and
guards in Iraq also said that General Sanchez, the commander in Iraq, was
leaving open the option of continuing to authorize the isolation of prisoners.

The question of whether harsh treatment of the detainees was authorized by
senior Pentagon officials is among the main topics of the Congressional
inquiries into prison abuse. An article by Seymour Hersh in the May 24 issue of
The New Yorker says the tone for the abuse reflected secret directives from the
Pentagon that were initially intended to give Special Operations troops and
intelligence operatives a freer hand in pursuing Al Qaeda members.

In a statement on Saturday, the Pentagon described that article as "outlandish"
and "filled with error."

"No responsible official of the Department of Defense approved any program that
could conceivably have been intended to result in such abuses as witnessed in
the recent photos and videos," it said.

However, Senator John W. Warner, Republican of Virginia and chairman of the
Senate Armed Services Committee, said in a commencement address on Sunday that
in light of the allegations, his committee would look "up and down and sideways
in the chain of command and get to the bottom of this," said a spokesman for the
senator.

Senator Lindsey Graham, Republican of South Carolina, appearing on the CBS News
program "Face the Nation," said, "The question is: do we have an out-of-control
prison or an out-of-control system?"

In response to questions, Senator Graham, Senator Warner and other lawmakers who
spoke publicly on Sunday said they had not yet been able to determine whether
The New Yorker account was accurate.

Senator Carl Levin of Michigan, the top Democrat on the Armed Services
Committee, said that if The New Yorker article was accurate, "it raises this
issue a whole new level."

"The question," he said, "is whether there was this kind of a secret program,
which authorized this additional level of abuse."

A report in this week's Newsweek quotes a memo written Jan. 25, 2002, by Alberto
R. Gonzales, the White House counsel, to Secretary of State Colin L. Powell
saying that "this new paradigm of terrorism renders obsolete" the "strict
limitation on questioning of enemy prisoners" spelled out in the Geneva accords.

Asked about it on the NBC News program "Meet the Press," Mr. Powell said he
could not recall the specific memo but said he had always argued that the Bush
administration should comply with the provisions of the Geneva accords --
"either by the letter, if it's appropriate to those individuals in our custody
that they are really directly under the Geneva Convention, or if they're illegal
noncombatants and not directly under the convention, we should treat them
nevertheless in a humane manner in accordance with what is expected of by
international law and the Geneva Convention."

To date, military and intelligence officials have declined to describe the
conditions under which the senior Iraqi officials have been held in Iraq.

Mr. Hussein had been in the custody of the Central Intelligence Agency in the
early weeks after his capture in December, intelligence officials have said, but
has been transferred to the F.B.I. in anticipation of his being transferred in
turn to the Iraqi authorities to stand trial in Iraq, probably next year.

All of the American-run detention centers in Iraq, including the Abu Ghraib
prison and the high-value detention site at Camp Cropper, are run by the
military and guarded by the military police, military and Congressional
officials said. In general, the military has been assigned the leading role in
the questioning of Iraqi detainees, to the extent that military intelligence
officials are supposed to sit in even on interrogations conducted by C.I.A.
officers, a senior intelligence official said.

But the exact role played by officers from the C.I.A. and D.I.A. is not clear,
and neither is the role played by members of the covert task forces run by the
military that have taken the lead in the hunt for weapons in Iraq and for Mr.
Hussein.

The task forces, which include C.I.A. officers and elite Special Operations
troops including members of the Army's Delta Force and Navy Seals, have been
given different names over time. But one of them, Task Force 121, played a
leading role in the capture of Mr. Hussein, and a successor unit is still
operating in both Iraq and Afghanistan.

Intelligence officials have acknowledged that the C.I.A. played a role in
interrogating about two dozen prisoners at Abu Ghraib, and that one prisoner
died there during questioning in November, in a case that is being investigated
by the agency's inspector general as a possible criminal homicide.

They also say that C.I.A. interrogators have questioned prisoners held at the
site at the airport, and they have acknowledged that agency employees for a time
enlisted military guards at Abu Ghraib to try to hide "ghost detainees" from the
Red Cross.

That latter practice -- intended "to keep the capture of a small number of
terrorists quiet for some time" -- was discontinued in January, a senior
intelligence official said on Sunday.

In practice, however, Bush administration officials have also acknowledged that
some of the overall direction has come from senior civilians at the Pentagon,
including Stephen Cambone, the under secretary of defense for intelligence,
military officials said.

In testimony last week before Congress, Mr. Cambone acknowledged that it was he,
among others, who encouraged Maj. Gen. Geoffrey Miller, who was then running the
American prison at Guantanamo Bay, Cuba, to head a delegation that traveled to
Iraq last summer to seek recommendations on improving the interrogation process
there.

Mr. Cambone has said that he was never briefed about that trip by General Miller
himself, but received only a secondhand briefing from his own top deputy, Lt.
Gen. William G. Boykin, the deputy under secretary of defense for intelligence.

Mr. Cambone has said the trip resulted in some important organizational changes,
including the establishment under General Sanchez of a new "fusion cell" aimed
at integrating intelligence information from a wide variety of sources.

Over breakfast with reporters last November, before the problems at Abu Ghraib
had begun to surface, Mr. Cambone referred broadly to a trip made to Iraq last
August by a delegation that he said "included people from the C.I.A." that made
recommendations for "an increased level of intelligence support."

"They came back with a list of somewhere close to 80 or 90 recommendations on
some of the changes and adjustments that needed to be made," Mr. Cambone said of
the group. "Some were small: make sure you have the proper software down at a
certain level of command and so forth. Others were rather larger."

[ Sheryl Gay Stolberg contributed reporting from Washington for this article. ]

* * *



May 15, 2004

EARLIER JAIL SEEN AS INCUBATOR FOR ABUSES IN IRAQ
By Douglas Jehl

http://www.nytimes.com/2004/05/15/politics/15ABUS.html

WASHINGTON, May 14 -- An American-run detention center outside Baghdad known as
Camp Cropper was reportedly the site of numerous abuses of Iraqi prisoners
several months before the mistreatment of prisoners unfolded last fall at Abu
Ghraib prison, according to documents and interviews.

The detention facility, on the outskirts of Baghdad International Airport,
appears to have served as an incubator for the acts of humiliation that were
inflicted months later on Iraqi prisoners at Abu Ghraib. At both sites, the
mistreatment has been linked to interrogations overseen by the 205th Military
Intelligence Brigade, based in Wiesbaden, Germany.

The alleged abuses at Camp Cropper last May and June were severe enough to have
prompted formal complaints to American commanders from visiting officials of the
International Committee for the Red Cross. After several visits to Camp Cropper,
where they interviewed Iraqi prisoners, officials of the I.C.R.C. in early July
2003 cited at least 50 incidents of abuse reported to have taken place in a part
of the prison under the control of military interrogators.

In one example cited to American officers in Baghdad that month by the committee
officials, a prisoner said he had been beaten during interrogation, as part of
an ordeal in which he was hooded, cuffed, threatened with being tortured and
killed, urinated on, kicked in the head, lower back and groin, "force-fed a
baseball which was tied into the mouth using a scarf and deprived of sleep for
four consecutive days."

A medical examination of the prisoner by the committee's doctors "revealed
hematoma in the lower back, blood in urine, sensory loss in the right hand due
to tight handcuffing with flexi-cuffs, and a broken rib," said a final report by
the Red Cross panel, which was presented to American officials in February 2004.

"Sometimes they treated them good, and sometimes they didn't treat them so
good," Staff Sgt. Floyd Boone, a military policeman, said of the military
intelligence interrogators from the 205th Brigade at Camp Cropper.

He and other members of the military police were not permitted to watch the
interrogations, he says, but he remembers "all the noise, yelling and screaming"
from trailers where interrogators from the 205th Brigade took Iraqi prisoners
for questioning before returning them to the custody of the military police.

After the I.C.R.C. complaints, the military interrogation site at Camp Cropper
where the abuses took place was closed down, senior military officials said,
though they declined to discuss the committee's report or to say whether it had
prompted that move. "A decision was made to close the camp and consolidate at
Abu Ghraib," a senior military officer said.

It remains unclear whether any disciplinary action was taken at the time against
members of the 205th Brigade. The brigade commander, Col. Thomas M. Pappas, who
took command at the end of June 2003, was later put in charge of interrogations
at Abu Ghraib and was implicated by the Army's investigation of abuses as being
"either directly or indirectly responsible" for the actions of those who
mistreated and humiliated Iraqi prisoners there.

Colonel Pappas and a spokesman for the unit, part of the Army's V Corps in
Wiesbaden, have refused to comment on the affair.

To date, the Camp Cropper facility, one of the first opened by the United States
military in Iraq, has largely escaped the public scrutiny attached to other
facilities in Iraq, particularly Abu Ghraib, which did not open until August and
became the site of the most horrific abuses. Since August, Camp Cropper has
served primarily as the detention site for about 100 former high-ranking Iraqi
officials, who have been held in isolation in concrete cells.

The 205th Military Intelligence Brigade is now the principal focus of an
internal Army inquiry that is expected to shed new light on the abuses,
according to senior military officers.

In November, Lt. Gen. Ricardo Sanchez, the top American commander in Iraq,
elevated the brigade to an even more prominent role, assigning it to overall
responsibility for Abu Ghraib, over the 800th Military Police Brigade, an Army
Reserve unit headed Brig. Gen. Janis Karpinski.

At Camp Cropper, as at most American-run prisons in Iraq, the military
intelligence brigade, which was responsible for interrogations, operated in a
structure parallel to the military police, who were in charge of the prison and
its prisoners.

Some soldiers assigned to Camp Cropper, including members of the military police
and of a military intelligence unit, have said they knew nothing of the abuse.

"I never saw anyone come out of interrogations looking stressed or abused," said
Sgt. First Class James Glascox, 44, of Snow Hill, Md. "I never heard complaints
about maltreatment. I was never aware of any problem with the M.I. unit that was
with us."

Maj. Robert Michnowicz, 43, an Army Reserve officer, commanded the 325th
Military Intelligence battalion during its deployment in Iraq. In a telephone
interview on Friday, he said some members of his 300-member unit were among
elements of three different military intelligence battalions assigned to Camp
Cropper between June and September 2003, under the overall supervision of
Colonel Pappas.

Major Michnowicz, who was based elsewhere in Iraq, said he visited Camp Cropper
about once a week, and had not sat in on interrogations. But he said he had
never heard any reports from his soldiers about abuses there. "Nobody came out
and said anything," he said. "There was nothing like what has been written about
in the papers."

Still, by July 2003, alleged abuses of Iraqi prisoners at Camp Cropper were
among problems that had prompted loud and repeated warnings, not just from the
I.C.R.C. officials, but from others focused on human rights, including Amnesty
International, and a top deputy to the United Nations high commissioner for
human rights.

In May of 2003, according to the I.C.R.C. report, officials from that
organization hand-delivered to officers of the United States Central Command in
Doha, Qatar, a memorandum "based on over 200 allegations of ill-treatment of
prisoners of war during capture and interrogation" during the period of major
combat that followed the American invasion in March.

But it remains unclear how seriously those complaints were taken by American
officials, and to what extent they were even addressed by American commanders in
Iraq, by the American civilian authorities there, or by their superiors at the
Central Command, the Pentagon and the State Department.

American military spokesman in Baghdad and at Central Command headquarters in
Tampa, Fla., said they would not be able to comment by Friday night on any
action that might have been taken in response to the Red Cross reports.

The abuses at Camp Cropper in those early months were largely outside the scope
of the most detailed investigation to date, completed by Maj. Gen. Antonio M.
Taguba, which focused on the conduct of the 800th Military Police Brigade. But
even in that report, submitted in March, General Taguba cited the 205th Brigade
for possible wrongdoing, identifying Colonel Pappas, Lt. Col. Steve L. Jordan
and two civilian contractors who worked for the unit as having been "either
directly or indirectly responsible for the abuses at Abu Ghraib."

To date, the only American soldiers charged in connection with the Abu Ghraib
abuses are seven members of the 800th Brigade, all from the 372nd Military
Police Company, from Cresaptown, Md. But in addition to those abuses, the Taguba
report identified others, including "abuses committed by members of the 325th
M.I. Battalion, 205th M.I. Brigade, and Joint Interrogation and Debriefing
Center," which all reported to Colonel Pappas.

On the basis of the Taguba report, General Sanchez immediately "directed the
suspension of a military intelligence officer and the initiation of a separate
investigation into allegations of possible military intelligence involvement in
the abuse of detainees," a senior military official said last week.

The official would not identify the officer who was suspended, saying he was a
subject of the new investigation, which began late last month under Maj. Gen.
George R. Fay, the deputy chief of Army intelligence. The inquiry is focusing on
the conduct of the 205th Military Intelligence Brigade and civilian contract
interrogators who were working with the unit, Army officials have said.

The I.C.R.C. report cites a "working paper" submitted to the occupation
authorities in early July 2003 that was based on at least two visits by the
group's representatives to the site. The working paper detailed "approximately
50 allegations of ill treatment in the military intelligence section of Camp
Cropper, at Baghdad International Airport," including "a combination of petty
and deliberate acts of violence aimed at securing the cooperation of persons
deprived of their liberty with interrogators," according to the final report.

Camp Cropper, opened by the 115th Military Police Battalion at the end of April
2003, held as many as 1,000 Iraqi prisoners at one time, most of them rounded up
after a wave of looting and crime in Baghdad that followed the main phase of the
war. The Taguba report cites three different Army investigations conducted by
the 115th Battalion in response to riots, shootings and other events at Camp
Cropper, but it does not cite any disciplinary action taken by the unit.

A second, much smaller section of the prison was set aside for so-called high-
value prisoners, primarily the former Iraqi officials on the military's top-55
wanted list, according to military officials. Those prisoners, most of them held
in isolation beginning in May 2003, were interrogated by a different group,
principally by members of a Defense Intelligence Agency unit under the Iraq
Survey Group, whose main goal was to obtain intelligence related to illicit
weapons and war crimes under Saddam Hussein.

But the prisoners reported to have been abused during interrogations were from
the larger group, the final I.C.R.C. report said. Shortly after the July working
paper was submitted, "the military intelligence internment section was closed"
and detainees were transferred elsewhere, some to Abu Ghraib and some to the
high-value detainees section, under the military police, the report said.

"From this time onwards," the report said, "the I.C.R.C. observed that the ill
treatment of this category of persons deprived of their liberty by military
intelligence declined and even stopped, while their interrogation continued
through to the end of the year 2003."

[ Michael Janofsky contributed reporting from Washington for this article and
Stacey Stowe from Hartford. ]

* * *


May 13, 2004

HARSH C.I.A. METHODS CITED IN TOP QAEDA INTERROGATIONS

By James Risen, David Johnston and Neil A. Lewis

http://www.nytimes.com/2004/05/13/politics/13DETA.html

WASHINGTON, May 12 -- The Central Intelligence Agency has used coercive
interrogation methods against a select group of high-level leaders and
operatives of Al Qaeda that have produced growing concerns inside the agency
about abuses, according to current and former counterterrorism officials.

At least one agency employee has been disciplined for threatening a detainee
with a gun during questioning, they said.

In the case of Khalid Shaikh Mohammed, a high-level detainee who is believed to
have helped plan the attacks of Sept. 11, 2001, C.I.A. interrogators used
graduated levels of force, including a technique known as "water boarding," in
which a prisoner is strapped down, forcibly pushed under water and made to
believe he might drown.

These techniques were authorized by a set of secret rules for the interrogation
of high-level Qaeda prisoners, none known to be housed in Iraq, that were
endorsed by the Justice Department and the C.I.A. The rules were among the first
adopted by the Bush administration after the Sept. 11 attacks for handling
detainees and may have helped establish a new understanding throughout the
government that officials would have greater freedom to deal harshly with
detainees.

Defenders of the operation said the methods stopped short of torture, did not
violate American anti-torture statutes, and were necessary to fight a war
against a nebulous enemy whose strength and intentions could only be gleaned by
extracting information from often uncooperative detainees. Interrogators were
trying to find out whether there might be another attack planned against the
United States.

The methods employed by the C.I.A. are so severe that senior officials of the
Federal Bureau of Investigation have directed its agents to stay out of many of
the interviews of the high-level detainees, counterterrorism officials said. The
F.B.I. officials have advised the bureau's director, Robert S. Mueller III, that
the interrogation techniques, which would be prohibited in criminal cases, could
compromise their agents in future criminal cases, the counterterrorism officials
said.

After the attacks of Sept. 11, President Bush signed a series of directives
authorizing the C.I.A. to conduct a covert war against Osama bin Laden's Qaeda
network. The directives empowered the C.I.A. to kill or capture Qaeda leaders,
but it is not clear whether the White House approved the specific rules for the
interrogations.

The White House and the C.I.A. declined to comment on the matter.

The C.I.A. detention program for Qaeda leaders is the most secretive component
of an extensive regime of detention and interrogation put into place by the
United States government after the Sept. 11 attacks and the war in Afghanistan
that includes the detention facilities run by the military in Iraq and
Guantanamo Bay, Cuba.

There is now concern at the agency that the Congressional and criminal inquiries
into abuses at Pentagon-run prisons and other detention centers in Iraq and
Afghanistan may lead to examinations of the C.I.A's handling of the Qaeda
detainees. That, in turn, could expose agency officers and operations to the
same kind of public exposure as the military now faces because of the Iraq
prison abuses.

So far, the agency has refused to grant any independent observer or human rights
group access to the high-level detainees, who have been held in strict secrecy.
Their whereabouts are such closely guarded secrets that one official said he had
been told that Mr. Bush had informed the C.I.A. that he did not want to know
where they were.

The authorized tactics are primarily those methods used in the training of
American Special Operations soldiers to prepare them for the possibility of
being captured and taken prisoners of war. The tactics simulate torture, but
officials say they are supposed to stop short of serious injury.

Counterrorism officials say detainees have also been sent to third countries,
where they are convinced that they might be executed, or tricked into believing
they were being sent to such places. Some have been hooded, roughed up, soaked
with water and deprived of food, light and medications.

Many authorities contend that torture and coercive treatment is as likely to
provide information that is unreliable as information that is helpful.

Concerns are mounting among C.I.A. officers about the potential consequences of
their actions. "Some people involved in this have been concerned for quite a
while that eventually there would be a new president, or the mood in the country
would change, and they would be held accountable," one intelligence source said.
"Now that's happening faster than anybody expected."

The C.I.A.'s inspector general has begun an investigation into the deaths of
three lower-level detainees held by the C.I.A in Iraq and Afghanistan. The
Justice Department is also examining the deaths.

The secret detention system houses a group of 12 to 20 prisoners, government
officials said, some under direct American control, others ostensibly under the
supervision of foreign governments.

The C.I.A. high-level interrogation program seemed to show early results with
the capture of Abu Zubaida in April 2002. Mr. Zubaida was a close associate of
Mr. bin Laden's and had run Al Qaeda's recruiting, in which young men were
brought from other countries to training camps in Afghanistan.

Under such intensive questioning, Mr. Zubaida provided useful information
identifying Jose Padilla, a low-level Qaeda convert who was arrested in May 2002
in connection with an effort to build a dirty bomb. Mr. Zubaida also helped
identify Mr. Mohammed as a crucial figure in the 9/11 plot, counterterrorism
officials said.

A few other detainees have been identified by the Bush administration, like
Ramzi bin al-Shibh, another 9/11 plotter and Walid Ba'Attash, who helped plan
the East Africa embassy bombings in 1998 and the attack on the Navy destroyer
Cole in October 2000.

Some of the prisoners have never been identified by the government. Some may
have only peripheral ties to Al Qaeda. One Middle Eastern man, who had been
identified by intelligence officials as a money launderer for Mr. bin Laden, was
captured in the United Arab Emirates. He traveled there when some of the
emirates' banks froze his accounts. When the U.A.E. government alerted the the
C.I.A. that he was in the country, the man was arrested and subsequently
disappeared into the secret detention program.

In the interrogation of Mr. Mohammed, C.I.A. officials became convinced that he
was not being fully cooperative about his knowledge of the whereabouts of Mr.
bin Laden. Mr. Mohammed was carrying a letter written by Mr. bin Laden to a
family member when he was captured in Pakistan early in 2003. The C.I.A.
officials then authorized even harsher techniques, according to officials
familiar with the interrogation.

The C.I.A. has been operating its Qaeda detention system under a series of
secret legal opinions by the agency's and Justice Department lawyers. Those
rules have provided a legal basis for the use of harsh interrogation techniques,
including the water-boarding tactic used against Mr. Mohammed.

One set of legal memorandums, the officials said, advises government officials
that if they are contemplating procedures that may put them in violation of
American statutes that prohibit torture, degrading treatment or the Geneva
Conventions, they will not be responsible if it can be argued that the detainees
are formally in the custody of another country.

The Geneva Conventions prohibit "violence to life and person, in particular . .
. cruel treatment and torture" and "outrages upon personal dignity, in
particular, humiliating and degrading treatment."

Regarding American anti-torture laws, one administration figure involved in
discussions about the memorandums said: "The criminal statutes only apply to
American officials. The question is how involved are the American officials."

The official said the legal opinions say restrictions on procedures would not
apply if the detainee could be deemed to be in the custody of a different
country, even though American officials were getting the benefit of the
interrogation. "It would be the responsibility of the other country," the
official said. "It depends on the level of involvement."

Like the more numerous detainees at Guantanamo Bay, the high-level Qaeda
prisoners have also been defined as unlawful combatants, not as prisoners of
war. Those prisoners have no standing in American civilian or military courts.

The Bush administration began the program when intelligence agencies realized
that a few detainees captured in Afghanistan had such a high intelligence value
that they should be separated from the lower-level figures who had been sent to
a military installation at Guantanamo Bay, which officials felt was not
suitable.

There was little long-term planning. The agency initially had few interrogators
and no facilities to house the top detainees. After the Sept. 11 attacks, the
agency began to search for remote sites in friendly countries around the world
where Qaeda operatives could be kept quietly and securely.

"There was a debate after 9/11 about how to make people disappear," a former
intelligence official said.

The result was a series of secret agreements allowing the C.I.A. to use sites
overseas without outside scrutiny.

So far, the Bush administration has not said what it intends to do over the long
term with any of the high-level detainees, leaving them subject to being
imprisoned indefinitely without any access to lawyers, courts or any form of due
process.

Some officials have suggested that some of the high-level detainees may be tried
in military tribunals or officially turned over to other countries, but
counterterrorism officials have complained about the Bush administration's
failure to have an "endgame" for these detainees. One official said they could
also be imprisoned indefinitely at a new long-term prison being built at
Guantanamo.

* * *


May 8, 2004

MISTREATMENT OF PRISONERS IS CALLED ROUTINE IN U.S.

By Fox Butterfield

http://www.nytimes.com/2004/05/08/national/08PRIS.html

Physical and sexual abuse of prisoners, similar to what has been uncovered in
Iraq, takes place in American prisons with little public knowledge or concern,
according to corrections officials, inmates and human rights advocates.

In Pennsylvania and some other states, inmates are routinely stripped in front
of other inmates before being moved to a new prison or a new unit within their
prison. In Arizona, male inmates at the Maricopa County jail in Phoenix are made
to wear women's pink underwear as a form of humiliation.

At Virginia's Wallens Ridge maximum security prison, new inmates have reported
being forced to wear black hoods, in theory to keep them from spitting on
guards, and said they were often beaten and cursed at by guards and made to
crawl.

The corrections experts say that some of the worst abuses have occurred in
Texas, whose prisons were under a federal consent decree during much of the time
President Bush was governor because of crowding and violence by guards against
inmates. Judge William Wayne Justice of Federal District Court imposed the
decree after finding that guards were allowing inmate gang leaders to buy and
sell other inmates as slaves for sex.

The experts also point out that the man who directed the reopening of the Abu
Ghraib prison in Iraq last year and trained the guards there resigned under
pressure as director of the Utah Department of Corrections in 1997 after an
inmate died while shackled to a restraining chair for 16 hours. The inmate, who
suffered from schizophrenia, was kept naked the whole time.

The Utah official, Lane McCotter, later became an executive of a private prison
company, one of whose jails was under investigation by the Justice Department
when he was sent to Iraq as part of a team of prison officials, judges,
prosecutors and police chiefs picked by Attorney General John Ashcroft to
rebuild the country's criminal justice system.

Mr. McCotter, 63, is director of business development for Management & Training
Corporation, a Utah-based firm that says it is the third-largest private prison
company, operating 13 prisons. In 2003, the company's operation of the Santa Fe
jail was criticized by the Justice Department and the New Mexico Department of
Corrections for unsafe conditions and lack of medical care for inmates. No
further action was taken.

In response to a request for an interview on Friday, Mr. McCotter said in a
written statement that he had left Iraq last September, just after a ribbon-
cutting ceremony to open Abu Ghraib.

"I was not involved in any aspect of the facility's operation after that time,"
he said.

Nationwide, during the last quarter century, over 40 state prison systems were
under some form of court order, for brutality, crowding, poor food or lack of
medical care, said Marc Mauer, assistant director of the Sentencing Project, a
research and advocacy group in Washington that calls for alternatives to
incarceration.

In a 1999 opinion, Judge Justice wrote of the situation in Texas, "Many inmates
credibly testified to the existence of violence, rape and extortion in the
prison system and about their own suffering from such abysmal conditions."

In a case that began in 2000, a prisoner at the Allred Unit in Wichita Falls,
Tex., said he was repeatedly raped by other inmates, even after he appealed to
guards for help, and was allowed by prison staff to be treated like a slave,
being bought and sold by various prison gangs in different parts of the prison.
The inmate, Roderick Johnson, has filed suit against the Texas Department of
Criminal Justice and the case is now before the United States Court of Appeals
for the Fifth Circuit in New Orleans, said Kara Gotsch, public policy
coordinator for the National Prison Project of the American Civil Liberties
Union, which is representing Mr. Johnson.

Asked what Mr. Bush knew about abuse in Texas prisons while he was governor,
Trent Duffy, a White House spokesman, said the problems in American prisons were
not comparable to the abuses exposed at Abu Ghraib.

The corrections experts are careful to say they do not know to what extent the
brutality and humiliation at Abu Ghraib were intended to break the prisoners for
interrogation or were just random acts.

But Chase Riveland, a former secretary of corrections in Washington State and
Colorado and now a prison consultant based near Seattle, said, "In some
jurisdictions in the United States there is a prison culture that tolerates
violence, and it's been there a long time."

This culture has been made worse by the quadrupling of the number of prison and
jail inmates to 2.1 million over the last 25 years, which has often resulted in
crowding, he said. The problems have been compounded by the need to hire large
numbers of inexperienced and often undertrained guards, Mr. Riveland said.

Some states have a hard time recruiting enough guards, Mr. Riveland said,
particularly Arizona, where the pay is very low. "Retention in these states is a
big problem and so unqualified people get promoted to be lieutenants or captains
in a few months," he said.

Something like this process may have happened in Iraq, where the Americans tried
to start a new prison system with undertrained military police officers from
Army reserve units, Mr. Riveland suggested.

When Mr. Ashcroft announced the appointment of the team to restore Iraq's
criminal justice system last year, including Mr. McCotter, he said, "Now all
Iraqis can taste liberty in their native land, and we will help make that
freedom permanent by assisting them to establish an equitable criminal justice
system based on the rule of law and standards of basic human rights."

A Justice Department spokeswoman, Monica Goodling, did not return phone calls on
Friday asking why Mr. Ashcroft had chosen Mr. McCotter even though his firm's
operation of the Santa Fe jail had been criticized by the Justice Department.

Mr. McCotter has a long background in prisons. He had been a military police
officer in Vietnam and had risen to be a colonel in the Army. His last post was
as warden of the Army prison at Fort Leavenworth.

After retiring from the Army, Mr. Cotter was head of the corrections departments
in New Mexico and Texas before taking the job in Utah.

In Utah, in addition to the death of the mentally ill inmate, Mr. McCotter also
came under criticism for hiring a prison psychiatrist whose medical license was
on probation and who was accused of Medicaid fraud and writing prescriptions for
drug addicts.

In an interview with an online magazine, Corrections.com, last January, Mr.
McCotter recalled that of all the prisons in Iraq, Abu Ghraib "is the only place
we agreed as a team was truly closest to an American prison. They had cell
housing and segregation."

But 80 to 90 percent of the prison had been destroyed, so Mr. McCotter set about
rebuilding it, everything from walls and toilets to handcuffs and soap. He
employed 100 Iraqis who had worked in the prison under Saddam Hussein, and paid
for everything with wads of cash, up to $3 million, that he carried with him.

Another problem, Mr. McCotter quickly discovered, was that the Iraqi staff,
despite some American training, quickly reverted to their old ways, "shaking
down families, shaking down inmates, letting prisoners buy their way out of
prison."

So the American team fired the guards and went with former Iraqi military
personnel. "They didn't have any bad habits and did things exactly the way we
trained them."

Mr. McCotter said he worked closely with American military police officers at
the prison, but he did not give any names.

================================================================================

* * *


ARREST IN BOMBING INQUIRY WAS RUSHED, OFFICIALS SAY

By Sarah Kershaw and David Johnston

PORTLAND, Ore., May 7 -- The authorities arrested a Portland lawyer in
connection with the Madrid railway bombings before they had a clear idea about
the strength of their case and they cut short a planned covert surveillance of
him because of concerns that information was leaking out to the news media, law
enforcement officials said Friday.

On Thursday the F.B.I. arrested the lawyer, Brandon Mayfield, 37, on a material
witness warrant in connection with the attacks, which killed 191 people on March
11. Mr. Mayfield, who practices immigration and family law, is a former Army
lieutenant and a convert to Islam.

The law enforcement officials said they were afraid that Mr. Mayfield, who is
originally from Kansas, might become a fugitive if he knew he was under
suspicion. So monitoring that was just getting started was abruptly halted. Mr.
Mayfield was arrested before investigators had fully examined his phone records,
before they knew if he had ever met with any of the bombing suspects, before
they knew if he had ever traveled to Spain or elsewhere overseas. His relatives
said he had not been out of the United States for 10 years.

The leaks, the officials said, left prosecutors little choice but to hold Mr.
Mayfield as a material witness, which gives investigators more time to assemble
a clearer sense of any role he may have played. But they will have to provide
evidence to a judge to continue to hold him.

F.B.I. officials in Portland declined to comment, other than to repeat what they
said after Mr. Mayfield's arrest, that two search warrants had been served, one
for his home and one for his office.

Information about the authorities' rush to arrest Mr. Mayfield came as new
questions arose about the strength of the evidence against him.

Spanish officials said on Friday that American investigators had apparently
matched Mr. Mayfield's fingerprints to a single print on a plastic bag recovered
from a stolen van used by the bombers. The bag, which held seven copper
detonators like those used on the train bombs, was found at a suburban Madrid
train station hours after the bombings.

A senior Spanish counterterrorism official said that investigators from Spain
and the United States differed on whether the fingerprint on the bag
conclusively matched those of Mr. Mayfield, who was identified to the Spaniards
only as a military veteran who had converted to Islam. Though a Spanish police
report described the forensic evidence as a match, the official said, F.B.I.
officials had raised some questions.

Meanwhile, members of Mr. Mayfield's family were trying to make sense of what
happened. Mr. Mayfield's wife, Mona, and their three children stayed inside
their home in the Portland suburb of Aloha, avoiding a crush of reporters.

Mr. Mayfield's mother, AvNell Mayfield, said in a telephone interview from
Hutchinson, Kan., that F.B.I. agents had searched her son's house, going through
computers and papers and taking Mona Mayfield's credit card. They also froze Mr.
Mayfield's bank accounts and assets, his mother said, and took him to a Portland
jail with no explanation.

"They wouldn't even tell her where Brandon was being held," Mrs. Mayfield said.
"Only after a lot of pleading did they tell her that he was being held as a
material witness."

Mr. Mayfield, who is an American citizen, has a link to one of the six
defendants in a highly publicized case in Portland who were convicted of
conspiring to aid the Taliban and Al Qaeda. He represented one defendant,
Jeffrey Leon Battle, in a custody case involving Mr. Battle's son. Mr. Mayfield
did not represent Mr. Battle in the criminal case.

Only a few weeks ago, AvNell Mayfield said, Mr. Mayfield was telling her how
upset he was by the case of Capt. James Yee, a Muslim Army chaplain who had been
accused of espionage before charges were dropped. Captain Yee and Mr. Mayfield
had both been stationed at Fort Lewis in Washington State and had crossed paths
while stationed in Germany, she said.

"He thought that was so unfair, that our government could ruin a person like
that and no public apologies were made," Mrs. Mayfield, a seventh-grade art
teacher, said. "I never thought it would happen to my family."

AvNell Mayfield, who was planning to fly to Portland on Saturday, said she had
not spoken to her son, only to his wife. She said Mona Mayfield had not yet been
permitted to speak with her husband.

"People who grew up with Brandon or met him, went to school with him, served in
the military with him -- they all know that this is an outrage," she said. "He's
not this wicked, evil, bombing, child-killing person. There is a person behind
that face on the news who is being torn apart."

Mr. Mayfield was raised in a farmhouse in Halstead, about 25 miles from Wichita,
one of three boys born to his parents. He grew up with half-siblings and
stepsiblings, too, after his parents divorced.

After high school, Mr. Mayfield served for eight years in the Army before being
honorably discharged as a second lieutenant at Fort Lewis, his mother said. Mr.
Mayfield met Mona, an Egyptian, while at Fort Lewis. When they married in 1989,
he converted to Islam, and he is a member of a Portland-area mosque.

Mr. Mayfield was admitted to the Oregon bar in 2000 and has a small practice in
Beaverton. He has mostly taken custody cases and has worked several cases on a
pro bono basis, representing poor clients.

A decade ago he found a mentor in Thomas H. Nelson, a Portland lawyer who is
also a Muslim. He called Mr. Nelson after his arrest, and Mr. Nelson has been
vocal about what he calls a bogus case. "Being associated with terrorism is
something that can certainly grab the public's attention," Mr. Nelson said.
"That association was leaked to the media in an utterly dangerous fashion."

Tim Golden contributed reporting from New York for this article and Brian Libby
from Portland.

* * *


May 7, 2004

A PRESIDENT BEYOND THE LAW

By Anthony Lewis

http://www.nytimes.com/2004/05/07/opinion/07LEWI.html

CAMBRIDGE, Mass.

The question tears at all of us, regardless of party or ideology: How could
American men and women treat Iraqi prisoners with such cruelty -- and laugh at
their humiliation? We are told that there was a failure of military leadership.
Officers in the field were lax. Pentagon officials didn't care. So the worst in
human nature was allowed to flourish.

But something much more profound underlies this terrible episode. It is a
culture of low regard for the law, of respecting the law only when it is
convenient.

Again and again, over these last years, President Bush has made clear his view
that law must bend to what he regards as necessity. National security as he
defines it trumps our commitments to international law. The Constitution must
yield to novel infringements on American freedom.

One clear example is the treatment of the prisoners at Guantanamo Bay, Cuba. The
Third Geneva Convention requires that any dispute about a prisoner's status be
decided by a "competent tribunal." American forces provided many such tribunals
for prisoners taken in the Persian Gulf war in 1991. But Mr. Bush has refused to
comply with the Geneva Convention. He decided that all the Guantanamo prisoners
were "unlawful combatants" -- that is, not regular soldiers but spies,
terrorists or the like.

The Supreme Court is now considering whether the prisoners can use American
courts to challenge their designation as unlawful. The administration's brief
could not be blunter in its argument that the president is the law on this
issue: "The president, in his capacity as commander in chief, has conclusively
determined that the Guantanamo detainees . . . are not entitled to prisoner-of-
war status under the Geneva Convention."

The violation of the Geneva Convention and that refusal to let the courts
consider the issue have cost the United States dearly in the world legal
community -- the judges and lawyers in societies that, historically, have looked
to the United States as the exemplar of a country committed to law. Lord Steyn,
a judge on Britain's highest court, condemned the administration's position on
Guantanamo in an address last fall -- pointing out that American courts would
refuse even to hear claims of torture from prisoners. At the time, the idea of
torture at Guantanamo seemed far-fetched to me. After the disclosures of the
last 10 days, can we be sure?

Instead of a country committed to law, the United States is now seen as a
country that proclaims high legal ideals and then says that they should apply to
all others but not to itself. That view has been worsened by the Bush
administration's determination that Americans not be subject to the new
International Criminal Court, which is supposed to punish genocide and war
crimes.

Fear of terrorism -- a quite understandable fear after 9/11 -- has led to harsh
departures from normal legal practice at home. Aliens swept off the streets by
the Justice Department as possible terrorists after 9/11 were subjected to
physical abuse and humiliation by prison guards, the department's inspector
general found. Attorney General John Ashcroft did not apologize -- a posture
that sent a message.

Inside the United States, the most radical departure from law as we have known
it is President Bush's claim that he can designate any American citizen an
"enemy combatant" -- and thereupon detain that person in solitary confinement
indefinitely, without charges, without a trial, without a right to counsel.
Again, the president's lawyers have argued determinedly that he must have the
last word, with little or no scrutiny from lawyers and judges.

There was a stunning moment in President Bush's 2003 State of the Union address
when he said that more than 3,000 suspected terrorists "have been arrested in
many countries. And many others have met a different fate. Let's put it this
way: They are no longer a problem for the United States."

In all these matters, there is a pervasive attitude: that to follow the law is
to be weak in the face of terrorism. But commitment to law is not a weakness. It
has been the great strength of the United States from the beginning. Our leaders
depart from that commitment at their peril, and ours, for a reason that Justice
Louis D. Brandeis memorably expressed 75 years ago.

"Our government is the potent, the omnipresent teacher," he wrote. "For good or
ill, it teaches the whole people by its example. Crime is contagious. If the
government becomes a lawbreaker, it breeds contempt for the law; it invites
every man to become a law unto himself."

Anthony Lewis is a former Times columnist.

* * *


May 5, 2004

IRAQI DETAINEES PROTEST AS MEDIA TOURS PRISON

By Dexter Filkins

http://www.nytimes.com/2004/05/05/international/middleeast/05CND-PRIS.html

ABU GHRAIB, Iraq, May 5 -- A guided tour of the American military prison here
today got off to an unexpected start.

As a group of Iraqi and Western reporters stepped off their bus and onto the
prison grounds, hundreds of Iraqi detainees leaped to their feet and rushed from
their tents to the razor wire fence. The men began to shout, wave their arms and
wail.

Some peeled off their shirts and twirled them over their heads. One detainee
yanked off his artificial leg and held it in the air.

"Where is the freedom, Bush?" the one-legged man cried through the fence. "Is
this freedom?"

As the crowd gathered, another Iraqi produced a bullhorn, issuing his complaints
in flawless English.

"The problem of the Iraqi prisoners isn't only what is written in the news," the
man said. "Iraqi prisoners need freedom, their dignity and their rights."

With that, the American commanders, who said they had wanted to demonstrate the
openness with which they treated Iraqi prisoners, decided after a few minutes
that it was time to move to the next stop on the tour.

"Please follow the rules," said Maj. Gen. Geoffrey D. Miller, the commandant of
Abu Ghraib prison, leading the reporters back inside. "Get back on the bus."

So began the American military's official attempt to respond to the abuses of
Iraqi detainees, captured graphically in a series of photographs taken at Abu
Ghraib, that have sparked outrage across the Arab world. American officers in
charge of the prison spent much of the day demonstrating how such things could
never happen again.

Under an afternoon sun, American officers led reporters along razor wire fences
that enclose the 3,800 Iraqi detainees in their tent cities. They opened up the
cell block where the abuses and humiliations were believed to have unfolded.
They swung open the doors on the interrogation rooms, offering assurances that
nothing untoward ever happened inside.

The American officials announced some concrete steps as well: the International
Committee on the Red Cross, which has sometimes clashed with American commanders
over the treatment of prisoners, would be free to open a monitoring office
inside the jail. In two weeks, prisoners would begin moving to new quarters with
concrete and wooden floors and fans for the summer heat. General Miller said he
was considering doing away with as many as 10 of the most aggressive techniques
used by American interrogators.

And in the first of many such statements by American officials today, General
Miller said he was sorry to the Iraqi people for the abuses that were allowed to
go on inside the prison.

"I would like to apologize for our nation and for our military for the small
number of soldiers who committed illegal or unauthorized acts here at Abu
Ghraib," General Miller told the reporters following a tour of the prison.
"These are violations not only of our national policy but of how we conduct
ourselves as members of the international community."

He added, "I will personally guarantee that this will not happen again."

General Miller's apology was one of several American efforts today to mollify
Iraqis angered by the humiliations depicted in the photographs. A senior
American commander said that officers had been ordered to send their soldiers
into the streets to assure Iraqis that what happened at Abu Ghraib clashed with
everything the American Army stood for.

Brig. Gen. Mark Kimmitt, the spokesman for the American military here, delivered
a powerful and unqualified public apology.

"My Army has been embarrassed by this," he said at a briefing for the press. "My
Army has been shamed by this. And on behalf of my Army, I apologize for what
those soldiers did to your citizens. It was reprehensible and it was
unacceptable."

Later, in response to another question about the abuse, General Kimmitt said:
"That will be a black mark on the United States Army for years to come. But
please understand that that is a small number of soldiers doing the wrong thing.
They do not reflect the 150,000 coalition soldiers and the 130,000 American
soldiers and marines that are out there every day providing security for your
nation.

"They feel as ashamed as I do. They feel as embarrassed as I do. We came here to
help."

It was unclear, at least immediately, how the apologies would be received by the
Iraqis. Both General Kimmitt and General Miller contended with angry questions
from Iraqi reporters, some of them demanding to know whether the United States
would continue to humiliate their fellow Iraqis. Outside the walls of Abu Ghraib
prison this morning, several hundred Iraqis protested the treatment of Iraqi
prisoners.

"Democracy doesn't mean killing innocent people," one of the placards read.

The protest was organized by the Association of Muslim Scholars, a group of
Sunni Muslim religious leaders with an increasingly powerful voice in Iraq.
Muthana Hareth al-Dhari, a spokesman for the group, said it had several demands,
including full investigations of the abuse, compensation to victims and a
greater role for Iraqi officials in the prison system.

"There have been serious violations of human rights," he said, adding that the
group has tried repeatedly to raise the issue of ill-treatment in the American-
run prisons.

Inside the gates, the tour offered a glimpse of the gritty details of prison
life. Nearly all of the 3,800 Iraqi detainees live in tents, where they often
share space with more than 25 people. Most inmates live in yards containing
about 400 prisoners, each sealed off with razor wire. There are special cells
for women, of whom there are only 5, "high risk" prisoners, of whom there are
19, and a separate camp for 450 detainees deemed likely to have the most
information desired by the United States.

The interrogation cells, swung open for display, seemed sterile in their
emptiness. Each room, about the size of a walk-in closet, contained a plastic
table and folding chairs, a remote control for the air conditioning, and a large
metal eye-bolt protruding from the floor, used to restrain prisoners. Each room
has a pane of one-way glass, allowing American officers to check on the progress
-- and, they say, the propriety -- of an interrogation.

"I can look in on an interrogation anytime I want," said Col. Foster Payne, who
heads the interrogations at the prison.

With General Miller promising to reduce the population at Abu Ghraib by more
than half, his subordinates said that would mean quicker releases in the future.
General Miller said the average stay for an Iraqi who has been brought to Abu
Ghraib on suspicion of engaging in anti-coalition activities was between four
and six months.

"I have been here for five months, and I haven't seen my children!" wailed an
Iraqi woman through the bars of her cell, contained in the same wing where the
Iraqi prisoners had been abused. "I'm not part of the resistance."

For all the anger generated by the abuse of the prisoners, and for all the shame
it has caused the soldiers, there were signs that the bonds between Iraqi and
Americans was not irretrievably broken.

On a bed in the prison hospital lay an Iraqi man badly injured in one of the
recent mortar attacks carried out by insurgents. The man's right leg was set in
a large metal brace, and his face was tight with pain.

On the bed next to him sat an American nurse, singing softly to comfort him.

"Happy birthday to you," she sang. "Happy birthday to you."

* * *


May 4, 2004

WARDEN PLANS TO REDUCE SIZE OF IRAQI PRISON
By Dexter Filkins

http://www.nytimes.com/2004/05/04/international/middleeast/04CND-WARD.html

BAGHDAD, Iraq, May 4 -- The American commander in charge of military jails in
Iraq said today that he had decided to dramatically reduce the size of the Abu
Ghraib prison, the site of the suspected abuse of Iraqi prisoners, and to end
some of the more coercive practices used against Iraqi detainees.

Gen. Geoffrey D. Miller, chief of detentions and interrogations in Iraq, said he
planned to reduce the number of prisoners held at Abu Ghraib by about half its
current level, from 3,800 to less than 2,000. The overcrowding at Abu Ghraib,
where the population has sometimes swelled well past 6,000, was cited by
American investigators as having contributed to the chaotic and sometimes
abusive atmosphere that prevailed there.

In a wide-ranging interview in Baghdad, General Miller said he had banned the
practice of hooding Iraqi prisoners while they are moved from one jail to
another, largely because it was humiliating to Iraqi prisoners.

But practices like hooding, depriving prisoners of sleep and forcing them into
"stressful positions" were legitimate means of interrogation, the general said,
and among the 50-odd coercive techniques sometimes used by American soldiers
against enemy detainees.

"There are interrogation techniques that increase anxiety," General Miller said.
"For example sleep deprivation, and stress positions and all that, could be used
but they must be authorized."

General Miller said he decided to ban the practice of hooding just four days
ago, following reports of abuse and the humiliation of Iraqi prisoners.

"It sends a message we do not want to send to the civilian population," General
Miller said. "If we were going to continue to use hooding, we would use a less
intrusive method that will accomplish the same thing."

But General Miller, the chief of detentions and interrogations at the American
prison in Guantanamo Bay, said he hoped to make the base a model for military
prisons in Iraq. In both places, he said he saw his main purpose as extracting
as much intelligence as possible to help the American war effort.

"We were enormously proud of what we had done in Guantanamo, to be able to set
that kind of environment where we were focused on gaining the maximum amount of
intelligence," said General Miller, who added that he recently emphasized the
message in meetings with American soldiers at Abu Ghraib.

"What I told them was, we are here to be able to enable our forces to win this
fight that is ongoing," he said. "Everything we do, we'll do. At the end of the
day, you better make sure that what we've done will make America proud."

General Miller, who took over in Iraq about one month ago, said he first came to
Iraq last August with a team of about 30 experts to recommend ways of making the
detentions and interrogations "more effective and more efficient." One of those
recommendations, he said, was to give the military police assigned to guard the
Iraqi detainees a more active role in gathering intelligence.

It is a team of military police at Abu Ghraib that are accused of abusing and
humiliating the Iraqi prisoners. General Miller said he did not believe that his
recommendations contributed to the atmosphere that enabled the group of military
police officers to abuse the Iraqi prisoners.

* * *



May 4, 2004

MILITARY DEFENDERS FOR DETAINEES PUT TRIBUNALS ON TRIAL
By Neil A. Lewis

WASHINGTON, May 3 -- The Bush administration's plan to use military tribunals to
try some of the detainees held at Guantanamo Bay, Cuba, which has faced
considerable skepticism, has been receiving some of its sharpest attacks from
the military defense lawyers who are participating in the process.

Senior government planners once expected that the first of the prisoners to go
before a tribunal would plead guilty as part of an agreement to reduce their
jail time. But the five military lawyers assigned to defend the first group of
prisoners have radically altered that hope, the officials now acknowledge.

The uniformed lawyers have been especially forceful, not only in asserting their
clients' innocence but also in denouncing the tribunal system as inherently
unfair and rigged.

The Pentagon wants the military commissions, the first for the United States
since the end of World War II, to be seen as fair at home and abroad. But the
military lawyers, in playing the kind of attack-the-system role that William
Kunstler was known for, have become widely quoted around the world and acclaimed
by some as heroes after appearances in London and Australia in which they
denounced the tribunals.

Nonetheless, senior military officials said that while they disagreed with the
view that the tribunal system is unfair, they had no problem with the defense
lawyers' making harshly critical comments.

Last month, an audience at Oxford University in England was stunned, witnesses
said, when two of the lawyers, Lt. Cmdr. Charles Swift of the Navy and Maj. Mark
Bridges of the Army, said the tribunals were not capable of producing a fair and
just result.

The several hundred people who had gathered for a talk about the Guantanamo
detention facility did not expect to hear the American officers' objections.

Murray Wesson, a Rhodes Scholar from South Africa who attended, wrote on his Web
log: "What I was unprepared for, given that these were, after all, military
lawyers, was how critical of the process they were. Indeed, they went so far as
to describe the tribunals as 'fundamentally flawed' and insinuated that they
would not amount to fair trials."

The day before the Oxford event, Maj. Michael Mori of the Marines, another
defense lawyer, said at a London news conference, "The system is not set up to
provide even the appearance of a fair trial."

Michael Ratner, the president of the Center for Constitutional Rights, who was
at the event in Oxford, said he was surprised by the public tactics of the
military lawyers.

"These folks have been amazing. It's just something I never expected," said Mr.
Ratner, whose group, based in New York, is challenging the Guantanamo detentions
in federal court. "I always assumed that the prisoners would get an adequate
defense, but they're denouncing the entire system with public press
conferences."

The rules for the tribunals, released in the spring of 2002 after intense
internal debate among lawyers in the administration, provide for defendants to
have military lawyers at government expense and also hire their own civilian
lawyers at their own expense.

The crimes the suspects may be charged with are crimes of war, as well as aiding
the enemy and spying. The accused may present evidence at their trials and
cross-examine witnesses for the prosecution. Conviction requires a vote of two-
thirds of the tribunal. The death penalty requires a unanimous vote.

The feature of the commission that has drawn the most criticism is that there is
no provision for any review outside the military.

Major Mori, who represents an Australian detainee, has become a minor celebrity
in Australia, where he has visited and where his interviews with Australian
reporters based in the United States appear regularly. One such reporter, Karl
Stefanovic of Channel Nine, a major national network, said news accounts had
compared Major Mori to Tom Cruise, who played a valiant military defense lawyer
at Guantanamo in the film "A Few Good Men."

"When people hear him talk for the first time, they are quite surprised at the
way he openly attacks the system," Mr. Stefanovic said.

Lt. Col. Sharon Shaffer, who was a judge in the Air Force until being assigned
to defend a Sudanese detainee, said she had told audiences of her "great
concerns about whether he can receive a fair trial with rules that are written
that are twisted against the defense."

Like the other defense lawyers, she was critical of rules requiring that motions
do not go to the panel of judges "but to the same officer who approved the
charges in the first place."

That person, Brig. Gen. Thomas L. Hemingway of the Air Force, said in an
interview that he believed that the rules were fair but that "I don't object to
defense counsel challenging the system. Their job is to zealously defend their
client."

Colonel Shaffer, like her colleagues, said she did not worry that her comments
could harm her career. "I'm just being a staunch supporter of the Constitution
and its notions of fairness," she said.

Col. Will Gunn, an Air Force lawyer who is the chief defense counsel, said that
he had heard criticism from other officers who did not understand the special
task a lawyer has in zealously defending a client.

Lt. Cmdr. Philip Sundel of the Navy, one of the lawyers, has complained that the
tribunal process lacks the needed checks and balances to be fair.

Commander Swift said he worried that his client, a 34-year-old Yemeni named
Salim Ahmed Hamdan, was suffering psychologically from being kept in isolation.
He said that Mr. Hamdan had been in Afghanistan trying to get to Tajikistan to
fight against the government on behalf of Muslims. When he could not get there,
he found a job on Osama bin Laden's property near Kandahar, Afghanistan. In the
turmoil following the attacks of Sept. 11, 2001, he borrowed a car to take his
pregnant wife and daughter to safety in Pakistan. Upon Mr. Hamdan's return,
Commander Swift said, he was arrested by Afghan forces.

Last month, Commander Swift filed the first lawsuit on behalf of a detainee
directly challenging the military tribunal system. It asserts that the Bush
administration's plans for his client violate the Constitution, federal law and
the nation's obligations under the Geneva Conventions.

* * *


April 26, 2004

'ENEMY COMBATANTS' IN COURT

http://www.nytimes.com/2004/04/26/opinion/26MON1.html?ex=1083556800&en=
d23e1a9ab05ce2f3&ei=5062

The Supreme Court hears arguments this week in two cases involving Americans who
are being held indefinitely, without the right to see a lawyer, simply because
they have been designated "enemy combatants." The Bush administration, ignoring
basic constitutional principles, argues that because the detentions are military
decisions made in wartime the courts have no authority to second-guess them.
These are historic cases that could shape the post-9/11 legal landscape for
years to come. The Supreme Court should send a strong message that even during a
war on terrorism, the government cannot strip citizens of their most basic
rights.

Jose Padilla and Yaser Esam Hamdi have been held in a military brig for about
two years without being charged with a crime. Mr. Padilla was arrested at O'Hare
International Airport in Chicago, suspected of involvement in a "dirty bomb"
plot. Mr. Hamdi was captured by the Northern Alliance in Afghanistan. The
government has labeled both men enemy combatants, but in each case the evidence
was scant. For Mr. Hamdi, the government relied on a Pentagon official's nine-
paragraph description of his capture. For Mr. Padilla, it used confidential
sources of uncertain reliability. The government sets a frighteningly low
standard for itself, saying it needs only "some evidence" that a citizen has
"associated" with a terrorist organization "bent on hostile acts" to hold him
indefinitely.

Citizens can be deprived of their liberty only on the basis of a properly
enacted law, after a judicial trial that meets minimum standards of due process.
Once a citizen's liberty has been taken away, he is entitled to challenge his
imprisonment in a habeas corpus proceeding. These rights all apply to Mr.
Padilla and Mr. Hamdi, and they have all been violated.

President Bush asserts that he can circumvent these constitutional protections
simply by invoking his military powers, but that is inconsistent with the law,
and with fundamental American values. In the Declaration of Independence, the
Founders criticized the king of England for "render[ing] the Military
independent of and superior to the Civil Power." In establishing the American
system, they made clear that civil authority had supremacy over military
authority. The Supreme Court recognized this principle in a landmark Civil War-
era case, Ex parte Milligan, in which it held that if civilian courts are open
and functioning, they, not the military, must try American citizens.

The significance of the cases goes well beyond the two prisoners, and the
consequences of a ruling for the government are frightening. Mr. Padilla's
lawyers do not exaggerate when they tell the court that if their client loses,
"it would mean that for the foreseeable future, any citizen, anywhere, at any
time, would be subject to indefinite military detention on the unilateral order
of the President." That formula for totalitarianism has never been the law in
America. It is up to the Supreme Court to ensure that it does not become the law
now.

* * *


April 25, 2004

SECRET JUSTICE
Terror Suspect's Path From Streets to Brig

By Deborah Sontag

http://www.nytimes.com/2004/04/25/national/25PADI.html

About 10 months after Jose Padilla disappeared into a naval brig in South
Carolina, a Pentagon official appeared at his mother's workplace in Florida with
a greeting card. When Estela Ortega Lebron saw the familiar pinched handwriting,
she trembled, knowing, before even reading the card, that it was for real, the
first evidence of her son's existence since he was seized by the American
military in June 2002.

"In the name of God the merciful the mercy giver," Mr. Padilla wrote, "I have
been allowed to write you a card and just letting you know I'm doing fine and in
good health. Do not believe what is being said about me in the news it is untrue
and I pray that we can have a reunion. Love your son Pucho." Pucho was Mr.
Padilla's childhood nickname.

That card was the sum and substance of Mr. Padilla's communication with the
outside world for about 21 months. Brooklyn-born and Chicago-bred, a Muslim
convert of Puerto Rican descent, Mr. Padilla, 33, was first arrested at O'Hare
International Airport in May 2002. A month later, President Bush took the
extraordinary step of declaring him an "enemy combatant," and the military
placed Mr. Padilla, whom the government accused of plotting a radiological
"dirty bomb" attack, in solitary confinement.

Last month, more than a year after a federal judge ordered the government to
permit Mr. Padilla to see his lawyers, the government relented. It did not allow
a traditional attorney-client meeting, though. Military officials hovered and a
videocamera recorded the encounter.

The government also acceded to a longstanding request from the International
Committee of the Red Cross for a private visit with Mr. Padilla, and the visit
itself was something of a milestone. Until this year, the International Red
Cross, which visits prisoners of war and political prisoners around the world,
had never intervened in the detention of an American by Americans in America.

Mr. Padilla's detention confounds traditional notions of the way justice works
in America. His case, which goes before the Supreme Court on Wednesday, is
shrouded in secrecy. No charges have been filed against him. And the government
has offered just a hint of any evidence it has, asking the courts to defer to
its judgment that, as Mr. Bush proclaimed, "this guy Padilla's a bad guy."

In Plantation, Fla., Mr. Padilla's mother, a condo owner, churchgoer and sales
consultant for a human resources company, is as baffled as she is distressed.
"Why are they doing this to an American?" she asked. "If we go to all these
other countries to promote democracy -- hello? -- why can't we practice it at
home? I'm like, 'Give me proof.' If my son did something, charge him. Give him
his day in court."

The Bush administration says that the norms of criminal justice do not apply
here, that the government has moved from a peacetime to a wartime footing. It is
within the wartime authority of the president as commander in chief, the
government says, to detain Mr. Padilla indefinitely in order to interrogate him
and prevent him from engaging in terrorism.

Padilla v. Rumsfeld raises fundamental questions about presidential power and
the checks and balances on that power during the campaign against terror.
Lawyers on both sides agree that this is one of the most important cases of its
kind in at least 50 years. Yet Mr. Padilla himself has been little more than a
fuzzy image in a grainy photo, and the process by which the government decided
to detain him without trial has been opaque.

Now Mr. Padilla's mother, his ex-wife in Florida, his second wife in Egypt and
friends have broken their anxious silence. Together with accounts from former
and current government officials and court papers, they trace Mr. Padilla's
journey from Pentecostal child preacher to Muslim convert to suspected
terrorist, from a Taco Bell in Davie, Fla., to a pilgrimage site in Mecca to the
Charleston, S.C., brig.

The Allegations

That journey covered significant territory, geographically, emotionally and
spiritually, and family and friends paint a vivid picture of Jose Padilla. If he
lived a double life, they were unaware of it. And the American government has
said so little beyond its initial, startling allegations about Mr. Padilla that
it is difficult to reconcile the two portrayals -- the man his relatives thought
they knew and the man the government calls an enemy of his homeland.

Attorney General John Ashcroft announced Mr. Padilla's capture from Moscow on
June 10, 2002, saying that an "unfolding terrorist plot to attack the United
States by exploding a radioactive dirty bomb" had been disrupted, an attack with
the potential to cause "mass death and injury."

Later, other officials emphasized that the "unfolding terrorist plot" had not
progressed beyond "loose talk," as Paul D. Wolfowitz, the deputy secretary of
defense, put it.

The government has asked the public and the courts to accept that Mr. Padilla
would not be locked up incommunicado if he were not a danger to national
security and a highly valuable intelligence source. One of Mr. Padilla's
lawyers, Donna R. Newman, calls it the "because-we-say-so doctrine."

The central allegations against Mr. Padilla are contained in one unsealed
memorandum, a declaration by Michael H. Mobbs, a Pentagon official. Mr. Padilla,
the memo says, is an associate of Al Qaeda who, in travels to Afghanistan and
Pakistan, met with senior Qaeda officials, trained in wiring explosives,
"researched" dirty bombs, concocted plans for attacks on the United States and,
"it is believed," returned to the United States to "conduct reconnaissance
and/or attacks" on behalf of Al Qaeda.

The declaration was based on Mr. Mobbs's review of reports from "multiple
intelligence sources." In a footnote, Mr. Mobbs said that two of those sources
might not have been "completely candid" and might have tried to provide some
disinformation. One source recanted some information, and another was being
treated "with various types of drugs" for a medical condition. But, the footnote
continued, much of their information checked out.

The Mobbs declaration omitted one piece of information from a sealed warrant
used for Mr. Padilla's arrest. On the request of Mr. Padilla's lawyers, a
federal judge unsealed it:

Mr. Padilla, in the opinion of the government's informants, was unwilling to die
for the cause.

Crime and Conversion

Born in Cumberland Hospital in Brooklyn, raised alongside four siblings in
working-class Chicago, Jose Padilla looks like a handsome, confident, ordinary
boy in family photos. He wears a powder-blue suit for Christmas at 10, a top hat
and tails for a cousin's cotillion at 12, a Chicago Cubs uniform for a mock
Sport magazine cover at 19.

The photos do not show his teenage stumbling, of which there was plenty. Mr.
Padilla, who grew up without his father, hung out on the streets, flashed gang
symbols, drank. At 14, he got involved disastrously with an older friend in a
murder that began as a petty robbery.

Mr. Padilla and his friend were drinking on a street corner in Chicago when they
decided to rob a couple of Mexican immigrants. The immigrants put up a fight and
chased them until Mr. Padilla's friend tired of running and, for the net gain of
a watch and about $9 in pesos, stabbed one of the immigrants, Elio Evangelista,
to death.

Mr. Padilla then kicked the victim in the head "because he felt like it,"
according to his juvenile records. Mr. Padilla was placed in juvenile detention
until he was 19.

When Mr. Padilla was 19, his first son, Joshua, was born. Soon afterward, he
left town, following his mother, who suffered from arthritis, to South Florida.

In about 1991, Mr. Padilla met Cherie Maria Stultz, a soft-spoken, formally
courteous woman who had immigrated from Jamaica as a child. The attraction, Ms.
Stultz said in an interview, was physical. She was drawn to his eyes and to his
build. They started dating. Ms. Stultz was working at a Burger King, and Mr.
Padilla at a hotel. They went to the movies a lot.

Several months after they met, Mr. Padilla, who was 20, got into a traffic
dispute on a thoroughfare in Broward County, according to law enforcement
records. He cut off another driver and, for punctuation, flashed a revolver at
him.

The other driver, trying to read Mr. Padilla's license plate, then followed him
to a gas station. Mr. Padilla responded by firing off a single shot -- into the
air, he later told the police. He was charged with three felony counts and sent
to the Broward County jail.

A few months into his detention, Mr. Padilla got aggressive with a guard and was
charged with battery on a law enforcement officer. He told Ms. Stultz during a
visit that he had done something he regretted, and he vowed to turn his life
around.

"He was upset at himself for getting into trouble again," said Ms. Stultz, now
36. "He wanted to stop -- stop all that and make a better place for himself in
the world."

Still in jail, Mr. Padilla began fasting, working out compulsively and reading
the Bible from cover to cover, Ms. Stultz said. One day, he told her about a
kind of out-of-body experience accompanied by a couple of visions. In one, he
saw a man in a turban surrounded by the dust of the desert. In the other, he saw
a beautiful woman in a dark corridor at the end of which was a door with
"crystal, loving light" peeking out from beneath. He wanted to go through the
doorway but the woman told him he was not ready. "Those two dreams made him
change his way of life," Ms. Stultz said.

Pleading guilty to both sets of charges, Mr. Padilla got out of jail after 10
months. It was the summer of 1992, he was 21, and he did not end up behind bars
again until the F.B.I. took him into custody nearly 10 years later. He also did
not, as Mr. Ashcroft stated, travel to Afghanistan and Pakistan "subsequent to
his release from prison." He spent the six years after his release -- from jail,
not from prison -- living in Florida.

On his release, Mr. Padilla applied for a job at the Taco Bell in Davie where
Ms. Stultz worked. Muhammed Javed, a Pakistani-American and co-founder of the
Broward School of Islamic Studies, was the manager. He hired Mr. Padilla on his
girlfriend's recommendation, and never regretted it.

For more than two years, Mr. Padilla received deliveries, threw away boxes and
prepared food alongside Ms. Stultz, and both were excellent employees, Mr. Javed
said in an interview at an IHOP near the Taco Bell.

Ms. Stultz expressed an interest in Islam, Mr. Javed said. "I told her I
couldn't discuss religion at Taco Bell," he said. Mr. Javed invited her to his
home, where his wife gave classes in the scriptures to women. Occasionally Mr.
Padilla accompanied her, until Mr. Javed's wife suggested that he go to the
mosque with the men.

When he saw men there wearing turbans, he remembered his vision and "felt that's
where he belonged," Ms. Stultz said. "He's the type of person where he needs a
dominant thing to keep him from going astray. He stopped drinking alcohol and
removed pork from his diet."

That they both accepted Islam touched Mr. Javed considerably. "If I could
describe the feeling in Muslims when you find a convert," he said, "I would
describe it as right to the heavens."

Ms. Stultz and Mr. Padilla lived humbly, working at a variety of jobs that paid
minimum wage or slightly more. With the exception of traffic infractions, Mr.
Padilla kept out of trouble with the law. He became a quiet, studious regular at
Arabic and scripture classes at the Darul Uloom mosque in Pembroke Pines and
then at Masjid Al-Iman in downtown Fort Lauderdale.

Maulana Shafayat Mohammed, the Trinidadian-born imam at Darul Uloom who is known
for preaching against the misuse of Islamic teachings to justify violence,
described Mr. Padilla as a student hungry for knowledge, "neither quarrelsome
nor radical but rather willing to listen and obey." Raed Awad, the Palestinian-
born former imam at Masjid Al-Iman, said Mr. Padilla seemed to have taken
religion to heart, perhaps because in his criminal years he had "tried the other
side of society."

In 1994, Mr. Padilla, with "Jose" still tattooed on his right forearm, formally
changed his name to Ibrahim. His family was not thrilled with his conversion.

"I was upset because he joined the Muslim religion," Mr. Padilla's mother, a
Pentecostalist, acknowledged. "This boy grew up in the Christian church. He was
baptized in water and everything. He received the tongues when he was 8 and as a
child preached the word of God. He's crazy about the Lord."

Mrs. Lebron said she grew to respect her son's decision because she wanted to
keep him in her life. It took her a while, though, to get used to seeing him
draped in a red-and-white-checked keffiyeh, and to hearing his stories about
anti-Muslim prejudice. One time, his car was stoned and the windows broken, she
said.

Although they first took out a marriage license in 1991, Ms. Stultz and Mr.
Padilla waited until January 1996 to marry in a quiet ceremony at the Broward
County courthouse. Gradually, perhaps because they were young, inexperienced and
isolated by religion from their families, their relationship grew rocky, Ms.
Stultz said. They sought counseling from Mr. Awad.

In 1998, Mr. Padilla decided that he wanted to immerse himself more fully in the
Arabic language and in Islam. Mr. Awad said it was common for mosques in America
to encourage converts by offering them scholarships to study abroad. At Masjid
Al-Iman, he said, a collection was taken to pay for Mr. Padilla's ticket and
travel expenses.

Mr. Padilla's family thought he was nuts. "I said, 'Why are you going to go to
the Middle East when you have nobody there?' " his mother said. Ms. Stultz was
upset. She told him she would not accompany him. The idea was "too strange," she
said. But she never suspected that he had a hidden agenda. "In his time with me,
I never heard of the word Al Qaeda, never heard of anything terroristic," she
said. (Former administration officials said there was no evidence that Mr.
Padilla was recruited by Al Qaeda in South Florida.)

Right before Mr. Padilla left, Mr. Javed bumped into him at a mosque. Mr.
Padilla told him that he was leaving to teach English in Cairo. "I was baffled,
thinking, 'You yourself don't speak proper English,' " Mr. Javed said. "But I
said, 'O.K., Jose, more power to you.' And then Jose disappeared from the
scene."

An American in Egypt

In Egypt, Mr. Padilla called his wife once a month for the first six months. He
offered little information. He complained about the pollution in Cairo and told
her she would not like it there, she said. Periodically he called his mother,
asking after the family.

Another American convert in Egypt met Mr. Padilla, whom he knew as Ibrahim,
through a friend. "My friend said, 'Here's another brother from the States,' "
the man said in an interview. (The man asked that his name be withheld, saying
that he did not want to attract government scrutiny.)

The American converts tended to congregate in Nasser City, a Cairo suburb, the
man said. Most of them journeyed to Egypt "to experience what everybody calls
the real Islamic experience, to hear the calls to prayer, to pray at the mosque
five times a day as a natural part of life." Mr. Padilla in particular, he said,
"had like a real zeal for knowledge."

After a year or so in Egypt, the man said, Mr. Padilla expressed an interest in
marrying: "He's human, and he's young." At that time, the man was living in a
village outside Tanta in the Egyptian delta. He presented Mr. Padilla to a
villager, Abu Shamia'a, as a suitor for his daughter, Shamia'a, who was then 19.
There was a formal meeting. "You get a bunch of Pepsis and you sit down and the
woman's in the other room," the man said. "Then you go over and take a look and
see if your heart feels something. Ibrahim was interested."

Shamia'a herself was not certain. She now wears black from head to toe, with
only her eyes peeking out. But at that time, she was not even veiled and she did
not know if she wanted to take on a fully religious life. Mr. Padilla suggested
that she ask God for guidance, and after she prayed, she began to feel
differently. "I felt God had sent someone to help me be a better Muslim," she
said last week in an interview in her village.

Abu Shamia'a, a retired laborer, was pleased with the new son-in-law who always
carried a small Arabic-English dictionary to supplement his impressive Arabic.
Mr. Padilla had only $480 in savings, Abu Shamia'a said, so he married his
daughter off not for financial reasons but for religious ones. Mr. Padilla used
to say that time spent away from the Koran was wasted time, Abu Shamia'a said.

In Florida, Ms. Stultz learned of her husband's betrothal from an Egyptian-
American friend. Horrified, she called and pleaded with Mr. Padilla not to
proceed with another marriage. "He said I should go ahead with my life," she
said. "I was sad. I wasn't going to get married again. There was a bond between
us."

Ms. Stultz filed for divorce, calling her marriage "irretrievably broken," and
the marriage was dissolved.

After his second wedding, in July 1999, Mr. Padilla moved his new wife to Cairo,
where he worked days teaching English at a private school and nights as a gym
trainer and martial arts instructor. In early 2000, he traveled to Saudi Arabia
for the hajj, the annual religious pilgrimage to the birthplace of Islam.
Shamia