MISCELLANEOUS NEWS REPORTS * 2004.01.01 to date misc_digest_2004_1.txt * Aljazeera: http://english.aljazeera.net/HomePage * Associated Press (AP): http://www.ap.org/ * Inter Press Service (IPS): http://ipsnews.net/ * Reuters: http://www.reuters.com/ * ABC News (Aus): http://www.abc.net.au/news/ * BBC: http://news.bbc.co.uk/ * CBS: http://www.cbsnews.com/ * CNN: http://www.cnn.com/ * The Age (Melbourne): http://www.theage.com.au/ * Baltimore Sun: http://www.sunspot.net/ * Chicago Tribune: http://www.chicagotribune.com/ * Dawn (Islamabad): http://www.dawn.com/ * Hartford Courant: http://www.ctnow.com/news/ * The Guardian (UK): http://www.guardian.co.uk/guardian/ * Toronto Globe and Mail: http://www.theglobeandmail.com/ * The Independent (UK): http://www.independent.co.uk/ * Los Angeles Times: http://www.latimes.com/ * The Mirror (UK): http://www.mirror.co.uk/ * The Observer (UK): http://www.observer.co.uk/ * Newsweek: http://www.msnbc.com/news/NW-front_Front.asp * San Francisco Chronicle: http://www.sfgate.com/news/ * Sydney Morning Herald: http://www.smh.com.au/ * The Telegraph (UK): http://www.telegraph.co.uk/ ================================================================================ January 31, 2004: HICKS LAWYERS DISPUTE DEATH THREAT http://edition.cnn.com/2004/WORLD/asiapcf/01/30/guantanamo.australian.ap/ GUANTANAMO BAY, Cuba (AP) -- Lawyers for Australian detainee David Hicks denied that he ever threatened to kill an American and say he won't receive a fair trial before a military tribunal. l before a military tribunal. Hicks, a 28-year-old former cowboy who converted to Islam, is one of six prisoners at Guantanamo Bay designated as possible candidates for military tribunals. He was captured by U.S. troops in Afghanistan, allegedly fighting with the Taliban, but what he could be charged with -- and when those charges could come -- remains unclear. Australian defense lawyer Stephen Kenny said accusations by some U.S. officials that Hicks threatened to kill an American are "totally false." He said he expects the charges will be "of a conspiracy nature," though he is barred from discussing the facts of the case. "David Hicks has neither killed nor injured any civilian, nor any U.S. military or Australian military personnel," Kenny told The Associated Press in an interview with Marine Corps Major Michael Mori, Hicks' military-appointed lawyer. The two said they have a great deal of catching up to do since Hicks has been interrogated by the military without the presence of lawyers for two years. "We're trying to prepare the best we can with so much uncertainty," said Mori, who was meeting with Hicks for a fourth time. Mori, formerly a military prosecutor in Hawaii, said the tribunals planned are "definitely not fair" because they lack the protections and independence of other courts. The U.S. Supreme Court has agreed to decide whether those held at Guantanamo should be given access to U.S. courts, and a decision is expected later this year. Mori said part of the problem with the tribunal system drawn up by the Pentagon is that it is very "centrally controlled" and not independent. "We certainly don't want to look back on the history and see what an embarrassment the commissions were," Mori said. "An unfair justice system only risks convicting the innocent and providing the guilty with a valid complaint to attack their conviction." The tribunal consists of three to seven military officers who act as both judge and jury. Convictions must be decided by a majority vote, and a decision to sentence a defendant to death would have to be unanimous. In Hicks' case, U.S. officials have said they will not seek the death penalty. * * * Charleston Post and Courier: January 31, 2004 HAMDI, LAWYER TO MEET FOR FIRST TIME NEXT WEEK By Tony Bartelme, Post and Courier staff http://www.charleston.net/stories/013104/ter_31hamdi.shtml Yaser Hamdi, an American-born Saudi, has been held without charges or access to a lawyer since he was captured in 2001 in Afghanistan. On Tuesday, he will meet his attorney for the first time. Virginia federal public defender Frank Dunham said Friday he will meet with Hamdi at about 8 a.m. at the Navy brig in Hanahan, though it won't be a one-on-one session. Discussions will be monitored by a military representative. Hamdi's case has become a cause celebre among constitutional scholars, along with that of fellow detainee Jose Padilla, the alleged dirty bomber, who also is being held in the brig. The Bush administration has designated Hamdi an enemy combatant, alleging he was a foot solider for the Taliban and should not be entitled to the usual constitutional rights. Dunham, meanwhile, has argued Hamdi's case all the way to the U.S. Supreme Court, accusing the administration of side-stepping the American judicial system. Late last year, the administration relented and agreed to let Hamdi see his attorney but under certain restrictions. Lawyer groups have complained that these restrictions threaten attorney-client privilege. "A lot of lawyers think I shouldn't even go. I feel we have an obligation to see this man. We are in a position we don't have a choice," Dunham told The Associated Press. "The big thing is meeting this guy I've been representing for close to two years." Hamdi was captured in Afghanistan in late 2001 and held in Guantanamo, Cuba, until interrogators discovered he was born in Louisiana and is a U.S. citizen. He was transferred to the Hanahan brig last summer. The Supreme Court said earlier this month it would examine the Bush administration's policy of detaining terrorism suspects without charges. * * * The Australian: January 31, 2004 HABIB TERROR TRIAL CLOSER http://www.theaustralian.news.com.au/common/story_page/ 0,5744,8546592^1702,00.html SYDNEY terror suspect Mamdouh Habib is expected to face a United States military court when US authorities try the next group of prisoners from Guantanamo Bay, Justice Minister Chris Ellison said today. Senator Ellison said Federal Attorney General Philip Ruddock was currently in the United States where he had held discussions with senior administration officials about the war on terror and about Australian detainees David Hicks and Habib. He said a US decision was expected soon. "He (Mr Ruddock) has met with the Attorney General, the director of homeland security, the director of the FBI. It is likely that Mr Habib will be in the next group of people to be listed for trial," he said. "We have always urged that these matters be resolved as quickly as possible, for charges to be laid if they are to be laid. We would certainly welcome any move to resolve this matter." Both Habib and Hicks have been held at the US facility at Guantanamo Bay, Cuba following their arrest, Habib in Pakistan and Hicks in Afghanistan, late in 2001. The government claims both received training by terror group al-Qaeda although the US has yet to outline any allegations against them. Hicks is in the first group of detainees selected to face trial before US Military Commissions. Senator Ellison said the government had pressed the US for them to be treated on the same basis. "We have no reason to believe that they will not be treated on the same basis, that is procedurally and on the provision of lawyers," he said. "The agreement stands that should any other national get a concession which we don't enjoy, the Americans have agreed that that will also be given to Mr Hicks and Mr Habib." Senator Ellison said the procedures for the trial of David Hicks were under way and his lawyers had visited him. "His lawyer has been very vocal," he said. "Part of the rules of the Commissions are that there should be vigorous defence made available. We would expect no less in relation to Mr Habib." Mr Ruddock said the Australian Government had asked for the Hicks and Habib cases to be expedited. "We've been given an assurance that in the further group of detainees likely to be considered for trial, Habib in all likelihood would be included," he said on ABC radio. But he said he still had no idea when they would face charges. Habib's lawyer today slammed the government for allowing him to face a US military tribunal, saying it smacked of Nazi Germany and Soviet Russia. "Nothing comes close to this," Stephen Hopper said. "This is what we would expect if we had a fascist government or in other totalitarian governments." The United States had "kidnapped" Mr Habib in contravention of international law, he said. "I cannot see any difference to what happened in Nazi Germany and Soviet Russia." Mr Hopper pointed out that his client was arrested in Pakistan, not Afghanistan where the US military action in late 2001 took place. The government should be trying to bring him back to Australia, he said. * * * The Australian: January 31, 2004 KIDS 'STILL HELD AT GUANTANAMO' From correspondents in Guantanamo Bay Naval Base, Cuba http://www.theaustralian.news.com.au/common/story_page/ 0,5744,8545245^1702,00.html THE US is still holding juveniles at its prison for terrorist suspects in Guantanamo Bay despite this week's release of the three youngest detainees, officials said today. Human Rights Watch said the United States is violating an international treaty that obligates it to rehabilitate child soldiers. Yesterday the United States freed three boys, believed to be between 13 and 15, but would not say where it sent them. The International Committee of the Red Cross said today that its workers helped reunite the three with their families in Afghanistan, and that they will work with the UN Children's Fund to help them adjust to their new lives. Two of the boys were captured during US and allied raids on Taliban camps during the war in Afghanistan and were imprisoned at Guantanamo in January 2002, while the third was captured trying to obtain weapons for the Taliban and taken to Guantanamo in February 2003, military officials at the camp said in November, indicating the youngest could have been just 11 years old at the time. However, Lt Col Pamela Hart, a spokeswoman for the detention mission, said yesterday that all three came to the base in February 2003. It was not possible to get clarification of the discrepancy immediately. Military officials said the boys were kept apart from adult detainees, and were given psychiatric counselling and lessons, including in English, and allowed to play soccer and board games and watch videos. But other juveniles aged 16 and 17 are being held among the approximately 650 other detainees from about 40 countries, whose exercise periods are limited and whose sole diversion is books. "There is still a small group of juveniles under 18 at Guantanamo," said Amanda Williamson of the ICRC's office in Washington, DC. The Department of Defence has confirmed that an unspecified number of 16- and 17-year-olds are in detention, and Jo Becker of Human Rights Watch said the Pentagon had said there are "a handful". "Guantanamo is not really an appropriate place to detain juveniles because they're taken so far from their culture and are unable to benefit from the support of their families," said Williamson. Her ICRC organisation is the only independent group allowed to visit the detainees. Pressure has been mounting on US officials to release the juveniles or transfer them to another facility. Maj Gen Geoffrey Miller, who is in charge of the detention mission, recommended in August that the three youngest boys be sent home, saying they "were kidnapped into terrorism (by) despicable people who are using juveniles as a part of this scourge of terrorism". One boy said he was conscripted into an anti-American militia group and the second said he was abducted by the Taliban and forced to fight, Hart said. She said the third boy said he was studying at a mosque where he was told that killing Americans would win him a better place in heaven, and was captured while trying to obtain weapons from the Taliban. Military officials said the boys had provided viable intelligence but had no further value and were no longer a threat to the United States. Human Rights Watch asked when the other juveniles would be freed. Becker said that the United States was violating the Optional Protocol to the Convention on the Rights of Children, which it ratified in December 2002. The treaty establishes 18 as the minimum age for participation in armed conflict and obligates governments to rehabilitate former child soldiers, Becker said. US military officials call all the detainees "illegal enemy combatants" and say they are being treated humanely and in accordance with international agreements. Critics say the detainees' rights are being violated because they are not allowed to see lawyers and have not been charged. There have been more than 30 suicide attempts at the prison, an apparent sign of hopelessness at the prolonged detentions with no word on what the future may hold. * * * January 30, 2004 - Page A20 MILITARY RELEASES THREE TEEN DETAINEES AT GUANTANAMO By Charlie Savage, Globe Staff http://nl.newsbank.com/nl-search/we/Archives ?p_action=doc&p_docid=100699928F9161EF&p_docnum=1 WASHINGTON - The US military announced yesterday that it has released three teenagers held at Guantanamo Bay, Cuba, for about a year, backing off from one of the most criticized policies associated with its controversial prison camp for suspected Taliban and Al Qaeda supporters. The three "juvenile enemy combatants," who are believed to be between 13 and 15 years old, were captured by US forces in Afghanistan. Two were detained after a US raid on a Taliban camp, while a third was caught trying to obtain weapons to use against US soldiers, the military said. Officials said the boys no longer posed a threat and had no more useful intelligence to offer, the Pentagon said, declining to provide the boys' names or their home countries out of a fear that they may be targeted as suspected collaborators with the United States. "We are concerned Al Qaeda or Taliban sympathizers may threaten the safety of these juveniles," a military statement said. "For this reason, we will not provide their names publicly or further details regarding their capture and release." Visitors during the past year to "Camp Iguana" - the air-conditioned bungalow in Guantanamo where the trio were housed separately from older detainees and given classes, therapy, and extra exercise - have long been shown signs that they are probably Afghan, such as a "Curious George" book translated into Pashto, a language that is spoken in Afghanistan and neighboring Pakistan. The trio left Cuba at the beginning of the week and landed in their home country yesterday morning, said Major Michael Shavers, a defense spokesman. Human rights groups said they were turned over to the care of UNICEF, the United Nations agency for children's issues. It works with several nongovernmental organization partners on a program that specializes in rehabilitating former child soldiers and reintegrating them into society. Earlier this week, Manuel Fontaine, the head of that program, said that the reintegration process involves a social work commitment of months or even years - making contact with the children's families, helping the children and their caregivers readjust to life together, and follow-up visits. "We know where the families are, but I cannot comment for the interest of the children," Fontaine said. "We want the children to be left alone as much as possible to start on with their lives again." Jo Becker of Human Rights Watch praised the United States for "doing the right thing," but criticized it for taking too long to return them to their community. She noted that Major General Geoffrey Miller, who commands the Guantanamo operation, said in August that he had determined that the juveniles had been "kidnapped into terrorism" and was recommending their release. She also emphasized that the United States continues to hold older juveniles - ages 16 and 17 - among adult prisoners. She said that policy was in defiance of US obligations to reintegrate all captured "child soldiers" into their home society as quickly as possible under a treaty the US Senate ratified on Dec. 24, 2002. "We don't want policy makers and members of Congress to think that just because the younger children have been released, that there is still not an issue with children being detained at Guantanamo," she said. The Guantanamo prison camp is one of the most controversial components to the US war on terrorism. Critics say the United States is in violation of the Geneva Conventions by indefinitely holding some 660 "enemy combatants" there without hearings to determine whether they qualify for prisoner-of-war status. Mark Jacobson, a former member of the Pentagon's detainee policy group who is now a visiting scholar at Ohio State University, said that some inside the Defense Department argued against bringing younger prisoners to Cuba in the first place, but that it seemed better than releasing them or holding them in a prison in Afghanistan, such as the one at the Bagram Air Base north of Kabul, the capital. Jacobson, who visited Camp Iguana twice between January and August 2003, said that the United States flew a former senior Education Ministry official from Afghanistan to Cuba to be the young prisoners' teacher and that the prisoners had a good relationship with their guards. He said he suspected the prisoners had been treated roughly in the Taliban camp, and were responding to authority figures who did not abuse them. Shavers said the move did not signal an official change in policy. "Camp Iguana is closed," he said. "There is no plan to bring any other juveniles there, and there are no other juveniles at Guantanamo who are in the same age range as those three. That said, we couldn't predict that circumstances might not occur in the future" when the military needs to house younger detainees. * * * Reuters: January 29, 2004 US RELEASES GUANTANAMO BAY JUVENILES By Charles Aldinger http://www.reuters.co.uk/newsPackageArticle.jhtml?type=worldNews &storyID=448766§ion=news WASHINGTON (Reuters) - The United States says it has released three juvenile "enemy combatants" held at the U.S. military prison camp in Guantanamo Bay, Cuba, and flown them to their home country. The three, ranging from 13 to 15 years old, were the only juveniles among 660 suspected Taliban and al Qaeda guerrillas being held without charge at the U.S. naval base. Detention of the prisoners, especially the youngsters, has drawn major criticism from human rights groups and governments who have urged the United States to file charges against the detainees or release them. The Pentagon did not say where the three juveniles were flown, but one U.S. official told Reuters the youngsters were returned to Afghanistan -- where they were arrested more than a year ago -- to be set free. "With the assistance of non-governmental organisations, the juveniles will be resettled in their home country. It is our goal to return them to an environment where they have an opportunity to re-integrate into civil society," the Defence Department said in a statement on Thursday. It said that senior U.S. officials had decided to free the three because they were no longer a threat to America in the terror war sparked by September 2001 attacks on America. Most of the prisoners at Guantanamo were captured in the war in Afghanistan following the attacks that Washington blames on fugitive Osama bin Laden's al Qaeda guerrilla network. RELEASE DECISION BY 'SENIOR LEADERSHIP' The release of the three juveniles brought to 91 the number of detainees removed from the U.S. Navy Base prison since the expanded facility was built there after the attacks. Four of those were returned to Saudi Arabia for continued detention and the others to their home countries to be set free. "Senior leadership, in consultation with other senior U.S. government officials, determined that the juvenile detainees no longer posed a threat to our nation, that they have no further intelligence value and are not going to be tried by the U.S. government for any crimes," the Pentagon said. "Age is not a determining factor in detention. We detain enemy combatants who engaged in armed conflict against our forces or provided support to those fighting against us." Two of the three were captured during raids by U.S. and allied forces on Taliban camps and a third was arrested while trying to obtain weapons to fight American troops, the announcement said. Although none of the prisoners has been charged, U.S. Defence officials have said that some could soon be charged and tried by military commissions authorised by President George W. Bush. In the face of criticism of the prisoner policy, a senior Pentagon official in the past described the juveniles as enemy combatants who despite their age were "very, very dangerous people" who "have stated they have killed and will kill again." The Defence Department said on Thursday that after medical tests determined that all three were under the age of 16, the juveniles had been housed in a separate detention facility "modified to meet the special needs of juveniles" and were given access to the International Red Cross. "In this facility, they were not restricted in the same manner as adult detainees and underwent assessments from medical, behavioural, educational, intelligence and detention specialists to address their unique needs," it said. * * * San Francisco Chronicle: January 28, 2004 BUSH ADMINISTRATION ASKS SUPREME COURT TO BLOCK GUANTANAMO LEGAL CHALLENGES By Gina Holland, Associated Press Writer http://sfgate.com/cgi-bin/article.cgi ?f=/news/archive/2004/01/28/national1554EST0701.DTL WASHINGTON (AP) -- The Supreme Court stepped in Wednesday to temporarily continue the isolation of terrorism suspects at the Navy base in Cuba. Justice Sandra Day O'Connor granted a request from the Bush administration to stop a lower court from communicating with a detainee at Guantanamo Bay, Cuba. The 9th U.S. Circuit Court of Appeals had planned to notify the detainee of that court's ruling in December that Guantanamo prisoners should be allowed to see lawyers and have access to courts. O'Connor granted the government's request to put that ruling on hold, but she said the high court could reconsider after it hears from lawyers for the detainee, Falen Gherebi. O'Connor has jurisdiction over appeals from the San Francisco-based 9th Circuit. Solicitor General Theodore Olson had asked the high court earlier Wednesday to block any developments in a class-action case over treatment of the Guantanamo detainees until the Supreme Court decides this year, in a separate case, whether Guantanamo detainees may contest their captivity in American courts. The government has been holding about 650 men, mostly Muslims, essentially incommunicado at the prison in Cuba. The military maintains that because the men were picked up overseas on suspicion of terrorism, they may be detained indefinitely without charges or trial. The Supreme Court announced in November that it would consider appeals on behalf of Guantanamo inmates. A month later, a panel of the 9th Circuit issued the ruling in favor of Gherebi, a Libyan captured in Afghanistan. National security is at stake, Olson argued in an emergency filing, because communication with the prisoner would "interfere with the military's efforts to obtain intelligence from Gherebi and other Guantanamo detainees related to the ongoing war against terrorism." Mark Drumbl, a law professor at Washington & Lee University, said that the argument is a weak one, given the passage of time. "This has been going on for 21/2 years," he said. "Any information they had might be fairly stale now." He said the government has a legitimate claim that there are overlapping issues between the case in San Francisco and the pending appeal at the high court. Olson said the appeals court refused last week to stop proceedings in the case, which the administration is appealing to the Supreme Court. In addition to the Guantanamo case, the Supreme Court is considering a case testing the legal rights of American citizens caught overseas in the war on terrorism and may also hear an appeal involving the rights of a U.S. terror suspect caught in the United States. The case is Bush v. Gherebi, A-637. * * * Toronto Globe and Mail: January 28, 2004 Liberals call inquiry into Arar case By Allison Dunfield, Globe and Mail Update http://www.globeandmail.com/servlet/story/RTGAM.20040128.warar0128_3/BNStory/ National/ The federal government announced Wednesday that it will hold a public inquiry into the actions of Canadian officials and the RCMP with regard to the detention and deportation Maher Arar. The Liberals had been under increasing pressure to look into the case -- from Mr. Arar himself to opposition parties and civil rights groups. Mr. Arar, a Syrian Canadian who was deported to Syria by U.S. authorities on suspicion of terrorist activities, has been calling on Ottawa for months to convene an inquiry. He wants the government to determine the role that the RCMP or other agencies might have played in the decision by U.S. authorities to send him to Syria, where he was jailed and allegedly tortured. He said Wednesday that he was pleased the Liberals had called the inquiry and called it a "great day for Canadian justice." "It is...very important to ensure this inquiry can, indeed, clear my name and answer all of our questions so that we can begin to rebuild our lives." "Today is the first day of the beginning of the victory for justice," Mr. Arar's wife, Monia Mazigh, said at a press conference after the couple had learned of the probe. Deputy Prime Minister Anne McLellan announced the public inquiry Wednesday morning at a press conference. "The Prime Minister has indicated to Canadians that he wanted to get to the bottom of this," Ms. McLellan told a news conference in Ottawa. After "monitoring the situation closely," Ms. McLellan said, she has advised Mr. Martin that now is an appropriate time to call the inquiry into the treatment of Mr. Arar. She would not say whether continued pressure from Mr. Arar and various groups contributed to the government's decision. "This situation has involved many ... twists and turns. There is no one single event that led me to make my recommendation." Speaking at a news conference later in the day, Prime Minister Paul Martin said he wanted to wait for Ms. McLellan's advice before the inquiry was called. Mr. Martin said he had not changed his mind from several weeks ago, when he said that he was waiting on the results of an RCMP inquiry into the Arar matter. Mr. Martin said he wanted to wait until Ms. McLellan had looked at all the evidence before a decision was made. "What we want are the facts out as quick as possible," Mr. Martin said. Mr. Justice Dennis O'Connor from the Ontario Court of Appeal will undertake the inquiry. He also oversaw the high-profile Walkerton inquiry. Judge O'Connor will also make recommendations on an independent, arm's length review mechanism for the RCMP's activities with respect to national security, which would help plug a gap in federal legislation that it admits allows the RCMP to conduct national-security investigations without independent review. In terms of the Arar inquiry, Judge O'Connor will have all the rights and powers set out in the Inquiries Act, Ms. McLellan said. That includes the authority to hold public hearings, summon witnesses, compel testimony and gather any evidence needed to conduct the inquiry. Mr. Arar's lawyer, Lorne Waldman, said he plans to propose several terms of reference to the government for the inquiry. Mr. Arar said he wants several questions answered, including: "What information did the RCMP and CSIS pass on to the Americans that led to the belief I was a terrorist? How complete, accurate and reliable was that information?" He said while he would be pleased if he was offered some compensation, a public clearing of his name is vital. "Otherwise I'm not going to find a job. I'm going to stay in Hell. My family will suffer. My children will suffer. I just want everyone to understand this point," Mr. Arar said. The Deputy Prime Minister said she does not know how long the inquiry would take. A federal election is expected to be called in April, but Ms. McLellan said the timing of the inquiry and when recommendations are made will be up to Mr. O'Connor. All of the final report is to be made public except for information that deals with concerns around national security, she said. Last week, the RCMP raided the home and office of an Ottawa newspaper reporter, looking for evidence that one of its own officers might have leaked information in the politically charged case. Ms. McLellan would not, however, comment on the raid, saying that it is part of a police investigation. Mr. Arar has maintained his innocence, though he did acknowledge that he confessed under torture. Last week, he filed a lawsuit against U.S. Attorney- General John Ashcroft and other U.S. officials, alleging that they knew he would be tortured when they deported him to Syria. He has also pondered a suit against the Canadian government. His lawyers have filed lawsuits against Syria and Jordan, where he was first sent from the United States. [ With a report from Canadian Press. ] * * * The Independent (UK): 28 January 2004 SECOND LAW LORD CRITICISES DETENTIONS AT GUANTANAMO BAY By Robert Verkaik, Legal Affairs Correspondent A second law lord is to question US policy over the detention of 660 terror suspects at Guantanamo Bay. Lord Hope of Craighead, one of the country's senior judges, will tell an audience of lawyers and academics tonight that the men are being held in a place beyond the rule of law without the protection of any court. He will warn them not to let "the smiling charming faces of our American allies divert us from seeking to discover the reality of what is being done by their interrogators." Last year, Lord Steyn, another of the 12 members of the judicial committee of the House of Lords, spoke out against the detention when he described Guantanamo Bay as a "monstrous failure of justice" and the military tribunals that will try suspects as kangaroo courts. His intervention was quickly seized upon by the families of the nine British detainees because it broke with judicial protocol that prevents judges from making public comments on live political issues. Lord Hope does not go as far as Lord Steyn but he does say "it is no understatement to say the detainees are at the victors' mercy". In a lecture on the history of torture, jointly organised by international law firm Clifford Chance and Essex University, Lord Hope asks: "How can we expect to eliminate torture elsewhere if there is no sure way of knowing whether or not it has been practised at Guantanamo Bay by the Americans?" He adds: "We can assume that whatever has been done and is being done to the prisoners has and is being done with the cold and ruthless efficiency that characterises the actions of officials who are determined to obtain results and whose actions are not subjection to international inspection or to the control of any independent judicial authority." He argues that people have every right to be suspicious about the conditions under which the detainees are being held because the outside world has no means of testing American assurances that "all appropriate measures" are used in their interrogation. Nine Britons and three British residents are among the 660 people who have been held at the American naval base in Cuba for more than two years without charge or access to lawyers. In recent weeks the Americans signalled they are ready to repatriate European suspects if given assurances that they will be properly managed by the police when they return to their communities. But the Home Secretary, David Blunkett, has said that such restrictions would have to comply with British law, making such a condition impossible to enforce. Lawyers argue that, since there is no offence with which they could be charged, because no admissible evidence was gathered at the time of their capture, they would be freed upon arrival in Britain. * * * TomPaine.com: January 27, 2004 NOTHING TO PREEMPT By Ray McGovern http://tompaine.com/feature2.cfm/ID/9841 Finally, some honesty. But mounting problems for the White House. The CIA's chief weapons inspector, David Kay, has driven the final nail into the coffin where rests the Bush administration's policy of preemptive war. It turns out that there was nothing to preempt. Which calls into question the real reason why more than 500 U.S. troops have been killed and at least 6,000 severely wounded -- and why untold thousands of Iraqi army conscripts and civilians have also been killed. (Precise figures are impossible to come by since U.S. casualties are flown back to the United States in the dead of night, and proconsul Paul Bremer has instructed Iraqi authorities to stop counting civilian casualties.) Nothing to preempt also means that the U.S./UK attack on Iraq last March falls into the category of "preventive war" explicitly condemned by international law. Which also means that the British Prime Minister Tony Blair's political career is probably finished, as is the political future of other gullible leaders of the "coalition of the willing" -- in Australia, for example, and in even in Denmark. You will not have heard this on FOX news, but the Australian Senate has already formally censured Prime Minister John Howard for misleading the country on Iraqi "weapons of mass destruction" (WMD) and for suppressing a key report from Australian intelligence warning that still more widespread terrorism could be expected to follow any attack on Iraq. The fact that Kay came up empty-handed also means that the transparently disingenuous remarks of President George W. Bush and his senior aides in attempting to justify the invasion and occupation of Iraq will fall far short of what the White House needs in order to defend the most misguided and destructive U.S. foreign policy decision since Vietnam. Announcing last week that he was leaving his job as searcher-in-chief for weapons of mass destruction (WMD) in Iraq, Kay dared not say "Mission Accomplished." Rather, he said he believed that "probably 85 percent of the significant things" have now been found -- but no WMD. He dutifully urged that the other 15 percent be pursued under his successor, Charles Duelfer, but Duelfer is openly skeptical that he will have any better luck. Deulfer told the press on Jan. 9 "the prospect of finding chemical weapons, biological weapons is close to nil at this point." He noted that the inspectors have debriefed many knowledgeable Iraqi scientists, who "have every incentive to show them where the WMD are, and they have come up with nothing." Nevertheless, senior administration officials are still putting up a hopeful front. One told the press on Saturday that until "all" the Iraqis involved in WMD programs are interviewed, the "jury is still out" on the accuracy of U.S. intelligence. Another said yesterday that it would be premature to make any definitive judgment until "millions and millions of pages" of documents have been translated from the Arabic. To his credit, Kay is having none of that. "Why could we all be so wrong?" he asks; and his lament is all too reminiscent of Robert McNamara's "We were wrong, terribly wrong" on Vietnam. Kay initially had been a strong supporter of the attack on Iraq and, when appointed chief inspector, he exuded confidence that he would find the weapons. Most of the answer is to be found in a novel, faith-based approach to intelligence analysis -- an approach that applies the theorem propounded by Defense Secretary Donald Rumsfeld: "The absence of evidence is not evidence of absence." Secretary of State Colin Powell rang a change on that theme last week when he provided this explanation: "What we demanded of Iraq was that they prove the negative of our hypothesis." Vice President Dick Cheney and the true believers working in the sizable intelligence apparat in his office have kept faith with the Rumsfeld theorem -- Kay's and Duelfer's apostate comments notwithstanding. In an interview with National Public Radio last week, Cheney insisted that inspectors in Iraq may still find WMD. This expression of faith was accompanied by a litany of other assertions discredited by Kay and others; for example, that trailers found in Iraq posed "conclusive evidence" that Saddam Hussein "did in fact have programs for WMD." Kay made short shrift of that lingering canard when he alluded to a new intelligence community consensus that the trailers were actually designed to produce hydrogen for weather balloons, or perhaps rocket fuel. For good measure, Cheney threw in the old saw about a link between one of the 9/11 hijackers and Iraq, and cited the compendium of unconfirmed reports on such links that was prepared by Rumsfeld disciple Douglas Feith, sent to the Senate, and then leaked immediately to the right-wing Weekly Standard. Powell, however, recently admitted there is no concrete evidence of such ties, despite his conjuring up a "sinister nexus" in his UN speech on Feb. 5, 2003. And, in a highly unusual move, the Defense Department disavowed Feith's litany when it hit the open press. On WMD Cheney insisted, "It's going to take some additional considerable period of time in order to look in all the cubbyholes (sic) and ammo dumps... where you'd expect to find something like that." This is not the first hint that Cheney has dropped that he would like to string out the quest for WMD until after the November election, while asking the American people in the interim to keep faith. Other senior officials appear to be hedging their faith in the gullibility of American voters. They are urging the president to say, "The CIA made me do it." Quizzed on WMD by reporters last week, Powell explained that his UN speech was based on "what our intelligence community believed was credible." (This is a far cry from the "solid sources" he said were the underpinning of that speech.) Powell complained to the reporters, "If they (the Iraqis) didn't have any (WMD), then why wasn't that known beforehand?" Why indeed? Whom to Blame? Were not a campaign for the presidency in full swing, FOX and other U.S. media serving as ventriloquist for the administration might succeed in cutting off the legs of this major story. But, clearly, that will not be possible. It appears likely that Karl Rove and the president's other political advisers are now telling Bush that Cheney's tough-it-out attitude has run its course. Do we have a volunteer to take the fall? Yes -- CIA Director Tenet, who for months has been telling intimates that he intends to leave his post soon anyway. President Bush's gratuitous accolades for the CIA yesterday, however, suggest that he has not yet been persuaded to jettison him. So it appears possible that the CIA director (widely referred to in Washington as "Teflon Tenet") may survive to serve another day. Why? Because he is useful. He has done what he has been told to do -- even when this meant scandalizing his analysts by acquiescing in Secretary Powell's request that Tenet sit directly behind him at the UN in an obvious attempt to give CIA's imprimatur to "intelligence" his analysts knew to be highly dubious. Besides, Tenet knows far too much about what Bush had been told before 9/11. Tenet might even agree to stay on and cooperate in a campaign to blame the administration's misguided decisions on Iraq on the intelligence community. This even though he knows better than anyone that those decisions predated by at least several months the National Intelligence Estimate conjured up quickly in the fall of 2002. The draft of that estimate was used to persuade Congress to cede to the president its constitutional power to declare war. That the malleable Tenet will comply with just about anything was clear by his acquiescence in Rumsfeld's cynical request early last year to keep track of how good the intelligence would prove to be regarding WMD -- chutzpah of the highest order, since it was the "mini-CIA" Rumsfeld created in the Pentagon that fed Bush the lion's share of adulterated "intelligence" on those putative weapons. So most signs point to Tenet being a willing scapegoat, if that is what the White House decides. Kay has already said that fundamental errors in pre-war intelligence assessments were so serious that the intelligence community should overhaul its collection and analysis efforts. In response, an intelligence official said lamely, "it is premature to say that the intelligence community's judgments were completely wrong or largely wrong -- there are still a lot of answers we need." [ Ray McGovern, a 27-year career analyst with the CIA, is co-founder of Veteran Intelligence Professionals for Sanity and co-director of the Servant Leadership School, an outreach ministry in the inner city of Washington, DC. ] * * * CanadaEast.com: January 27, 2004 HEARING INVOLVING U.S. PILOT WHO DROPPED BOMB ON CANADIAN SOLDIERS DELAYED By Alison Auld HALIFAX (CP) - A preliminary hearing for the U.S. pilot involved in the friendly fire deaths of four Canadian soldiers in Afghanistan has been delayed because of an injury he suffered while playing soccer. Capt. Denise Kerr, a spokeswoman at the Barksdale Air Force Base in northern Louisiana, said Thursday the hearing that was supposed to begin Monday at the base will be rescheduled for a date yet to be determined. Lawyers for Maj. Harry Schmidt were to appear before a military judge to present various motions before a court martial, slated for March 1, was to begin. It's not clear how long the hearing will be delayed and when the court martial might now start. "We're still trying to determine the timing," Kerr said Thursday. Schmidt, 38, faces a charge of dereliction of duty for deploying the 225- kilogram bomb in April 2002 after spotting the Canadian soldiers on the ground near Kandahar. He mistook gunfire from their training exercises for an enemy attack and dropped the bomb, which also injured eight Canadians. The veteran fighter pilot suffered a broken fibula and other injuries last week while playing indoor soccer. He was due to undergo surgery and was advised by a doctor to stay off his feet for more than two weeks after that. Kerr said she didn't know if the date for the beginning of the court martial would be pushed back. News of the delay has upset relatives of the dead soldiers, who are eager for the hearing to proceed and to finally wrap up the lengthy process. "It's getting to the point that you would think a solution to this could have come a lot faster and a lot easier," Richard Leger, who lost his son Sgt. Marc Leger of Stittsville, Ont., told the Ottawa Citizen earlier this week. "There seems to be almost any reason for delays. It's very difficult for us, and I'm sure it's difficult for the other families." Another issue could also possibly delay the hearing. Earlier this month, Schmidt's lawyer, Charles Gittins, filed papers in the U.S. Air Force Court of Criminal Appeals, arguing the U.S. military is denying him and his client fair access to classified documents. Gittins claimed he is unable to obtain certain materials pertaining to the case because he is a civilian, not a military lawyer, and does not have the required security clearance. He argued in a petition and supporting briefs that he should be granted clearance at the "secret level" so he can better prepare for the upcoming court martial. Gittins said he currently has to inform prosecutors of any classified documents he wants to review and sensitive issues he wants to discuss with his client. Schmidt must also not reveal certain classified information to his lawyer without receiving permission. Gittins has asked for a stay in any proceedings leading to the court martial until the Appeal Court rules on the matter. The accidental bombing killed Leger, Pte. Richard Green, Cpl. Ainsworth Dyer and Pte. Nathan Smith, making them the first Canadians to die in combat since the Korean War. In an earlier proceeding, the commander of the Eighth Air Force found that the more serious charges against Schmidt and mission commander Maj. William Umbach should be dismissed, but that Schmidt should face the lesser dereliction charge. Schmidt opted to dare the military to face him in a court martial so that he might clear his name. If convicted, he could face six months in jail. * * * Toronto Star: January 27, 2004 KHADR FAMILY DENIED VISIT Paralyzed teen in Pakistani hospital, Canada won't pay to fly him back By Michelle Shephard, Staff Reporter http://www.thestar.com/NASApp/cs/ContentServer ?pagename=thestar/Layout/Article_Type1&c=Article&cid=1075158611174 &call_pageid= 968332188854&col=968350060724 Abdul Karim Khadr's sister believed after a visit to Canada's high commission in Islamabad she'd be able to finally see her wounded 14-year-old brother and quickly arrange to bring him home to Canada. Instead, she was told that if they want the injured teenager to return to Canada, her family will have to pay thousands of dollars for his flight, and Pakistani officials still hadn't granted them permission to visit him. Abdul Karim, a Canadian citizen, was hurt in an Oct. 2 battle near the Afghanistan border, a bullet leaving him paralyzed from the waist down. Coming home with him on a stretcher means buying as many as six seats on a commercial flight, or arranging an air ambulance costing as much as $30,000. "We don't have that kind of money," Abdul Karim's sister Zaynab said yesterday. A Foreign Affairs spokesperson said paying for flights home is not Ottawa's responsibility. For four months the family believed Abdul Karim might be dead, learning only last week he'd been near them in a Rawalpindi hospital. Having to wait another day to see him was agony, Zaynab said. The boy's mother, Maha Elsamna, had already prepared a care package for him, containing her husband's copy of the Qur'an, prayers on tape, roses, a pot of honey for healing and blackseed oil for luck. "We are Canadian citizens, and feel as though we've been abandoned," Elsamna said. Yesterday's development is another setback for the Scarborough family, which has been on the run since the Sept. 11, 2001, attacks on the United States and accusations by the American government that Khadr's Egyptian-born father, Ahmed Said, was an Al Qaeda financier and associate of Osama bin Laden. Pakistani officials confirmed last week Khadr's father was killed in the Oct. 2 battle. [ With files from Sonia Verma. ] * * * CNN: January 26, 2004 MORE DETAILS OF ARMY'S ABUSE PROBE SURFACE From Barbara Starr, CNN Washington Bureau http://edition.cnn.com/2004/US/01/26/sprj.nirq.abuse/ WASHINGTON (CNN) -- The U.S. military's criminal investigation into potential abuse of Iraqi detainees by U.S. soldiers at Abu Gharib prison in Iraq now includes reports from soldiers that military police took photographs showing soldiers hitting detainees, CNN has learned. Earlier, several Pentagon officials who declined to be identified by name confirmed to CNN that investigators were looking into the reports -- all coming from fellow soldiers -- of photographs showing male and female detainees with some of their clothing removed. It is not clear whether any photographs were taken, but several military police at the prison have been removed from duty until the matter is resolved, a military source said. The Army's Criminal Investigation Division seized computer drives searching for the photographs and more evidence of abuse. The CID is looking into whether the Iraqis were hit by military police or whether the photographs were staged. Even if staged, such pictures would be a U.S. military violation of the Geneva Conventions that prohibit subjecting prisoners to ridicule. A U.S. military source said the pictures would constitute criminal activity unless it could be demonstrated they were taken for official reasons related to processing and handling of detainees. However, a Pentagon source said there is no reason to believe any of these were official photographs, and notes the reports of abuse came from other soldiers at the prison. A military official last week said the Army is concerned there are problems of "poor discipline, poor leadership, and a need for re-training," in the military police community. Several officials say they cannot come to any conclusion about the matter until the investigation is complete, but they all reiterate that Lt. General Ricardo Sanchez, head of coalition forces in Iraq is among the U.S. officials taking the matter very seriously * * * ABC Radio Australia News: January 27, 2004 AUSTRALIAN LAWYER FLIES TO GUANTANAMO BAY http://www.abc.net.au/ra/newstories/RANewsStories_1032044.htm The legal team of one of Australia's Guantanamo Bay detainees, David Hicks, is back in Cuba for a second round of talks. Australian lawyer Stephen Kenny and Pentagon military counsel, Major Michael Mori, flew to Guantanamo Bay, joined on this trip by Joshua Draytel, an American civilian lawyer who's been approved by the US government to join the Hicks case. Our North America correspondent, Leigh Sales, says their last visit together to see Mr Hicks was a little over a month ago. There is still no word as to when David Hicks will actually face charges or go to a military trial. The Pentagon recently appointed new staff to its office of military commissions, which will run any trial. The new people need to familiarize themselves with the Hicks case, before charges can be considered, meaning another unspecified delay to the legal process. * * * Toronto Star: January 25, 2004 ROAD TO RCMP RAID BEGAN IN GUANTANAMO By Haroon Siddiqui The genesis of the RCMP raid on Ottawa Citizen reporter Juliet O'Neill lies in 9/11, of course, but more precisely in the panicked response of the American and Canadian governments. The road to the raid began in Guantanamo Bay, where the rule of law was first set aside. Due process has since been ignored in many places, against many innocents in the United States and, to a lesser degree, in Canada. But other outrageous actions against people and groups have been taken, as in her case, within the gambit of the law ? under the scary provisions of the U.S. Patriot Act and our Anti-Terrorism Act and related measures. The 650 or so foreigners held in Guantanamo Bay in violation of the Geneva Convention; the thousands of young Arabs and Muslims hauled in for questioning in the U.S.; the hundreds of illegal Pakistanis deported under U.S. Attorney- General John Ashcroft's selective prosecutions; the 23 Pakistani and Indian youths locked up in jail and dragged through the courts in Canada on false terrorism-related charges; the five people, including three landed immigrants, kept in detention in Canada under security certificates without charge and without access to lawyers; the Canadians abandoned abroad in the clutches of oppressive regimes; the hundreds of thousands of people racially profiled at the U.S. border; and, of course, the tortured Maher Arar, have all been victims of the same culture of paranoia, and the ensuing bureaucratic butt-covering, that came calling on Ms. O'Neill. But the biggest victim, by far, has been our democracy. When you ignore the fundamental rights and freedoms of some, you risk losing them for all. When you let security forces get addicted to almost unrestricted power, you never know on whom that power will turn. Yesterday, a Mohammad; today, an O'Neill. Her case will serve, as her lawyer Richard Dearden said, as "a test for the star chamber procedures implemented after 9/11." To put the procedures in perspective, I spoke to Daniel Ells-berg of Pentagon Papers fame, a messenger of bad news hounded by the Nixon administration for leaking in 1971 the secret history of the Vietnam War. Reached in Los Angeles Friday, he noted that some of the illegal measures launched against him, including wiretapping and a raid on the office of his psychoanalyst, are now legal under the Patriot Act. Such are the expanded powers of police now. On our side of the border, the best comment on our malaise came from Phil Crawley, publisher of the Globe and Mail. "I woke up and thought, 'I am in some totalitarian state,'" he said. But Paul Martin consoled Canadians, from the comforts of Davos, that "we are not a police state." Not quite. But we do have aspects of it, thanks in part to his favourite cabinet minister. As justice minister, Anne McLellan piloted the post-9/11 laws that eviscerated many of our cherished civil liberties. As Martin's deputy prime minister and the czarina of his super-ministry of public security, she is defending the RCMP raid that he is condemning. In trying to appease Americans on security and please Canadians on the Arar issue, the Prime Minister is pulling in two different directions. A bigger issue is whether he is losing control of the government even before fully assuming it. It was clear during Jean Chrétien's last weeks that the Liberals were in the dark about the Arar case. Most of what then-solicitor-general Wayne Easter said proved to be either incomplete or false. Worse, Ottawa seemed to learn more from Washington than from its own employees. Clearly, more than the rogue elements that Easter spoke of in the RCMP are at work. It is difficult to see how Martin can limit further political damage to himself and the body politic without taking the following steps: * Order an independent inquiry into the Arar case, as well as those of the 23 Pakistanis and Indian youth whose lives were ruined by police incompetence or malice. * Charge Arar or clear his name and compensate him. * Compensate those young men, not one of whom was found to have had anything to do with terrorism. * Deliver on the promise of a new watchdog to oversee Mountie intelligence gathering. Better still, reassess the ill-advised post-9/11 decision to bring the RCMP back into the spying business, best left to Canadian Security Intelligence Service, which already has an independent watchdog. * Reopen for public discussion and parliamentary scrutiny the Anti-Terrorism Act and related legislation that were rushed through in the post-9/11 panic. A good place for Martin to start would be the Throne Speech, scheduled for February 2. As for Scott Anderson, editor of the Ottawa Citizen, who is rightly complaining about the "star chamber-police state attitude that has crept into government and law enforcement post-9/11," his words would have had greater credibility had his paper, along with others in the CanWest chain, including the National Post, not been cheerleading the "tough" anti-terrorism measures that have done so much damage to our freedom and liberty, while doing so little to combat terrorism. E-mail: hsiddiq@thestar.ca * * * Toronto Star: January 24, 2004 HURT TEEN HOPES FOR SWIFT RETURN TO CANADA Pakistan holding son of Ahmed Khadr Paralyzed in attack that killed his father By Michelle Shephard, Staff Reporter http://www.thestar.com/NASApp/cs/ContentServer ?pagename=thestar/Layout/Article_Type1&c=Article&cid=1074899415845 &call_pageid=968332188774&col=968350116467 ABDUL KARIM KHADR is lying in a Pakistani hospital, paralyzed from the waist down, and hoping to come back to Canada soon. The 14-year-old has been there since late October, but Canadian officials only found him this week and are now trying to arrange for his transfer home. Canadian government sources said yesterday that Ahmed Said Khadr, Abdul Karim's father, who is perhaps Canada's most hunted man since American authorities claimed he had ties to Al Qaeda and Osama bin Laden himself, was killed in the attack in Pakistan where his son was injured. Forensic testing confirmed this week that Khadr died last October, according to the sources. The results of those tests conducted by Pakistani authorities were given to officials in Ottawa, but Canadian consular officials in Islamabad have not been able to independently verify the results. Khadr's 14-year-old son Abdul Karim told authorities he was trying to reunite with his father at the time of the Pakistani military raid on Oct. 2 in South Waziristan, near the border with Afghanistan, when a bullet hit his spine, rendering his legs immobile. Abdul Karim was shown pictures of a body while in hospital, but was unable to tell if the deceased man was his father. The teenager is being kept in an isolation ward at the hospital in Rawlapindi and doctors at the military hospital believe he might be able to walk again after rehabilitation. A spokesperson with Ottawa's Department of Foreign Affairs said yesterday they were working with Khadr's wife and Pakistani officials to bring Abdul Karim home. Canadian consular officials met with the teenager for the first time earlier this week. Liberal MP Dan McTeague, parliamentary secretary for the foreign affairs minister and assigned to watch over the fate of Canadians abroad, said every effort is being made to help Abdul Karim. "My hope is to see this young man back with his family as soon as possible," McTeague said yesterday. Late last year another one of Khadr's sons was brought back to his grandmother's Scarborough home, after being released from the U.S. camp at Guantanamo Bay, Cuba. Abdurahman said yesterday morning that his family had not been notified about their father's death and said he wants to see proof or some official confirmation of his death. His grandmother, Fatmah Elsamnah said the family was glad to hear Abdul Karim would be coming home. There are two more Khadr brothers: 17-year-old Omar, who is held in Guantanamo Bay for allegedly killing an American medic, and Abdullah, the eldest son, whose whereabouts are unknown but was last seen with his father in Pakistan. The confirmation of Khadr's death by Pakistani officials ends months of speculation as to whether the former Scarborough resident, known in Islamic military circles as "Al Kanadi" (The Canadian), died in a battle where Pakistani authorities surrounded a group of mud-walled tribal homes where they believed Al Qaeda members were hiding. Frustrated by not knowing whether Khadr or Abdul Karin was alive or dead, his wife Maha Elsamnah and 24-year-old daughter Zaynab, both of whom still live in Pakistan but who are likely to return to Canada soon, launched a lawsuit in Pakistan's Supreme Court demanding to know whether the pair were in custody. In a dramatic news conference last month, lawyer Hashmat Ali Habib announced he filed the petition on behalf of Khadr's wife and daughter, requesting that the women be allowed to meet their missing family members if they were being held, so they could arrange legal assistance. Held at Habib's home, the press conference was interrupted by local officials and uniformed and plainclothes officers who began seizing microphones and documents from reporters, one official saying he had "been sent by higher authorities to stop this press conference" due to "secret information that there is some relation with Al Qaeda." * * * Boston Globe: January 23, 2004 Page: A3 GOP DOWNPLAYS READING OF MEMOS By Charlie Savage, Globe Staff WASHINGTON - Although Senate Sergeant-at-Arms William Pickle's investigation into GOP surveillance of Democratic Judiciary Committee communications from 2002 to 2003 is not yet complete, Republicans are preemptively trying to head off any criminal charges or even ethics complaints in the Senate or the D.C. Bar. The Committee for Justice, headed by C. Boyden Gray, a former senior White House counsel during the first Bush administration, this week began circulating a "fact sheet" arguing that no rules or laws were broken by Republican staffers who exploited a computer glitch on a shared server that allowed them to access memos written by their Democratic counterparts without having to enter a password. However, Democrats, including Beryl Howell, a former general counsel for the Judiciary Committee who left the Hill a year ago and now runs the D.C. office of the cybersecurity consulting firm Stroz Friedberg, were quick to dispute each of the major points advanced by the Committee for Justice. The opening salvos in the argument over the law and ethics are revealing because they frame whether Republican staffers, whom the Pickle investigation is likely to identify as knowing about and exploiting the glitch, will be vulnerable to punishment that could include firing, disbarment, or even a year in prison. The argument advanced by the Committee for Justice is that the behavior did not violate the Computer Fraud and Abuse Act of 1984, which makes it a criminal act to exceed one's authorization to access a government computer. It said staffers "were entitled to access their own desktop computers and committee network on which the documents were inadvertently disclosed" by the mistake of a Democratic technician. Said Howell: "Just because you can do it doesn't mean it's right, doesn't mean it's ethical, and doesn't mean it's legal." The group also emphasizes a new assertion that a Democratic technician was told about the problem in mid-2002 but failed to repair it. Democrats say they were never informed. Under certain legal ethics guidelines, a lawyer who inadvertently receives confidential materials must inform the other side. The Committee for Justice also argues that there is no expectation of privacy for materials stored on a government server because "such documents are automatically stored on tapes and archived in a federal facility" and "staff was advised to keep documents they wanted to better secure on their hard drive." Democrats said, however, that the culture of Capitol Hill is such that staffers' work product for their senators is private. However, cautioning that she needed to do more research, Howell said the Committee for Justice might be correct that the memos do not count as "confidential" materials for the purposes of a Senate nondisclosure rule. Asked to respond to the "fact sheet," a number of Democratic Senate staffers referred to a statement last November by Judiciary chairman Orrin Hatch, Republican of Utah, after he conducted his own preliminary probe. He said he was "mortified that this improper, unethical, and simply unacceptable breach of confidential files may have occurred on my watch." The memos make it clear that outside liberal interest groups do much of the research on judicial nominees for Democrats and influence their decisions about which ones to try to block. That outside influence, Republicans have said, is unethical. In one, a staffer wrote that former nominee Miguel Estrada should be targeted in part because of his race, which might make him difficult to block from a later promotion to the Supreme Court. Democrats said some memos were unsent drafts and that the GOP has exaggerated their meaning. For example, in one, a staffer says the NAACP requested that none of President Bush's nominees to fill vacancies on the Sixth Circuit Court of Appeals get a hearing until after that court finished with a landmark affirmative action case. However, then-Judiciary chairman Patrick Leahy, Democrat of Vermont, scheduled a prompt hearing for a Bush nominee to that circuit anyway. One Senate staffer said that the memos had offered little concrete help to those who were secretly reading them. "Basically, for most people, they were historical - about events that already happened," the staffer said, speaking on condition of anonymity. * * * Toronto Globe and Mail: January 23, 2004 U.S. cited acquaintances in deporting Arar By COLIN FREEZE http://www.globeandmail.com/servlet/story/RTGAM.20040123.warar0123/BNStory/ Front/ The only stated reason the United States deported Maher Arar to Syria is that he admitted he knew two Ontario men who were also under RCMP investigation and later jailed as terrorism suspects in Syria. According to U.S. documents obtained by The Globe and Mail, an Immigration and Naturalization Service's regional director concluded that Mr. Arar was a member of al-Qaeda because the 33-year-old Ottawa computer engineer admitted to the FBI after his arrest in 2002 that he was acquainted with two men suspected of being terrorists at the time. "I have determined that Arar is a member of the designated foreign terrorist organization known as al-Qaeda," INS Eastern region director J. Scott Blackman wrote in his October, 2002, decision. The seven-page decision does not give any further reasons for the finding. It refers to the two men -- Abdullah Almalki and Ahmad Abou El-Maati -- and to information received from the FBI and other unspecified agencies. It says that a "classified addendum" spells out more clearly why Mr. Arar was regarded as a security threat, but that attachment remains classified. Since he was freed last fall, Mr. Arar said he had had fleeting encounters with Mr. El-Maati, a Toronto truck driver, and Mr. Almalki, a computer engineer in Ottawa, but that he doesn't really know them. But the three men, all devout Muslims and Canadian citizens, have a lot in common. RCMP officers visited each of their homes in Canada and Syria separately jailed each of them as terrorism suspects. Mr. Almalki is the only one still locked up in Syria. He was arrested after flying into the Damascus airport from Malaysia in May, 2002. Mr. El-Maati was arrested when he flew into the same airport from Canada six months earlier. He was in jails in both Egypt and Syria before his release in Cairo last week. Mr. Arar was the last one of the three taken into custody. He was arrested at a New York airport in September, 2002, because his name was on a terrorism watch list. After spending two weeks in a Brooklyn jail, Mr. Arar was woken up at 4 a.m. on a Tuesday and told the INS director had decided to deport him. Mr. Blackman outlined his reasoning in a decision he wrote only a few hours before. "The FBI interviewed Arar on September 27, 2002, at JFK International Airport. During the interview, Arar admitted his association with Abdullah Almalki and Abdullah Almalki's brother, Nazih Almalki," it reads. Mr. Arar had told the FBI he worked as a computer engineer with Nazih Almalki, who has never been accused of involvement in terrorism. Mr. Arar also had said he once met Abdullah Almalki outside an Ottawa fast-food restaurant and "advised the FBI that Almalki exports radios and that one of his customers was the Pakistani military," according to the INS. The significance of this fact is unclear, though RMCP officers who questioned the Almalki family suggested that some of the exported computer equipment ended up in al-Qaeda's hands. As for Mr. Arar's relationship with Mr. El-Maati, the truck driver, the INS director's description is even more terse. "During the September 27, 2002, interview at JFK, Arar admitted knowing Ahman [sic] El-Maati," it reads. The Globe and Mail revealed last week that the Toronto truck driver had been the subject of an intensive counterterrorism investigation before he flew from Canada to Syria in the fall of 2001. Months earlier, he was stopped at the Canada-U.S. border and grilled for about eight hours about a map said to detail government buildings in Ottawa. Mr. El-Maati denied the map was his. But suspicion surrounding him appears to have been augmented by the fact that the FBI is looking for his brother, Amer, whose Canadian citizenship papers have been found in Afghanistan. Today, however, Ahmad Abou El-Maati is a free man and the RCMP is said to be preparing to return seized items. When Mr. Blackman authorized Mr. Arar's deportation, he did so amid heightened security fears that coincided with the release of a new Osama bin Laden audio tape. Apart from Mr. Arar's associations with the other two men, it's unclear what information the INS had. [ With a report from Jill Mahoney in Edmonton. ] * * * The Age (Melbourne): January 23, 2004 GUANTANAMO AND THE ACRONYMS OF DESPAIR By Don Woolford, AAP http://www.theage.com.au/articles/2004/01/23/1074732578555.html Guantanamo Bay, where the US military is holding suspected terrorists like Australian David Hicks, is coming increasingly under the spotlight, especially from Americans themselves. As some of the secrecy surrounding the US Cuban base is lifted, more and more questions are being raised - questions of legal process, effectiveness and common humanity. Even racism. A picture of despair, privation and dubious interrogation methods is emerging. Michael Mori's attack this week on the legal processes was particularly important because it was the first public criticism from within the military establishment. The US Major assigned to defend Hicks said the military commissions that will hear as yet unspecified charges against the Australian and some other Guantanamo prisoners would not provide full and fair trials because they were created by people with a vested interest in convictions. That didn't worry the Australian government, which agreed to the commissions last year after gaining a few concessions. Attorney-General Philip Ruddock suggested the Major was grandstanding, as lawyers tend to do. He maintained the trials will be fair and that America and Australia have used commissions in the past. Not so, according to the Australian War Memorial. A spokesman said researchers had established that the Australian military had never used anything called a commission. The Japanese prosecutions after World War II, which Mr Ruddock was believed to be thinking of, were war crimes tribunals held under international law. The question of fairness, and whether the executive and military can run judicial processes completely outside the scrutiny of the judiciary, will go to the US Supreme Court. It will be months before that's decided. In the meantime, about 600 prisoners from many countries rot on Guantanamo, an artificial and constricted world of slightly sinister acronyms. Guantanamo, or Gitmo to the 2,500 Americans there, has become shorthand throughout the world for American arrogance and unilateralism, Washington Post columnist Richard Cohen said this week. One of the most detailed pictures of life on the base was in this month's magazine Vanity Fair, with reporter David Rose suggesting it may be a graver threat to what America stands for than the terror it's meant to contain. Rose said the camp has a spotless, airconditioned hospital. Most patients suffer depression, brought on by arduous, indefinite imprisonment. Until September last year, there had been 32 suicide attempts, he said. The rate has since declined because Gitmo has reclassified most attempted suicides as manipulative self-injurious behaviour (SIB). There'd been 40 SIBs in the last six months. Rose quoted a Red Cross spokesman as saying there'd been a worrying deterioration in many internees' psychological health. More than a fifth were on anti-depressants. Mori said Hicks was physically as fair as could be expected, but mentally he's degenerated to the point where his main concerns are basic human instincts. Most of the prisoners are held in Camp Delta, which Rose described as a dusty sprawl of cell blocks and interrogation trailers, pockmarked by guard towers, girdled by rings of razor wire. He said Kellogg, Brown & Root, the construction arm of Vice-President Dick Cheney's old company Halliburton, was to build more this year - bringing its income from Gitmo to $US135 million ($A175.07 million). The standard cell was 54 square feet, little bigger than a king-size mattress. Next to the wall-mounted bed was a hole-in-floor toilet, tap and small sink. There is no air-conditioning, though when the temperature reaches 30 degrees Celsius guards may switch on ceiling fans in the hall. The lights stay on all night. Tarpaulins rob prisoners of the small solace of a view of the sea, even during their short, shackled exercise periods. Each cell has an arrow indicating the direction of Mecca and there was a Muslim chaplain, until he was charged with mishandling classified material. Spiritual needs are now in the hands of a Southern Baptist. Gitmo is supposed to contribute to GWOT (global war on terror), partly by providing intelligence. But Rose says intelligence officials doubt the information is high value or reliable, partly because the interrogation system is based on bribes and punishments. Colonel Jerry Cannon, the officer in charge of detentions, told him: "The deal is: be a good detainee, obey the rules, cooperate with your interrogators... Just having a bottle of water, so you don't have to ask for a cup to fill with warm tap water, that's a big deal, that's a comfort item.'' There are 29 such items, including a hamburger from the base McDonald's. The biggest prize is a transfer to Camp Four, where prisoners sleep in dormitories, play sport and wash when they wish. But what then is the value of what they tell their interrogators? And will, come the trials, such confessions be admitted as evidence? No normal court would entertain them for a moment. Justice is also supposed to be colour blind. University of Pittsburgh law professor Darryll Jones has his doubts, partly because of the different treatment received by Hicks and the other Australian prisoner, Mamdouh Habib. Jones, writing in Jurist, said Hicks had at least been listed for trial, given a military lawyer, allowed to talk to his Australian lawyer and promised contact with his family. But nothing for Habib. Yet they were distinguishable by only one obvious fact - Hicks was a young caucasian Australian; Habib an older, brown-skinned Australian of Middle Eastern descent. Jones said there was a similar American example. John Walker Lindh, who'd been described as a "smooth-cheeked American teenager'', was dealt with quickly and favourably by the American courts. But another American captured in Afghanistan, Yaser Esam Hamdi, was sent to Gitmo until his citizenship was established and then locked in a navy brig, denied access to a lawyer or the same swift and merciful resolution enjoyed by his white compatriot. * * * NEWS.com.au: January 23, 2004 X-RAY TRANSLATOR HELD UNTIL TRIAL BOSTON (AP) - A FORMER Guantanamo Bay translator accused of taking secret documents from the US military prison in Cuba was ordered held without bail until his trial begins in federal court. Ahmed Fathy Mehalba, 31, asked to be released pending his trial, but US Magistrate Judge Charles Swartwood III denied the request in a decision dated Friday and made public yesterday. Swartwood said the Egyptian-born US citizen had "no incentive" to remain in the country, and if released on bail he would probably flee to Egypt, where his parents live. Mehalba has been held without bail since he was arrested at Boston's Logan International Airport on September 29. Authorities say customs agents found 132 compact discs in his luggage, including one that contained hundreds of classified documents labelled "SECRET". Prosecutors say Mehalba, who was returning from a visit to Egypt, lied to federal investigators when he told them he was not carrying any government documents from Guantanamo Bay. He is also charged with lying about not understanding the meaning of the term "secret" in relation to the classified documents, and about not receiving a security briefing. The US military prison camp in Cuba holds more than 600 people from some 40 countries, mostly believed to be al-Qaeda and Taliban foot soldiers. * * * The Australian: January 23, 2004 US DENIES TRAMPLING RIGHTS From correspondents in Davos, Switzerland US Attorney-General John Ashcroft denied today that the United States was trampling civil liberties in its anti-terror drive, insisting the country was at war and respecting rights "at the highest level possible". At a luncheon gathering at the World Economic Forum, Ashcroft defended the Bush administration's move to detain some people as "enemy combatants" and hold them without charges or recourse to basic legal rights. "Nations when they are attacked have a right to detain individuals that are attacking them," Ashcroft said, invoking the September 11, 2001 terror assault on the United States that triggered a tough US response. He said the traditional checks and balances between the executive and judicial branches of the government did not apply in the new environment. "When you're conducting a war, and we are still at war ... you expect the executive to conduct the war," the top US justice official said, adding that any such arrests were ordered only after careful study. "The decision, when it is made, is based on significant evidence (and) made by the president of the United States. It is not based on a whim," he said. "We are respecting liberties at the highest level possible to make these judgments." Human rights groups have roundly criticised the government's move to detain prisoners without trial, including more than 660 held at the US naval base in Guantanamo Cuba and at least three in the United States. The US Supreme Court has agreed to rule on the issue whether such prisoners can be held without having their detention subject to some sort of judicial review. The cases of the three prisoners held in the United States have drawn particular attention: Yaser Hamdi, a US citizen raised in Saudi Arabia and held at a US naval base since US troops captured him in Afghanistan. Jose Padilla, an American citizen accused of plotting with al-Qaeda to set off a radioactive "dirty bomb". Ali Saleh Kahlah Al-Marri, a Qatari native and a former Bradley University graduate student declared an "enemy combatant" by US President George W Bush in late June. Ashcroft said the fact that only three such cases existed was proof of the administration's good faith but Kenneth Roth, executive director of the group Human Rights Watch, worried that more such arrests might be made. "Are these just the test cases, and how will the administration behave if these test cases are approved?" he said to reporters at the luncheon. "Will this be the tip of the iceberg?" Roth also said the invocation of a state of war to justify the detentions without trial was extremely debatable and "creates an enormous loophole in our basic judicial guarantees". * * * The Christian Science Monitor: January 23, 2004 edition DETAINEE CASES HIT COURT http://www.csmonitor.com/2004/0123/p01s01-usju.html The high court takes up cases contesting the government's treatment of 'enemy combatants.' By Warren Richey, Staff writer of The Christian Science Monitor WASHINGTON -- Almost 2-1/2 years after the terror attacks of Sept. 11 shook the nation, the US Supreme Court is about to enter the war on terrorism in a big way. The justices are preparing to take up cases this spring that will test the very foundation of American government - the balance of power between the courts, Congress, and the White House. At issue is whether President Bush is acting within his constitutional authority as commander in chief in ordering the indefinite detention of those he has designated "enemy combatants." In addition to two cases already accepted, the justices will consider today adding yet another megacase to a court docket that already seems destined for American history books. If the court agrees to take the case of alleged dirty-bomb conspirator Jose Padilla, it would set the stage for the justices to hear as many as three potential landmark national-security cases in its April session, with decisions expected by the end of June. "These are watershed cases," says Scott Silliman, a law professor and executive director of the Center on Law, Ethics, and National Security at Duke Law School. "Historically, the court's earlier [national security] precedents have dealt with war in the traditional sense of armed conflict in a declared war [between nations]," Mr. Silliman adds. But those precedents don't speak precisely to a more open-ended, unconventional war against terrorists now being waged by the US government, he says. Some legal analysts believe the president must treat acts of terrorism as a crime, relying exclusively on civilian courts to detain and punish suspected terrorists. Others say the US is at war and that a battlefield is no place to require Miranda warnings and probable-cause hearings. "However the Supreme Court decides these cases, it will give us a legal bridge in trying to define the powers and authority of the president in this war on terrorism," Silliman says. A common thread running through all three cases is a broad assertion of presidential authority by the White House combined with an active effort to sharply limit the role of federal judges in second-guessing administration tactics in the designation and treatment of "enemy combatants." The government's arguments As if the drama of a constitutional showdown weren't enough, Solicitor General Theodore Olson hasn't been shy about reminding the justices that these cases arise in dangerous times. "The al Qaeda network remains a serious threat to the national security," Mr. Olson says in his brief urging the high court to take up the Padilla case. He says the president's actions have been both constitutional and necessary. "The detention of enemy combatants serves the vital wartime objectives of preventing captured combatants from continuing to aid the enemy and of yielding critical intelligence in advancement of the war effort," Olson says. Two American citizens - Mr. Padilla and Yaser Hamdi - are being held indefinitely as enemy combatants in military brigs in Charleston, S.C., and Norfolk, Va., respectively. In addition, 660 foreign nationals, also designated enemy combatants, are being housed without charge or access to lawyers in a specially built prison camp at the Guantánamo Bay Naval Base in Cuba. The justices have already agreed to decide whether US courts have jurisdiction to hear legal challenges to the open-ended detentions at the Guantánamo Bay prison camp. In addition, the justices have accepted a case examining the indefinite, detention incommunicado of Mr. Hamdi, a suspected Taliban supporter captured in Afghanistan. Hamdi is a Saudi citizen, but he was born in the US, which automatically makes him a US citizen as well. Lawyers challenging the Bush administration's approach to the war on terror argue that all detainees are entitled to some measure of due process. And they say US citizens are entitled to the full protections of the US judicial system regardless of any presidential designation as an enemy combatant. Government lawyers say that because the Guantánamo prison camp is outside the sovereign control of the United States, US courts lack jurisdiction over any claims by Guantánamo prisoners. A federal appeals court in Washington agreed with the government's position in a March 2003 ruling. But last month, a federal appeals court in California reached the opposite conclusion. In a 2-to-1 decision, the court ruled that because the US exercises territorial jurisdiction over Guantánamo (if not outright sovereignty), the prisoners have a right to challenge their confinement. In the Hamdi case, a federal appeals court in Richmond, Va., has upheld the president's power to hold indefinitely US citizens he determines to be enemy combatants. But last month, a federal appeals court in New York ruled 2-to-1 in the Padilla case that the president lacked the authority to order the open-ended detention of American citizens on American soil. A potential key difference between the Hamdi and Padilla cases is where each man was taken into custody. The appeals court that upheld Hamdi's detention noted that he was captured on a foreign battlefield in possession of an assault rifle, while the appeals court in the Padilla case pointed out that he was arrested at a US airport and "away from a zone of combat." In the Padilla case, government lawyers dispute that the president is acting without authority - including congressional authorization. They say Congress passed a joint resolution a week after the Sept. 11 attacks authorizing all the actions the president has taken in the war on terror. The resolution directs the president to "use all necessary and appropriate force" against any person he determines is involved in efforts to conduct further acts of terrorism against the US. Bush administration lawyers say Padilla is just such a person. Not according to others The New York appeals court disagreed. It said the congressional action authorized the war in Afghanistan but not the actions taken within the US. "As this court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat al Qaeda poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation," the judges wrote in their Dec. 18 decision. "But presidential authority does not exist in a vacuum." In effect, the appeals court said the president must rely on his law-enforcement powers rather than his powers as commander in chief to wage the war on terror whenever it implicates a US citizen within the States. Solicitor General Olson says the Padilla case involves "issues of extraordinary national significance." "The court of appeals' conclusion that the president categorically lacks the authority to detain Padilla as an enemy combatant is fundamentally at odds with this court's decisions," Olson says in his brief to the justices. "And it undermines the president's vital authority as commander in chief to protect the United States against additional attacks launched within the nation's borders." The solicitor general says the president is better able than appeals court judges to decide how best to deal with Padilla. "The president's decision to detain Padilla as an enemy combatant in lieu of detaining him in the criminal justice system reflects a sensitive determination at the core of the president's Article II powers concerning the best interests of the nation in wartime," Olson says. "Judges have little or no background in the delicate business of intelligence gathering." * * * TIME: Thursday, Jan. 22, 2004 GRAND JURY HEARS PLAME CASE Testimony begins in front of a grand jury in the investigation into whether the identity of CIA operative Valerie Plame was improperly leaked to the press By John Dickerson and Viveca Novak http://www.time.com/time/nation/article/0,8599,581456,00.html Sources with knowledge of the case tell TIME that behind closed doors at the E. Barrett Prettyman federal courthouse, nearby the Capitol, a grand jury began hearing testimony Wednesday in the investigation of who leaked the identity of CIA operative Valerie Plame to columnist Robert Novak and other journalists. Prosecutors are believed to be starting with third-party witnesses, people who were not directly involved in the leak of Plame's identity. Plame's husband, former Ambassador Joseph Wilson, claims that the leak was an act of retaliation against him for undercutting Bush's weapons-of-mass-destruction rationale for going to war in Iraq. Soon enough, witnesses with more direct knowledge will be called to testify, and a decision to subpoena journalists for their testimony will also be made. In December, the FBI asked some administration staffers to sign a waiver releasing reporters from confidentiality agreements in connection with any conversations they had about the Wilson affair. Novak's attorney, Jim Hamilton, had no comment about the latest developments. Grand juries aren't always used in criminal probes, but they are the preferred way to go in cases with potential political fallout, if only to lend credibility to the result. One conclusion to be drawn from this latest step, said one lawyer familiar with the case, is that investigators clearly have a sense of how the case is shaping up. "They clearly have a sense of what's going on and can ask intelligent questions" to bring the grand jury up to speed. A grand jury is not a trial jury, but is used as an investigative tool and to decide whether to bring indictments in a case. Anyone who's subpoenaed in the inquiry, noted the lawyer, can be almost certain that prosecutors aren't contemplating indicting him or her. Subpoenas are rarely sent to the targets of an investigation, and if they are, the recipients must be told in advance that they are considered targets -- at which point they would almost certainly cite the 5th Amendment and refuse to answer questions. A huge unanswered question in this case is whether the leaker or leakers knew that Plame was undercover when they gave her identity away. That is a necessary element for any indictment for leaking the name of a covert agent. However, charges could also be brought for making false statements to the FBI, if a guilty party has falsely claimed innocence in interviews with government agents. It's also possible that prosecutors will learn who perpetrated the leak but won't have enough to bring charges. But true to form, the Bush administration continues to be extremely tight-lipped about the investigation -- even internally. "No one knows what the hell is going on," says someone who could be a witness, "because the administration people are all terrified and the lawyers aren't sharing anything with each other either." * * * Reuters: January 22, 2004 COURT HALTS RELEASE OF U.S. ENEMY COMBATANT By Gail Appleson http://www.reuters.com/newsArticle.jhtml?type=domesticNews&storyID=4190883 NEW YORK (Reuters) - A federal appeals court on Thursday granted the Bush Administration's request to delay an order that would force the U.S. government to release an American citizen imprisoned as an enemy combatant. The stay, issued by the U.S. Second Circuit Court of Appeals, gives the government time to pursue its case before the nation's highest court while Jose Padilla, an American citizen, remains imprisoned in a military jail. In December, the Second Circuit ruled that President Bush lacked the power to order an American citizen, seized on U.S. soil, held as an enemy combatant. It ordered his release within 30 days. However, the Justice Department appealed the ruling to the U.S. Supreme Court and asked the Second Circuit to stay its December order. The Padilla case is among key cases challenging the U.S. president's powers to detain individuals in the war on terror. A number of legal groups have criticized the Bush administration for detaining U.S. citizens as enemy combatants indefinitely without criminal charges. Padilla has been held for some 20 months as a suspect in an alleged al Qaeda plot to detonate a radioactive "dirty bomb" in the United States. He was arrested at Chicago's O'Hare airport in May, 2002, on a return flight from Pakistan. The arrest was based on a material witness warrant in connection with a Manhattan federal grand jury investigation into the Sept. 11 attacks. Padilla was held at the Manhattan federal prison until June 9, 2002, when the Bush administration classified him as an enemy combatant and he was transferred to a Navy prison. There are still no criminal charges pending against him and he has been barred from meeting with defense lawyers. Federal prosecutors have argued Padilla should not have access to attorneys because they said he posed a threat to national security and defense lawyers would interfere with his interrogation. Earlier this month, the Supreme Court said it would hear a separate case challenging whether a U.S. citizen seized on the battlefield in Afghanistan can be kept indefinitely in a military jail. In that case, the high court agreed to hear the appeal of Yaser Esam Hamdi challenging whether U.S. officials have the power to detain him indefinitely as an "enemy combatant" in a Navy jail in Charleston, South Carolina. The Supreme Court is expected to hear arguments in the Hamdi case in April. * * * Sarasota Herald-Tribune: January 22, 2004 GUANTANANO BAY TRANSLATOR ORDERED HELD UNTIL TRIAL http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20040122/APN/401220745 BOSTON (AP) -- A former Guantanamo Bay translator accused of taking secret documents from a prison camp at the U.S. military base was ordered held without bail until his trial begins in federal court. Ahmed Fathy Mehalba, 31, asked to be released pending his trial, but U.S. Magistrate Judge Charles Swartwood III denied the request in a decision dated Friday and made public on Wednesday. Swartwood said the Egyptian-born U.S. citizen had "no incentive" to remain in the country, and if released on bail he would probably flee to Egypt, where his parents live. Mehalba has been held without bail since he was arrested at Boston's Logan International Airport on Sept. 29. Customs agents found 132 compact discs in his luggage, including one that contained hundreds of classified documents labeled "SECRET." Prosecutors say Mehalba, who was returning from a visit to his native Egypt, lied to federal investigators when he told them he was not carrying any government documents from Guantanamo Bay. He is also charged with lying about not understanding the meaning of the term "secret" in relation to the classified documents, and about not receiving a security briefing. * * * Dallas Morning News January 22, 2004 BIGGER INQUIRY SOUGHT IN LEAK CASE Officials want details, say Congress should probe naming of agent http://www.dallasnews.com/s/dws/news/nation/stories/012304dnnatcialeak.7225.html WASHINGTON (AP) - Members of Congress and 10 former CIA officials are seeking a broader inquiry into the leak of an undercover officer's name, aiming to determine if U.S. national security was compromised and to discourage leaks. In addition, a leading Democratic critic of the Justice Department investigation into the matter says the Bush administration should release details of the inquiry to show the public whether officials are cooperating as President Bush promised. "A prosecutor has the responsibility to assure public confidence in criminal investigations, especially those of such a serious nature," Sen. Charles Schumer, D-N.Y., said in a letter Thursday to Deputy Attorney General James Comey. Justice Department and FBI officials refused to comment on the investigation, which began in September, other than to say it is continuing. Attorney General John Ashcroft has recused himself from the inquiry, which is led by Mr. Comey and U.S. Attorney Patrick Fitzgerald of Chicago. Investigators want to know who leaked the name of the CIA undercover officer, Valerie Plame, to syndicated columnist Robert Novak in July. Her husband, former Ambassador Joseph Wilson, has said his wife's identity may have been disclosed to discredit his assertions that the Bush administration exaggerated Iraq's nuclear capabilities to build a case for war. The former CIA officials, in a letter to congressional leaders, said an investigation by Congress could go further than the Justice Department's by exposing how the leak happened and making clear that such actions won't be tolerated. "A thorough and successful congressional investigation of this crime is necessary to send a clear signal that the elected representatives of this government will not accept nor ignore the political exploitation of the men and women in our intelligence community," said the letter, dated Tuesday. The letter, signed by former CIA analyst Larry Johnson and nine other former agency analysts and case officers, was sent to House Speaker Dennis Hastert, R- Ill., and other senior Democrats and Republicans in the House. A congressional official provided a copy Thursday to The Associated Press. House Minority Leader Nancy Pelosi, D-Calif., said in a prepared statement that she agreed with the thrust of the former officials' letter and expressed support for an effort by Rep. Rush Holt, D-N.J., to force the House to examine the case, including the possible damage to national security. Mr. Holt and other Democrats have introduced a resolution that, if approved, would request that the Bush administration forward all documents related to the Plame case. It is far from certain that the Republican-led House will even consider the resolution or launch an investigation of its own. "The Department of Justice investigation has the full support of Congress and should be vigorously pursued, but it is not enough," Mr. Holt said. In his letter to Mr. Comey, Mr. Schumer asked for public release of details such as whether a grand jury is investigating the matter, whether any journalists have been interviewed and whether White House staffers had signed waivers releasing journalists from their promise of source confidentiality. The answers to these and other questions, Mr. Schumer said, could help the public understand "whether the administration is playing a spin game to make it look like it is cooperating." Justice Department officials declined to comment on Mr. Schumer's request. They noted, however, that by law they cannot disclose some of the information being sought because it pertains to active criminal investigations. * * * Boston Globe: January 22, 2004 INFILTRATION OF FILES SEEN AS EXTENSIVE Senate panel's GOP staff pried on Democrats By Charlie Savage, Globe Staff http://www.boston.com/news/nation/articles/2004/01/22/ infiltration_of_files_seen_as_extensive/ WASHINGTON -- Republican staff members of the US Senate Judiciary Commitee infiltrated opposition computer files for a year, monitoring secret strategy memos and periodically passing on copies to the media, Senate officials told The Globe. From the spring of 2002 until at least April 2003, members of the GOP committee staff exploited a computer glitch that allowed them to access restricted Democratic communications without a password. Trolling through hundreds of memos, they were able to read talking points and accounts of private meetings discussing which judicial nominees Democrats would fight -- and with what tactics. The office of Senate Sergeant-at-Arms William Pickle has already launched an investigation into how excerpts from 15 Democratic memos showed up in the pages of the conservative-leaning newspapers and were posted to a website last November. With the help of forensic computer experts from General Dynamics and the US Secret Service, his office has interviewed about 120 people to date and seized more than half a dozen computers -- including four Judiciary servers, one server from the office of Senate majority leader Bill Frist of Tennessee, and several desktop hard drives. But the scope of both the intrusions and the likely disclosures is now known to have been far more extensive than the November incident, staffers and others familiar with the investigation say. The revelation comes as the battle of judicial nominees is reaching a new level of intensity. Last week, President Bush used his recess power to appoint Judge Charles Pickering to the Fifth Circuit Court of Appeals, bypassing a Democratic filibuster that blocked a vote on his nomination for a year because of concerns over his civil rights record. Democrats now claim their private memos formed the basis for a February 2003 column by conservative pundit Robert Novak that revealed plans pushed by Senator Edward M. Kennedy, Democrat of Massachusetts, to filibuster certain judicial nominees. Novak is also at the center of an investigation into who leaked the identity of a CIA agent whose husband contradicted a Bush administration claim about Iraqi nuclear programs. Citing "internal Senate sources," Novak's column described closed-door Democratic meetings about how to handle nominees. Its details and direct quotes from Democrats -- characterizing former nominee Miguel Estrada as a "stealth right-wing zealot" and describing the GOP agenda as an "assembly line" for right-wing nominees -- are contained in talking points and meeting accounts from the Democratic files now known to have been compromised. Novak declined to confirm or deny whether his column was based on these files. "They're welcome to think anything they want," he said. "As has been demonstrated, I don't reveal my sources." As the extent to which Democratic communications were monitored came into sharper focus, Republicans yesterday offered a new defense. They said that in the summer of 2002, their computer technician informed his Democratic counterpart of the glitch, but Democrats did nothing to fix the problem. Other staffers, however, denied that the Democrats were told anything about it before November 2003. The emerging scope of the GOP surveillance of confidential Democratic files represents a major escalation in partisan warfare over judicial appointments. The bitter fight traces back to 1987, when Democrats torpedoed Robert Bork's nomination to the Supreme Court. In the 1990s, Republicans blocked many of President Clinton's nominees. Since President Bush took office, those roles have been reversed. Against that backdrop, both sides have something to gain and lose from the investigation into the computer files. For Democrats, the scandal highlights GOP dirty tricks that could result in ethics complaints to the Senate and the Washington Bar -- or even criminal charges under computer intrusion laws. "They had an obligation to tell each of the people whose files they were intruding upon -- assuming it was an accident -- that that was going on so those people could protect themselves," said one Senate staffer. "To keep on getting these files is just beyond the pale." But for Republicans, the scandal also keeps attention on the memo contents, which demonstrate the influence of liberal interest groups in choosing which nominees Democratic senators would filibuster. Other revelations from the memos include Democrats' race-based characterization of Estrada as "especially dangerous, because . . . he is Latino," which they feared would make him difficult to block from a later promotion to the Supreme Court. And, at the request of the NAACP, the Democrats delayed any hearings for the Sixth Circuit Court of Appeals until after it heard a landmark affirmative action case -- though a memo noted that staffers "are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case." After the contents of those memos were made public in The Wall Street Journal editorial pages and The Washington Times, Judiciary Chairman Orrin Hatch, Republican of Utah, made a preliminary inquiry and described himself as "mortified that this improper, unethical and simply unacceptable breach of confidential files may have occurred on my watch." Hatch also confirmed that "at least one current member of the Judiciary Committee staff had improperly accessed at least some of the documents referenced in media reports." He did not name the staffer, who he said was being placed on leave and who sources said has since resigned, although he had apparently already announced plans to return to school later this year. Officials familiar with the investigation identified that person as a legislative staff assistant whose name was removed from a list of Judiciary Committee staff in the most recent update of a Capitol Hill directory. The staff member's home number has been disconnected and he could not be reached for comment. Hatch also said that a "former member of the Judiciary staff may have been involved." Many news reports have subsequently identified that person as Manuel Miranda, who formerly worked in the Judiciary Committee office and now is the chief judicial nominee adviser in the Senate majority leader's office. His computer hard drive name was stamped on an e-mail from the National Abortion and Reproductive Rights Action League that was posted along with the Democratic Senate staff communications. Reached at home, Miranda said he is on paternity leave; Frist's office said he is on leave "pending the results of the investigation" -- he denied that any of the handwritten comments on the memos were by his hand and said he did not distribute the memos to the media. He also argued that the only wrongdoing was on the part of the Democrats -- both for the content of their memos, and for their negligence in placing them where they could be seen. "There appears to have been no hacking, no stealing, and no violation of any Senate rule," Miranda said. "Stealing assumes a property right and there is no property right to a government document. . . . These documents are not covered under the Senate disclosure rule because they are not official business and, to the extent they were disclosed, they were disclosed inadvertently by negligent [Democratic] staff." Whether the memos are ultimately deemed to be official business will be a central issue in any criminal case that could result. Unauthorized access of such material could be punishable by up to a year in prison -- or, at the least, sanction under a Senate non-disclosure rule. The computer glitch dates to 2001, when Democrats took control of the Senate after the defection from the GOP of Senator Jim Jeffords, Independent of Vermont. A technician hired by the new judiciary chairman, Patrick Leahy, Democrat of Vermont, apparently made a mistake that allowed anyone to access newly created accounts on a Judiciary Committee server shared by both parties -- even though the accounts were supposed to restrict access only to those with the right password. © Copyright 2004 Globe Newspaper Company. * * * CBC: January 22, 2004 ARAR LAUNCHES LAWSUIT AGAINST U.S. TO 'CLEAR MY NAME' http://www.cbc.ca/stories/2004/01/22/arar040122 OTTAWA - U.S. lawyers for Maher Arar say a lawsuit filed Thursday will put Washington's position on torture to the test. Arar is suing a number of top U.S. officials for his arrest and deportation to Syria in 2002. Arar alleges he was deliberately sent to Syria so torture could be used to extract any information he might have. Arar is seeking financial compensation for his year-long ordeal, as well as a declaration that what the U.S. did was illegal. Arar's lawsuit was filed under the U.S. Torture Victim Protection Act, a federal law enacted by George Bush senior to give people the legal right to sue for torture anywhere in the world. Arar's suit alleges that rather than protect him from torture, U.S. officials condoned it. "We know it was an intentional decision to send him to a place that, we know in this country, commits torture," said Barbara Olshansky, one of Arar's American lawyers. Olshansky says Arar was just one of a number of terrorist suspects the U.S. sends abroad as part of a unwritten policy of "extraordinary rendition." That's the practice of using other countries to extract information through torture. Michael Ratner, president of the New York-based Center for Constitutional Rights, filed the lawsuit. "He (Arar) was never supposed to come back, and maybe it's pushing it a little bit, but like Hamlet's father's ghost, he will haunt (U.S. Attorney General John) Ashcroft until he gets justice here," said Ratner. The suit names Ashcroft, Homeland Security Secretary Tom Ridge, FBI Director Robert Mueller and more than a dozen other senior officials, including some who are no longer employed by the government. It seeks financial compensation in an amount to be determined by the court. But Arar says he also wants a declaration that what the U.S. officials did was illegal. "I need to clear my name and I want to make sure that does not happen to any other person," he said. Arar's story is also gaining interest in the United States. It was featured on the American news program 60 Minutes II. The program alleged that Canadian intelligence officials knew and approved of Arar's deportation to Syria. Public Safety Minister Anne McLellan dismissed the allegation. Prime Minister Paul Martin was also asked whether Canadian officials were part of the decision, but would only say, "All I can tell you is what (U.S. Secretary of State) Colin Powell told (Foreign Affairs Minister) Bill Graham, and that is, that they were not." Arar says his lawyers are still mulling over whether to take legal action against the Canadian government. Arar's lawyer are also trying to work out a way that would allow him to give evidence in a U.S. court, should the suit go to trial. When U.S. officials deported him, they also banned him from re-entering the United States for five years. [ Written by CBC News Online staff. ] * * * CBC: January 22, 2004 ARAR LEAK MUST BE PROBED: PM DAVOS, SWITZERLAND - Although freedom of the press must be protected, it's important to find the source of the leak in the Maher Arar case, Prime Minister Paul Martin said Thursday. Those comments were his first on the controversial RCMP raid on the home of Ottawa Citizen reporter Juliet O'Neill. Martin noted the information leaked to the journalist included personal and national security details that shouldn't have been made public. He said the leak was a serious matter, especially given it contained security information. But Martin, who is attending the World Economic Forum in Davos, also acknowledged the importance of freedom of the press. He described it as "one of the important pillars underlying Canadian democratic freedoms." "We are not a police state and we have no intention of being a police state and there is a balance between how does one protect the nation's security and what are the steps taken." Martin said he's walking a "delicate line" in commenting on the Mounties' five- hour search of O'Neill's house. A balance must be struck in protecting security information and allowing the media to report without government or police interference, Martin added. On Wednesday, RCMP officers raided O'Neill's home and office hoping to determine who provided her with the information she used to write a story about Arar, a Canadian citizen whom U.S. authorities deported to Syria. O'Neill's article cited "a security source" and a leaked document offering details of what Arar allegedly told Syrian military intelligence during his incarceration. O'Neill faces the possibility of criminal charges under the Security of Information Act, which carries a maximum penalty of 14 years in prison. The law was passed in the wake of the Sept. 11, 2001, terrorist attacks on the United States. Martin wouldn't comment on the way the security law was applied by the police, but said the legislation calls for periodic reviews to ensure it doesn't threaten the rights and freedoms of Canadians. U.S. officials sent Arar, a telecommunications engineer who is originally from Syria, to the Middle East country in the fall of 2002. He had stopped in New York on his way home from a vacation. Upon his release last fall, Arar said he had been tortured for months by Syrian authorities who pressed him about any links to the al-Qaeda terrorist network. O'Neill reported that Arar told the Syrians he had attended an al-Qaeda training camp in Afghanistan in 1993. Arar later insisted he only made a bogus confession under torture, and denied any involvement in terrorism. Lawyers representing Arar launched a lawsuit against U.S. officials in New York on Thursday. Arar said it's too early to say whether he'll sue the Canadian government. He said his primary concern was getting his name cleared in a public inquiry. The Canadian government insists it was not told of the decision to deport Arar to Syria, despite reports that claim otherwise. [ Written by CBC News Online staff. ] * * * Ottawa Citizen: Thursday, January 22, 2004 CANADIAN SPIES OK'D DEPORTATION: CBS By Robert Fife, The Ottawa Citizen http://www.canada.com/ottawa/ottawacitizen/news/story.html ?id=6e2764e9-6f97-45cb-813f-d51e0e67483b Canadian intelligence quietly approved of the United States decision to arrest and deport Syrian-born Canadian Maher Arar to Syria, CBS's 60 Minutes II reported last night. Prime Minister Paul Martin and other senior government officials have denied the RCMP or Canadian Security Intelligence Service consented to Mr. Arar's deportation to Syria, where he says he was tortured. The government conceded Canada exchanged intelligence with the Americans about Mr. Arar's activities and alleged links to the al-Qaeda terrorist network, but insisted it did not know he would be deported to Syria, which engages in torture. However, 60 Minutes II, citing senior U.S. officials, said Canadian law enforcement agencies were fully aware and sanctioned Mr. Arar's deportation in the fall of 2002 -- the same time Foreign Affairs officials were urging U.S. agencies to return him to Canada. "While Canadian diplomats were demanding answers from the U.S., it turns out that all along it was the Royal Canadian Mounted Police who'd been passing U.S. intelligence the information about Arar's alleged terrorist associations," CBS correspondent Vicki Mabrey reported. "U.S. government officials we spoke to say they told Canadian intelligence they were sending Arar to Syria and the Canadians OKed it." The CBS report contradicts assurances given by the RCMP and CSIS to their political masters that they played no role in Mr. Arar's deportation, but it supports statements made by U.S. Ambassador Paul Cellucci. Last April, Mr. Cellucci said that the Ottawa software technician was well-known to Canadian law enforcement agencies and "they wouldn't be happy to see him come back to Canada." But just last week in Monterrey, Mexico, Foreign Affairs Minister Bill Graham told reporters Mr. Cellucci no longer stood by the assertion that Canada approved Mr. Arar's deportation. "That was a statement (Mr. Cellucci) made at one point at a cocktail party, but he subsequently said that Canada had not been consulted and he said the decision was made by the United States and by itself without discussing it (with Canada)," Mr. Graham said. Mr. Martin also told reporters in Mexico the RCMP could not have been involved in Mr. Arar's deportation because it had officers in Canada "waiting at the airport expecting (Mr. Arar) to come" back from Tunisia. Officials say the RCMP had six undercover officers at Montreal's Dorval Airport on Sept. 26, 2002, waiting for Mr. Arar's return from Tunisia through New York's JFK Airport to follow him to gain intelligence on his activities in Canada. "If you have people at Montreal airport waiting for a guy to get off the plane, you certainly weren't in cahoots with the guys shipping him elsewhere and giving tacit approval. Otherwise, why would you have six guys at the airport?" a source said. The CBS revelation has renewed demands from MPs in all parties for a full public inquiry. "All of this underscores yet again, how urgent it is to get on with a full, independent public inquiry into the Arar fiasco," NDP MP Alexa McDonough said yesterday. Officials say Mr. Martin has been extensively briefed on Mr. Arar's activities abroad and in Canada, suggesting this is why the government backed off holding a public inquiry into his deportation. The RCMP Public Complaints Commission is looking into the RCMP's role in the Arar case while CSIS's activities are being investigated by the Canadian Security Intelligence Review Committee. Mr. Arar, who holds both Canadian and Syrian passports, spent 10 months in a Syrian prison cell which he has described as no bigger than a grave. He said he endured extensive torture during his captivity. He returned to Canada in the fall. Canadian and U.S. intelligence officials say they are "100-per-cent sure" Mr. Arar trained at the same al-Qaeda camp in Khaldun, Afghanistan, as Ahmed Ressam, the former Montrealer convicted of planning a terrorist attack against the U.S. Mr. Arar denies he is a member of al-Qaeda and maintains he has never been to Afghanistan. He says he confessed to travelling to the country only after being tortured by Syrian intelligence officers. U.S. officials claim Mr. Arar had the names of "a large number of known al-Qaeda operatives, affiliates or associates" in his wallets and pockets when he was detained. The U.S. order to deport Mr. Arar to Syria via Jordan declared that sending him home to Canada would be prejudicial to the interests of the United States. [ With files from Global National. ] * * * BBC: January 22, 2004 GUANTANAMO LAWYER RENEWS ATTACK http://news.bbc.co.uk/2/hi/americas/3418905.stm The US military lawyer assigned to defend the man dubbed the "Australian Taleban" has complained that his client will not receive a full and fair trial. Major Michael Mori represents "enemy combatant" David Hicks, one of six Guantanamo Bay inmates deemed eligible for trial by a US military commission. Major Mori said those who had created the tribunals process had a "vested interest" in securing convictions. Canberra, however, says it favours Mr Hicks remaining in US custody. It says it believes Mr Hicks has a case to answer. But Attorney General Philip Ruddock reportedly told Australian radio that, if the two Australian Guantanamo detainees were returned, "there are no charges that we would be able to bring against them under our law as it was at that time". Mr Hicks was captured in Afghanistan in 2001, apparently while fighting for the Taleban. Open attack Marine Corps Major Mori's disquiet was initially made clear last week, when he and four other lawyers assigned to Guantanamo detainees criticised the tribunal in a "friend-of-the-court" brief filed with the Supreme Court. But Major Mori said their concerns had not been addressed, and he renewed his criticism on Wednesday, this time in an open attack conveyed directly to reporters. "The military commissions will not provide a full and fair trial," Mori told the news conference in a Washington suburb on Wednesday. "The commission process has been created and controlled by those with a vested interest only in convictions." He said that because Mr Hicks had not been charged with anything, it would be difficult to prepare his defence. Under the rules of the tribunal system, the Pentagon is allowed to monitor communications between detainees and their lawyers. 'Double standards' The trials will be conducted behind closed doors, and there is no right to appeal in a civilian court. However, Washington and Canberra have agreed that Mr Hicks and another Australian prisoner, Mamdouh Habib, will not face the death penalty and will be able to serve any sentence in Australia. But Major Mori warned the tribunals could establish "a dangerous precedent. "The reality is, we wouldn't tolerate these rules if they were applied to US citizens," he said. * * * The Australian: January 22, 2004 HICKS IN SHOW TRIAL: HABIB LAWYER http://www.theaustralian.news.com.au/common/story_page/ 0,5744,8459949%255E1702,00.html (AAP) - CLAIMS by the US military lawyer for Australian terror suspect David Hicks that his military trial would be unfair were today welcomed by the lawyer for another Australian terror suspect. Stephen Hopper is acting for Sydney man Mamdouh Habib, who is being held without charge at US military base Guantanamo Bay, Cuba on suspicion of terror-related activities. Mr Hopper said he welcomed comments made by US military lawyer, Marine Corps Major Michael Mori, appointed to represent Hicks in flagged military trial. During his first press conference in Washington since his appointment to the Hicks case, Major Mori said Hicks' trail process would not be fair or just and he should stand trail in Australia. Mr Hopper said he agreed with Major Mori's comments. "It's good to see that someone who is part of the military regime is coming out and stating what the process really is," Mr Hopper said. "(Hicks' trial) is a show trial and its designed to attain a guilty verdict and justice won't be obtained." Mr Hopper said he was heartened by Major Mori's suggestion that Hicks be tried in Australia. "Its also appropriate that he says Mr Hicks, and indeed following from that, Mr Habib, should be put before the Australian law, rather than under this blatantly unfair system." Mr Hopper said he was initially concerned the US appointed military lawyers would not truly represent their clients. "Major Mori has certainly come out and shown that he's a true advocate and a man who believes in principles and he'll stand by those principles and argue fearlessly in defence of his client and that's something we respect." Mr Hopper said Habib's legal status at Guantanamo Bay remained unchanged. * * * NEWS.COM.AU: January 22, 2004 HICKS TRIAL WILL BE UNFAIR: LAWYER http://www.news.com.au/common/story_page/0,4057,8459464^1702,00.html (AAP) - THE US military lawyer for Australian terror suspect David Hicks today said his military trial would be unfair and Hicks should be tried back in Australia. Hicks, 28, is detained at a US military base at Guantanamo Bay, Cuba, and has been earmarked to be among the first Guantanamo detainees to face a military trial. He was recently appointed a US military lawyer, Marine Corps Major Michael Mori, but has not been charged since his capture among Taliban forces in Afghanistan in December 2001. Maj Mori today held his first news conference in Washington since he was appointed to the Hicks case two months ago. He said Hicks' trail process would not be fair or just, according to ABC radio. But his attack on the process stopped short of personally criticising US president George W Bush. "The military commissions will not provide a full and fair trial," Maj Mori told reporters in Washington. "The commission process has been created by those only with a vested interest in conviction." Major Mori was asked if his criticism was levelled at his commander-in-chief, President Bush, who ultimately signed off on the military commission. "Well if I'm criticising the rules, obviously the people who signed the two military commission orders and the nine instructions, they created those, but I'm not attacking anyone personally here." Maj Mori said he was concerned other nations might in the future use similar legal processes against American citizens, something he said the US government would find unacceptable, according to the ABC report. He said he was still to see any of the charges against his client, and expressed concerns about his ability to prepare a decent case. "Are we going to be given the time to prepare? "Don't forget governments had this for two years, who knows how many investigative agencies have been working on thi," Maj Moris said. "But what happens when the defence get (it), what resources, what experts will be allowed, how freely (are) we're going to be able to move and obtain evidence?" But despite his concerns, Maj Mori planned to remain on the Hicks case. "I'm not going to abandon David Hicks," he said. Maj Morri has visited Hicks at Guantanamo Bay three times and said his client's physical condition was as expected, given the conditions of his detention. "Mentally, he is probably, the best way to describe it is degenerated to the point where his main concerns are the basic human instincts, his desires what he needs," Maj Morri said. He said he saw no reason why Hicks should not be tried in Australia under Australian law. * * * The Australian: January 22, 2004 AUSTRALIAN GOVERNMENT REJECTS SENDING HICKS HOME http://www.theaustralian.news.com.au/common/story_page/ 0,5744,8459503^1702,00.html (AAP) ATTORNEY-GENERAL Philip Ruddock today rejected calls from David Hicks's American military lawyer for his client to be sent back to Australia. Marine Corps lawyer Major Michael Mori said Hicks would not be able receive a fair trial before an American military tribunal. He also said he saw no reason why Hicks should not be tried in Australia under Australian law. Major Mori was appointed by the US military to defend Hicks, who has been detained at Guantanamo Bay, Cuba, since he was captured among Taliban forces in Afghanistan in 2001. Mr Ruddock said there was no provision under Australian law for Hicks and fellow Australian Guantanamo Bay detainee Mamdouh Habib to be put on trial in Australia. He said new anti-terrorism laws in Australia did not cover acts committed before the laws came into force. "Our view has always been that if we were to return Mr Hicks and Mr Habib to Australia there are no charges that we would be able to bring against them under our law as it was at that time," Mr Ruddock told ABC radio. "There would be under our law as it is now, but there wasn't in terms of our law at that time." Mr Ruddock said Major Mori was just doing his job as Hicks's lawyer by criticising the American military tribunal system. "It says that he is giving Mr Hicks the best defence that he can and one of the ways in which defence lawyers often put their case on behalf of their clients is to advocate about the nature of the system which is dealing with them," he said. Mr Ruddock said it was appropriate for the US to use military commissions to try suspects who had committed crimes during the War on Terrorism. "Military commissions have been the normal way in which matters that require a trial (are) addressed," he said. "They are part of the American system, they have certainly been used in an Australian context where we are trying people who have committed offences in a war situation." Hicks is yet to be charged with any offence. * * * Reuters: January 21, 2004 Military Lawyer Slams U.S. Terrorism Tribunals By Deborah Charles http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=4179670 WASHINGTON (Reuters) - The U.S. Marine Corps lawyer assigned to defend an Australian terror suspect being held at the Guantanamo naval base in Cuba Wednesday criticized the military tribunal process and said it will not allow a fair trial. Maj. Michael Mori, who in November was assigned to be the military attorney for David Hicks -- an Australian held at the U.S. military prison in Cuba -- said the system set up by the Pentagon for trials of non-U.S. citizens captured during what U.S. officials call the war on terror was unfair. "The military commissions will not provide a full and fair trial," Mori told a news conference. "The commission process has been created and controlled by those with a vested interest only in convictions." "Fairness is extremely important in all cases, particularly those that have commanded such international attention and will have international impact," he said. Mori has met three times with Hicks, who has been held for two years in Guantanamo Bay along with hundreds of other prisoners detained during the U.S. invasion of Afghanistan. None of the roughly 660 prisoners held at Guantanamo Bay has yet been charged with any crimes although Pentagon officials have suggested that military trials for some could begin soon. Most held at the base were arrested during the U.S. war that toppled the Taliban in Afghanistan. Washington accused the Taliban of harboring al Qaeda leader Osama bin Laden, who is blamed for the Sept. 11, 2001, attacks on the United States. President Bush authorized the military commission trials two months after the Sept. 11 attacks. "STRIKING INJUSTICE" The tribunals have sparked criticism in the United States and abroad from rights groups and legal activists who say the procedures are designed to produce convictions. Mori agreed, saying, "Using the commission process just creates an unfair system that threatens to convict the innocent and provides the guilty a justifiable complaint as to their convictions." Under the rules, the Pentagon can monitor communications between prisoners and their lawyers, and there is no independent judicial review process. Appeals go only to a special military review panel named by the Pentagon, to the secretary of defense or the president. Mori and four other military defense lawyers filed a brief with the Supreme Court last week challenging the constitutionality of the tribunals. In a friend- of-the-court brief filed to the U.S. high court in connection with a suit challenging some prisoners' detention, they argued that foreign terrorism suspects being tried in the tribunals should be given the right to appeal to civilian courts. Australia, which opposes the death penalty, already has won assurances from the United States that Hicks and another Australian detainee, Mamdouh Habib, could not be sentenced to death. Both men would also be allowed to return home to serve any prison sentences if convicted. Mori said the most "striking injustice" of the system was that commission members, who take the place of an independent judge, do not have the authority to decide issues that could end up in the dismissal of a charge. Mori said although he and other military lawyers assigned to defend prisoners at Guantanamo Bay had complained about the tribunal system, their concerns had not been addressed. Mori, who said he called the news conference to draw attention to problems in the tribunal system, said the existing military justice system was a better alternative. "There is no valid reason to create a new justice system only for non-U.S. citizens," he said. * * * CBS News: January 21, 2004 60 Minutes II - HIS YEAR IN HELL http://www.cbsnews.com/stories/2004/01/21/60II/main594974.shtml (CBS) Is it possible the United States sent an innocent man out of the country to be tortured? That's the disturbing question at the heart of a case that may reveal a secret side of the war on terrorism -- one that the government does not want to talk about. It involves an accusation that the justice department sent a man from the U.S. to Syria to be interrogated and tortured. The man making the claim is a Syrian-born Canadian citizen who was taken into custody, under suspicion of being connected with al Qaeda, while changing planes in New York. Now, Maher Arar tells Correspondent Vicki Mabrey about what became his year in hell, which began when federal agents stopped him for questioning at JFK International Airport. "I cooperated with them 100 percent. And they always kept telling me, 'We'll let you go on the next plane,'" says Arar. "They did not." It would be more than a year before Arar would see his family again. In September 2002, he'd taken his wife and two children on a beach vacation in Tunisia. But he flew home alone early for his job as a software engineer. What he didn't know is that he'd been placed on the U.S. immigration watch list. So when the agents began questioning him, he tells 60 Minutes II that he wasn't concerned -- at least not at first. "The interrogation lasted about seven or eight hours, and then they came, and shackled me and chained me," recalls Arar. "I said, 'What's happening here?' And they would not tell me. They said, 'You are gonna know tomorrow.'" He spent the night in a holding cell. The next day, he was shackled, driven to the Metropolitan Detention Center in Brooklyn and locked in solitary confinement. Agents told him they had evidence that he'd been seen in the company of terrorist suspects in Canada. "What they accused me of being is very serious. Being a member of al Qaeda," says Arar, who denies any involvement with the organization. Arar wasn't allowed to make a phone call, so when his wife, Monia, didn't hear from him, she called the Canadian embassy. "Nobody knew at that time where he was. He vanished," says Monia, who didn't hear from him for six days. Then, American officials acknowledged they were holding Arar in Brooklyn. A Canadian consular official visited and assured Arar he'd be deported home to Canada. But the justice department had a different plan. After two weeks in U.S.custody, Arar was taken from his cell by federal agents in the middle of the night. "They read me the document. They say, 'The INS director decided to deport you to Syria,'" recalls Arar. "And of course, the first thing I did was I started crying, because everyone knows that Syria practices torture." Arar says he knows because he was born in Syria. He emigrated to Canada with his parents as a teenager. But, returning to Syria as an accused terrorist, he had good reason to be afraid. Torture in Syrian prisons is well-documented. The state department's own report cites an array of gruesome tortures routinely used in Syrian jails. And in a speech last fall, President Bush condemned Syria, alongside Iraq, for what he called the country's "legacy of torture and oppression." Nevertheless, deportation agents flew Arar on a specially chartered jet to Jordan, and the Jordanians drove him to Syria. "When I arrived there, I saw the photos of the Syrian president, and that's why I realized I was indeed in Syria," says Arar. "I wished I had a knife in my hand to kill myself." The next morning, Arar says a Syrian intelligence officer arrived carrying a black electrical cable, two inches thick and about two feet long. "He said, 'Do you know what this is?' I said, I was crying, you know, 'Yes, I know what it is. It's a cable.' And he said, 'Open your right hand.' I opened my right hand ... and he beat me very strongly," says Arar. "He said, 'Open your left hand.' And I opened my left hand. And he beat me on my palm, on my left palm. And then he stopped, and he asked me questions. And I said to him, 'I have nothing to hide.'" Arar says the physical torture took place during the first two weeks, but he says he also went through psychological and mental torture: "They would take me back to a room, they call it the waiting room. And I hear people screaming. And they, I mean, people, they're being tortured. And I felt my heart was going to go out of my chest." But Imad Moustapha, Syria's highest-ranking diplomat in Washington, says Arar was treated well. He also told Mabrey that Syrian intelligence had never heard of Arar before the U.S. government asked Syria to take him. Did the U.S. give them any evidence to back up the claim that Arar was a suspected al Qaeda terrorist? "No. But we did our investigations. We traced links. We traced relations. We tried to find anything. We couldn't," says Moustapha, who adds that they shared their reports with the U.S. "We always share information with anybody alleged to be in close contact with al Qaeda with the United States." The Syrians allowed Canadian officials six short visits with Arar. But Arar says he was warned not to tell them about the torture or how he was being held -- in an underground cell 3 feet wide, 6 feet long and 7 feet high. It was his home for a full 10 months. "It's a grave. It's the same size of a grave. It's a dark place. It's underground," says Arar. He says the Syrians were pressing him to confess he'd been to an al Qaeda training camp in Afghanistan: "They just wanted to find something that the Americans did not find -- and that's when they asked me about Afghanistan. They said, 'You've been to Afghanistan,' so they would hit me three, four times. And, if I hesitate, they would hit me again." Arar says he signed a confession because he was "ready to do anything to stop the torture." But he claims that he had never been to Afghanistan, or trained at a terrorist camp. "Just one hit of this cable, it's like you just forget everything in your life. Everything," he says. Back in Canada, Monia was fighting for her husband's life. She marched in front of parliament, and protested in front of the U.S. embassy. Eventually, she got the ear of then-Canadian Prime Minister Jean Chretien. On the floor of parliament, Chretian voiced mounting frustration with the U.S. The job eventually went to Gar Pardy, then one of Canada's top diplomats, to get answers from the Americans. "The American authorities acknowledged this was a Canadian citizen that they were dealing with. He was traveling on a Canadian passport. There was no ambiguity about any of these issues," says Pardy, who believes he should have been sent to Canada, or dealt with under American law in the United States. But not sent to Syria. But while Canadian diplomats were demanding answers from the U.S., it turns out that it was the Royal Canadian mounted police who had been passing U.S. intelligence the information about Arar's alleged terrorist associations. However, U.S. government officials we spoke to say they told Canadian intelligence that they were sending Arar to Syria -- and the Canadians signed off on the decision. Pardy says if that's true, it would have been wrong all around: "I would dispute that the people who were making any statements in this context were speaking for the Canadian government. A policeman talking to a policeman in this context is not necessarily speaking for the Canadian government. And the Canadian government wanted Arar back. It took a year and a week from the time Arar was detained in New York for Arar to be released. He arrived home in Canada dazed and exhausted. Why did Syrian officials let him go? "Why shouldn't we leave him to go? We thought that would be a gesture of good will towards Canada, which is a friendly nation. For Syria, second, we could not substantiate any of the allegations against him," says Moustapha. He added that the Syrian government now considers Arar completely innocent. But does he feel any remorse about taking a year out of Arar's life? "If this was the case, it's not our problem," says Arar. "We did not create this problem." 60 Minutes II has learned that the decision to deport Arar was made at the highest levels of the U.S. justice department, with a special removal order signed by John Ashcroft's former deputy, Larry Thompson. Ashcroft made his only public statement about the case in November. He said the U.S. deported Arar to protect Americans -- and had every right to do so. "I consider that really an utter fabrication and a lie," says Michael Rather, Arar's attorney and head of the Center For Constitutional Rights. He plans to file a lawsuit against Ashcroft and several other American officials. "They knew, when they were sending him to Syria, that Syria would use certain kinds of information-gathering techniques, including torture, on him. They knew it," says Ratner. "That's why he was sent there. That's why he wasn't sent to Canada." Before deporting Arar to Syria, American officials involved in the case told 60 Minutes II they had obtained assurances from the Syrian government that Arar would not be tortured -- that he would "be treated humanely" "The fact that you went looking for assurances, which is reflected here, tells you that even in the minds of people who made this decision," says Pardy. "I mean, there were some second thoughts." No one at the justice department would talk to 60 Minutes II on camera about Arar, but they sent us this statement saying: "The facts underlying Arar's case... [are] classified and cannot be released publicly." "We have information indicating that Mr. Arar is a member of al Qaeda and, therefore, remains a threat to U.S. national security." Despite the American accusations, Arar has never been charged with a crime and, today, he's free in canada. He's afraid, though, that he might never be able to clear his name. Arar's case is unusual because he was sent directly from U.S. soil to Syria. But intelligence sources tell 60 Minutes II that since 9/11, the U.S. has quietly transported hundreds of terror suspects captured in different parts of the world to Middle Eastern countries for tough interrogations. * * * Toronto Star: January 21, 2004 ARAR TO FILE LAWSUIT AGAINST US Multimillion dollar suit already filed against Syria http://www.thestar.com/NASApp/cs/ContentServer ?pagename=thestar/Layout/Article_Type1&c=Article&cid=1074683527588 &call_pageid=968332188492&col=968793972154 OTTAWA (CP) - Lawyers for a Canadian who was deported to Syria by American authorities in 2002 say they will formally file a law suit against U.S. Attorney General John Ashcroft in New York on Thursday. Maher Arar, a 33-year-old computer engineer who lives in Ottawa, will participate by telephone in a New York news conference announcing the filing. The American Centre for Constitutional Rights, which announced last year that it would oversee Arar's suit, said the legal papers will be filed in the U.S. District Court for the eastern district of New York. The centre would not comment on the details of the suit before the news conference. Arar, a Syrian-born Canadian, was detained by American authorities in New York in the fall of 2002 while on his way home from a visit to Tunisia. Because he holds dual citizenship, he was deported to Syria, where he says he was tortured before being released without explanation last October. The Americans said he was an Al Qaeda terrorist suspect, although he has never been charged with a crime in any country. He has already filed a multimillion-dollar damage suit against Syria and Jordan. He says he was beaten by Jordanian officials before being handed over to Syria. The New-York-based Center for Constitutional Rights is a non-profit legal and educational organization dedicated to protecting and advancing rights guaranteed by the U.S. constitution and the United Nations Universal Declaration of Human Rights. Since it was founded in 1966, it has filed suits in numerous causes, including early racial discrimination cases. It participated in suits which allowed the establishment of so-called buffer zones around abortion clinics. "Over the last four decades, CCR has played an important role in many popular movements for social justice," the organization says on its Web site. Arar's suit will be brought under the Alien Tort Claims Act. In 1980, the centre won a case which created a right under this act to sue for human rights violations occurring anywhere in the world. The Arar deportation created friction between Ottawa and Washington last fall. American officials have said they will notify Canada in future cases, but have not promised that Canadians will never again be sent to a third country. Arar, who says he was interrogated by the Syrians about links to terror groups, including al-Qaida, says he has no such connections. Prime Minister Paul Martin has promised that he will get to the bottom of the Arar case, saying he wants to know if Canadian authorities fed information on Arar to their American counterparts. * * * Toronto Star: January 21, 2004 NEWSPAPER RAIDED OVER ARAR LEAK Syrian-Born Canadian's Capture, Imprisonment Sparked Outrage By Sue Bailey and Jim Bronskill, Canadian Press http://www.thestar.com/NASApp/cs/ContentServer ?pagename=thestar/Layout/Article_Type1&c=Article&cid=1074683527849 &call_pageid=968332188492&col=968793972154 OTTAWA - The search of a newspaper reporter's house today by RCMP officers seeking evidence linked to the Maher Arar case "smacks of a police-state mentality," said an outraged vice-president of CanWest Global Communication Corp. Gordon Fisher said the rare move by the Mounties was an act "one might equate with the former Soviet Union rather than a Canadian democracy." Ten RCMP officers with a search warrant arrived at 8 a.m. at the home of Ottawa Citizen reporter Juliet O'Neill. The Citizen is owned by CanWest. Police were seeking the source of an alleged information leak stemming from a Nov. 8 story that O'Neill wrote on Arar, an Ottawa telecommunications engineer who became entangled in the war against terrorism. Arar, a Canadian citizen who comes from Syria, was deported to the country of his birth by U.S. authorities after being stopped in New York in 2002. O'Neill's article cited "a security source" and a leaked document offering minute details of what Arar allegedly told Syrian military intelligence officials during his incarceration. Following his release last fall, Arar said he was tortured for months by Syrian authorities who pressed him about any links to the al-Qaida terrorist network. O'Neill reported that Arar told the Syrians he attended an al-Qaida training camp in Afghanistan in 1993. Arar later insisted he only made a bogus confession under torture, and denied any involvement in terrorism. He has also called for a full public inquiry into what role Canadian police and intelligence officials might have played in his deportation. The federal government has so far rejected those calls. The police search today and news that veteran journalist O'Neill may be charged under the federal Security of Information Act are disturbing signs of police intimidation, her bosses said. "It is clear to us that the actions of today are meant to divert us from our attempts to inform the public of any role played by the RCMP, CSIS (the Canadian Security Intelligence Service) or the federal government in this matter," said Fisher of CanWest. "We will not be deterred." Mounties searched O'Neill's home for more than five hours before leaving with a box of evidence. O'Neill, looking drawn, emerged from her house with criminal defence lawyer Wendy Montgomery, who held up a copy of the search warrant for a crowd of photographers and reporters. Another warrant was executed at O'Neill's office in the newspaper's city hall bureau. The search warrants, approved by a judge, allowed police to seize O'Neill's notebooks, computer data, agendas and other evidence considered relevant. Police were conducting a probe into a possible breach of the Security of Information Act in relation to "alleged leaks of information regarding Mr. Arar," said Sgt. Gilles Deziel, an RCMP spokesman. Ottawa Citizen editor-in-chief Scott Anderson said the RCMP searches were conducted in relation to Section 4 of the federal Security of Information Act. It contains broad prohibitions against distribution or unauthorized possession of sensitive government materials. "They went through documents and her computer and I'm not sure what else," Anderson said. "It seems like it's now a crime to even know this stuff." A conviction under the security law carries a maximum penalty of 14 years in prison. The law, based largely on the former Official Secrets Act, was passed following the Sept. 11, 2001, terrorist attacks on the United States. Anderson called the searches a breach of press freedoms guaranteed under the Charter of Rights. "We will defend this vigorously and well." The newspaper has asked the Crown to have anything taken from O'Neill's house sealed at the Ontario provincial court house "so that we can pursue action against this search warrant, if necessary," Anderson said. Public Safety Minister Anne McLellan said earlier this month that the Mounties would try to determine the names of sources who leaked information about the Arar case to the media. Federal watchdog bodies that keep an eye on the RCMP and CSIS are conducting separate inquiries into any role the respective agencies may have played in the Arar case. * * * The Guardian (UK): January 21, 2004 UK SHOULD FACE COURT FOR CRIMES IN IRAQ, SAY JURISTS By Ewen MacAskill, diplomatic editor http://www.guardian.co.uk/uk_news/story/0,3604,1127371,00.html A panel of international lawyers and academics called on the International Criminal Court yesterday to investigate Britain for alleged war crimes in Iraq. The eight-member panel, mainly British but including representatives from France, Canada and Ireland, cited the use by the British military of cluster bombs in civilian areas. It also said Britain was complicit in the actions of the US military, including the killing of international journalists. A copy of the findings was sent to the ICC, which is based in the Hague, and to the attorney general, Lord Goldsmith. The panel, which includes Bill Bowring, professor of human rights and international law at London Metropolitan University, took evidence in London in November. Although its final report has not been completed, the panel yesterday issued an executive summary. In it the panel said it answered yes to the question "Is there sufficient cause and evidence for the International Criminal Court prosecutor to investigate members of the UK government for breaches of the ICC statute in relation to crimes against humanity and/or war crimes committed during the Iraq conflict and occupation 2003?" Professor Bowring said the RAF had dropped cluster bombs around Baghdad and the British army had fired artillery shells with cluster munitions around Basra. He said these bombs were not accurate weapons capable of pinpoint accuracy and had exploded over large areas. He noted the US attacks which resulted in the death of journalists: on the offices of the Arab satellite network, al-Jazeera, in Baghdad and on the Palestine hotel in Baghdad, where journalists were staying. Prof Bowring said the panel had also investigated the use of depleted uranium, damage to the civilian infrastructure, including electricity supplies, the conduct of the US-British occupation and the preservation of the cultural heritage of Iraq, but the results had been inconclusive. The ICC, which came into being in 2002, was set up as a permanent court to deal with crimes against humanity and war crimes. Luis Moreno-Ocampo, the ICC's chief prosecutor, was prominent in the trial of former members of the Argentinian junta. Although, on balance, it seems unlikely that the ICC will investigate the allegations against the British government, an ICC spokeswoman yesterday refused to rule it in or out. "We do not usually comment on issues that might fall under the jurisdiction of the court," she said. A spokesman for the Ministry of Defence defended the use of cluster bombs. "The thing about cluster munitions is they are not classified as unlawful and provide us with a legitimate capability," he said. "We reserve the right to use them against military objectives and if we did not we might have to use alternative military equipment, such as an artillery barrage that might cause more [civilian] damage." The international panel, in addition to Prof Bowring, is made up of: William Schabas, professor of human rights law at the National University of Ireland; Christine Chinkin, professor of international law at the London School of Economics; Reni Provost, associate professor at the faculty of law of McGill University in Canada; Paul Tavernier, professor, University of Paris Sud; Nick Grief, professor of law, University of Bournemouth; Guy Goodwin-Gill, QC, senior research fellow, All Souls College, Oxford; and Upendra Baxi, professor of international law, Warwick University. The panel is supported by Peacerights, a relatively new human rights group. Phil Shiner, its spokesman, said: "International law does not recognise victor's justice and both sides to the Iraq war must be fully accountable. "Many respected groups and lawyers have expressed serious concerns about the apparently unnecessary and unjustified civilian casualties, particularly because of the use of cluster bombs in urban areas." * * * January 21, 2004 MILITARY LAWYERS URGE ROLE FOR HIGH COURT Amicus brief by defenders of accused terrorists argues justices should assert jurisdiction over tribunals By Vanessa Blum, Legal Times http://www.law.com/jsp/article.jsp?id=1074259238056 Hundreds of individuals and groups weighed in last week on the question of whether prisoners captured in the war on terrorism and held at Guantanamo Bay should have access to the federal courts. Among the parties signing on to 17 amicus curiae briefs filed with the U.S. Supreme Court: two former secretaries of the navy, 175 members of the British Parliament, several retired federal appellate judges, a coalition of former U.S. prisoners of war, Amnesty International and the American Civil Liberties Union. All the briefs filed last week came down squarely in support of those detained at Guantanamo Bay. Except one. The defense team assigned to represent accused terrorists before military commissions filed a brief staking out a middle ground. The brief is noteworthy because it represents the first public criticism from within the Pentagon to the procedures that will govern the military tribunals. And coming before a Supreme Court that is so often closely divided, the lawyers' arguments could prove influential. In their brief, the five military defense attorneys assigned to represent accused terrorists before military commissions endorse the president's wartime power to hold enemy combatants indefinitely, but urge the Supreme Court not to close the door on lawsuits arising from military commission proceedings. The careful posture reflects the lawyers' unique position as active duty military officers and zealous advocates for those who may be tried before commissions. "These are military men and women who trust their commander in chief, but trust has never been enough when something as fundamental as justice is on the line," says Georgetown University law professor Neal Katyal, who advised the defense team on the brief. "We'd like the Court to recognize that habeas corpus jurisdiction exists for those who face military commissions." In the consolidated cases of Rasul v. Bush and Al Odah v. United States, the Bush administration maintains that the U.S. naval base at Guantanamo Bay in Cuba is technically foreign soil and that noncitizens held there have no access to U.S. courts. The deadline for parties to file briefs supporting the government's position is Feb. 17. Air Force Lt. Col. Sharon Shaffer, deputy chief defense counsel for military commissions, says the defense team submitted the brief to make it clear to the Supreme Court that a broad jurisdictional ruling in the case would impact the rights of their future clients. "We were fearful of the fact that the Supreme Court might take an additional step and say that no individual, no enemy alien ever has access to U.S. courts," says Shaffer, who spent three years as a military judge before taking her current post. Shaffer is the most senior lawyer to sign the brief. Chief Defense Counsel Air Force Col. Will Gunn, who under the Pentagon's rules acts more as an administrator than a hands-on defense counsel, did not see the brief before it was filed. Before filing the brief, the defense lawyers notified the general counsel's office of the Defense Department and sought ethics opinions from their services. Critics of the military commission process say they find it encouraging that the Defense Department allowed the brief to be filed at all. "This shouldn't come as a surprise," says Pentagon spokesman Maj. Michael Shavers. "We've said all along that we expect defense counsel to zealously defend their clients." While the military defense lawyers stop short of formally opposing the government, their brief sharply criticizes Pentagon plans for trying alleged terrorists before military commissions. In the absence of federal court review, the lawyers argue, military commissions amount to a "legal black hole." Coming just two weeks after new Pentagon regulations detailing the appellate process for military commissions, the brief raises questions about the constitutionality of a judicial system that begins and ends with the executive branch, bypassing any review by civilian courts. "The Constitution cannot countenance an open-ended Presidential power, with no civilian review whatsoever, to try anyone the President deems subject to military tribunal, whose rules and judges have been selected by the prosecuting authority itself," the brief states. The defense team signals that it hopes to obtain broader protections for those facing military commissions by turning to the federal courts -- even though the system designed by the Defense Department does not provide for any such review. Under the Pentagon's rules, verdicts reached by military commissions will automatically proceed to a three-member review panel and then to the secretary of defense or the president for final disposition. "It's our view that the federal courts should be open to them," says Army Maj. Mark Bridges, a member of the defense team. "We have concerns about the independence of the review panel and whether it complies with international law," he says. The lack of any independent appellate review has also been the subject of consistent criticism from academics, the American Bar Association and an array of watchdog groups. "This is a process in which the military is the captor, jailer, prosecutor, defense lawyer and judge," says Neil Sonnett, a Miami defense lawyer who chairs the ABA's Task Force on the Treatment of Enemy Combatants. "Unless there is a process that provides ultimate appeal to a civilian court, there is going to be a perception that these are kangaroo courts." Sonnett, who says the ABA reviewed a draft version of the Dec. 30 regulations, calls the final rules a "substantial improvement." "I think it represents a good-faith attempt to make the process at least appear independent," Sonnett says. Also on Dec. 30, the Defense Department tapped four civilian lawyers to serve as review panel members: former U.S. Attorney General Griffin Bell; former Secretary of Transportation William Coleman Jr.; Rhode Island Chief Justice Frank Williams; and former U.S. Rep. and current Pennsylvania state judge Edward Biester. Review panel members will serve two-year terms and cannot be reappointed. The panels are encouraged to review written submissions from a defendant's home government, and will publish their opinions. Neither the secretary of defense nor the president in his final review can overturn an acquittal or increase the sentence imposed by a military commission. The appointment of prominent civilian jurists to serve on review panels was clearly aimed at deflecting the criticism of those who claimed the review panel lacked independence. "We have the right process, and we picked the right people," says Air Force Maj. John Smith, a Pentagon lawyer who helped write the rules. "No one sitting on that panel has any incentive to rule one way or another." No one has yet been charged before a military commission. Six individuals have been designated as subject to commission trials, and two detainees, David Hicks of Australia and Salim Ahmed Hamdan of Yemen, have been assigned military defense counsel. Hamdan's military defense lawyer, Navy Lt. Cmdr. Charles Swift, says he fears that military commission proceedings will not be seen as legitimate without federal court review. "I don't believe the rules improve the situation," Swift says. "It remains a closed loop." He adds, "I use the analogy of a football game. In the present system, the government is the coach. They are also the sole people on the rules committee and the chief referee. I think that creates, at a minimum, a perception issue that this will be unfair." * * * January 20, 2004 OFFICIALS SUSPECT DETAINEE MAY BE 20TH HIJACKER Guantanamo Bay prisoner reportedly not talking to investigators From David Ensor, CNN Washington Bureau http://www.cnn.com/2004/US/01/20/possible.hijacker/index.html WASHINGTON (CNN) -- A prisoner at the U.S. Navy base at Guantanamo Bay, Cuba, is among a handful of people suspected of being the so-called 20th al Qaeda hijacker planned for the September 11 attacks, according to U.S. officials. A senior official said the detainee, known as al-Qahtani, is "one of a half dozen or so individuals" whom investigators suspect the lead hijacker, Mohamed Atta, may have planned to put on United Airlines Flight 93. That plane crashed into the fields of rural Pennsylvania near Shanksville after passengers overpowered the hijackers. Speculation of a possible 20th hijacker emerged immediately following the terrorist attacks. Four hijackers were aboard Flight 93, while five hijackers were on the three other planes, which hit the World Trade Center in New York and the Pentagon outside Washington. (Full story) Al-Qahtani (whose full name has not been disclosed) is "not saying anything" to his interrogators at Guantanamo, an official said. Newsweek magazine first reported that al-Qahtani was suspected to have been a potential 20th hijacker and that he was captured by U.S. troops in Afghanistan. U.S. immigration authorities turned the man away at Orlando International Airport in Florida in August 2001, Newsweek reported. The immigration officer who stopped him from entering the United States is expected to testify soon before the independent commission investigating the attacks of September 11, 2001, officials said. The only defendant facing prosecution in the United States in connection with the attacks is Zacarias Moussaoui, a Frenchman of Moroccan descent in federal custody in Virginia. Authorities initially suggested Moussaoui might be the 20th hijacker. He has admitted to being a member of al Qaeda but has denied involvement in the attacks. The case is on hold while the government appeals U.S. District Judge Brinkema's ruling barring the prosecution from pursuing the death penalty against Moussaoui and from introducing any evidence of the September 11 attacks. Brinkema imposed the sanctions on the Justice Department for refusing to make three al Qaeda captives available for testimony. The United States considers the Guantanamo detainees to be terrorism suspects. They are housed at a facility known as Camp Delta. Most were captured in Afghanistan during the U.S.-led war that toppled the Taliban regime. For more than two years, the U.S. government has been interrogating the detainees and deciding whether they will face military tribunals or be released. Human rights groups have criticized the United States over its indefinite detention of prisoners at Guantanamo. The U.S. government has said the interrogation of detainees has yielded important information. In November, the U.S. Supreme Court agreed to hear two appeals over whether hundreds of terrorist suspects in secret custody are being held unlawfully. This month, the high court also agreed to hear the case of a U.S.-born man captured during the fighting in Afghanistan and held incommunicado and without charges. * * * January 20, 2004 GUANTANAMO LEGAL GROUP LAUNCHED http://news.bbc.co.uk/2/hi/americas/3412073.stm Families of Britons held at Guantanamo Bay have launched a new human rights body because they say they have "fallen into a legal black hole". Nine Britons are among more than 600 terror suspects held at the US base on Cuba for two years without trial. The Guantanamo Human Rights Commission aims to unite families and lawyers of detainees from around Europe to highlight their plight. Relatives say the government must do more to return the Britons to the UK. The campaign was launched at the House of Commons on Tuesday with the help of brother and sister actors Corin and Vanessa Redgrave. Speaking at the launch Mr Redgrave said: "Our hope is to speak as directly and simply as possible... to the American conscience, to say that human rights law, humanitarian law, must be applied to these 660 young men." The detainees include those arrested during the war in Afghanistan and others suspected of links with the former Taleban regime or al-Qaeda. The new commission is working with pressure group the American Civil Liberties Union (ACLU) to call for the US to deal with the detainees according to American and International law. Government warned Louise Christian, solicitor for detainee Feroz Abbasi, from Croydon in south London, said she had "good information" that, although the Britons could be returned to the UK there was disagreement within government about how Britain should deal with them. "Home Secretary David Blunkett is said to be opposed to having them sent back here," Ms Christian said. She added: "It may be occurring to the British Government that if they do come back and it turns out they were all completely innocent and were not posing a threat to the country at all then the government is going to have egg on its face for not doing anything for them for two years." She said the government had been saying the problem would be resolved "in a few weeks" since the beginning of November but still nothing had happened. Mr Abassi's mother, Zumrati Juma, said the British Government had dealt with the situation "not very well at all". She said: "No question is answered. They say they will put it to America and we never hear back." Riasoth Ahmed, father of Ruhal Ahmed from Tipton, added: "I don't understand why the British Government is not doing something to help my boy. It's been two years - how long do I wait?" 'Face-saving need' GHRC supporter Professor Philippe Sands, a law professor at University College London, said the detainees "had fallen into a legal blackhole". He said the American authorities wanted a guarantee suspects would face trial if returned to the UK but the UK Government could not ensure this because such a decision would be left to the independent Crown Prosecution Service. Hopes were raised earlier this month that some of the Britons may be released shortly when a senior US official said seven of the nine Britons would be repatriated if the UK "managed them". This prompted UK Home Secretary David Blunkett to say the Britons would either face a trial in the US or be returned home, but he offered no firm assurances. * * * Cincinnati Enquirer: January 18, 2004 CHIEF OF GUANTANAMO TRIBUNALS WANTS 'TO ENSURE WE GET THIS RIGHT' University of Cincinnati law grad oversees war trials By Carl Weiser, Enquirer Washington Bureau http://www.enquirer.com/editions/2004/01/18/loc_ohgitmo18.html WASHINGTON - John Altenburg has always been in charge of something. He was a camp counselor at Fort Scott Camps in Crosby Township. He supervised teenage boys when he taught English at Elder High School in Price Hill. After graduating from University of Cincinnati Law School in 1973, he began a military career that ended with his directing 1,800 military and civilian lawyers. Now he will be in charge of something that no one has been in charge of before: military tribunals that will determine the fate of more than 600 alleged terrorists held at Guantanamo Bay, Cuba. The job will have a direct effect on international law and the future safety of Americans in an age of terrorism. Altenburg was in the Pentagon on Sept. 11, 2001. The tribunals are controversial, denounced by human rights advocates and questioned by the American Bar Association. Critics say not enough safeguards are built into the system for the defendants and that impartial civilian judges ought to have more review. But Altenburg, 59, says his goal is simple: "To ensure we get this right." "I want to make sure things are run consistent with the laws that exist today while at the same time protecting the future, the future of the development of the law," he said. Military commissions are hundreds of years old, but he said, "This is different from anything that's happened before." Powerful role Defense Secretary Donald Rumsfeld named Altenburg to the post in December. Altenburg said he expects to start in February. His official title is appointing authority for the military commissions, a misleading name for what is actually the top position. Deputy Defense Secretary Paul Wolfowitz had been doing the job. "It's huge. It really is huge," said Joseph P. Tomain, dean of the University of Cincinnati Law School and a friend of Altenburg's. "He's got responsibility for overseeing this whole shebang at this point." Said Human Rights Watch's Wendy Patten, an opponent of the tribunals: "He has a lot of power." According to the Pentagon, Altenburg will approve charges against alleged terrorists; appoint members of the commissions, the judges; approve plea agreements; determine when to open or close cases to the media; and ultimately determine whether a case will be eligible for the death penalty. The cases receive no outside review. They do not go to the Supreme Court. "The appointing authority is the person who supervises the military commission process," a senior defense official said in a Dec. 30 briefing on the appointment. "He makes sure the process runs properly." Nuremberg comparison President Bush determines who is sent through the tribunal process. Altenburg will determine whether he sees probable cause to go ahead with a trial against an alleged terrorist. He picks the three to seven commission members who serve as judge and jury. Conviction requires proof beyond a reasonable doubt, just as in a regular criminal jury trial. Altenburg reports directly to Rumsfeld. Tomain likened it to overseeing the startup of the Nuremberg Commission that meted out justice to top-level Nazis after World War II. "It's a whole legal regime for something we never encountered before," he said. Altenburg is a civilian, for the moment still working for Greenberg Traurig, a corporate law firm two blocks from the White House. He is a 6-foot-1, beefy guy who wears his hair in a buzz cut. He doesn't like to talk about himself, his philosophies or his emotions. He was in the Pentagon the morning of Sept. 11 for a meeting with fellow Pentagon lawyers. He didn't even know the building had been hit because he was behind three sets of closed doors. "I heard people yelling and screaming and running down the hallway," he said. When he went to the parking lot, "There were airplane parts around the car. I didn't know at the time what they were." Altenburg insists his presence at the Pentagon that day will have no effect on how he runs the tribunals. He won't talk about anyone he knew who was killed in the attacks. If Osama bin Laden ends up at Guantanamo Bay, "I'll treat it like any other case," he said. Fairness challenge In November 2001, President Bush authorized use of military tribunals, or commissions as the Defense Department calls them, for trials of suspected terrorists. The tribunals are controversial because defendants will have fewer rights than in civilian courts. Patten, the U.S. advocacy director for Human Rights Watch, said Altenburg can do virtually nothing to ensure fairness. The tribunal itself is too heavily weighted in favor of the prosecution. But he can help make it fairer by ensuring that military officials don't listen in on attorney-client conversations, which is allowed, she said. And he should let civilian lawyers attend trials. "Our concern is that the government has an obligation to ensure that these commissions meet international due-process standards. They do not," she said. She doesn't consider that Altenburg's fault. But Patten said it means he really can't make them fair. How many of the 660 detainees will face trial by tribunal is unclear. In July, Bush declared six detainees eligible for such trials. But no one has been charged. The Pentagon also has resisted saying where trials will be even though the base is preparing to play host to tribunals. In the fall, workers applied a primer coat of paint to a World War II-era structure that everyone at Guantanamo Bay calls the Commissions Building. It is on a hill above the bay and has a new courtroom with cherry wood and red carpet. Self-described soldier Altenburg doesn't know how long the tribunals will last, whether he will live in Guantanamo, or even how much he'll be paid. He's taking a leave of absence from his job. A former Green Beret trained to be part of Special Forces, Altenburg served as a judge advocate general in recent wars, including the Persian Gulf War, Haiti and Kosovo. He retired from the military in 2002 as a major general. In 2000, he gave a motivational speech at Elder. "He said, 'My name is John Altenburg, and I'm a soldier.' That's how he introduced himself," said Toby Heile, Elder's development director and Altenburg's friend from the days they taught together in the 1967-68 school year. "He's just a real humble guy. I don't think the kids knew how big of a guy he was in the military," Heile said. Altenburg grew up mostly in Dayton, attending Chaminade High School, before his parents moved to Detroit for his senior year. He was counselor at the Catholic Church's Fort Scott Camps from 1960 to 1965. He returned to Cincinnati to teach at Elder. After serving in Vietnam as an enlisted soldier, he enrolled at the University of Cincinnati Law School. Altenburg said he stayed out of politics. For starters, he had just married the former Diane Sedler in 1970, whom he met while teaching at Elder. Between law school and a new family, he was pretty busy, recalled law school chum Joseph Trauth, now a partner with Keating, Muething and Klekamp. "We could kind of share the hardships of beginning a family and trying to start a law career and put up with the law school professors and that type of thing," Trauth said. Trauth said even then he was impressed with Altenburg's sense of fairness and his low-key leadership. "A lot of students would be very judgmental about professors. John would always try to see both sides of the issue. He'd say, 'Maybe this guy isn't all bad. I learned this from him,' " Trauth said. On running the tribunals, Trauth said, "He'll have a tough job. But it couldn't be handled by a better man." Cincinnati Law School's Tomain agrees. "He's thoughtful. He's a published scholar. He is a real lawyer-soldier- statesman," Tomain said. "And I mean that quite seriously." If he were a terrorist awaiting tribunal, Tomain said, "I would feel I was going to be treated with utmost professionalism and fairness." [ Contributing: Toni Locy, USA Today. ] * * * Toronto Globe and Mail: January 16, 2004 JUSTICE MINISTER REMOVES HIMSELF FROM ARAR CASE Canadian Press http://www.globeandmail.com/servlet/story/RTGAM.20040116.warar16/BNStory/Front/ Ottawa -- The federal justice minister has removed himself from decisions in the case of Maher Arar, a Canadian deported to Syria by American officials on suspicion of terrorist connections. "I have written to the clerk of the Privy Council to say that I will be withdrawing from any involvement in the Maher Arar case," said Irwin Cotler, who gave Mr. Arar and his family free legal advice before becoming minister. Mr. Cotler said he had referred the matter to the federal ethics counsellor who "advised me that he did not see that there was a conflict of interest in my work." However, Mr. Cotler said his role in the matter may create the appearance of conflict. "Not only must justice be done but it must manifestly be seen to be done," he said. Mr. Cotler said he wants the clerk, Alex Himelfarb, to instruct him on the formal procedures to exclude himself from discussions and decision-making in the case. Mr. Arar, 33, denies being a terrorist and wants a public inquiry into the Canadian government's role in his deportation to Syria, where he said he was tortured for more than a year. Mr. Arar, a Syrian-born Ottawa software engineer, was deported by U.S. officials while he was in New York. Supporters of Mr. Arar issued a news release pleading for Mr. Cotler to reconsider. "If the minister of justice will not be involved in discussions about my case, who will ensure that justice prevails for me and my family?" asked Mr. Arar. Alex Neve, secretary general of Amnesty International Canada, said the Arar case is "one of the most significant issues pertaining to justice and the rule of law facing Canadians and their government today." "Irwin Cotler's voice has been strong and principled, both throughout Maher's incarceration abroad and since his release, in underlining the critical need to serve justice and safeguard human rights in this case," Mr. Neve said. "It is alarming and disappointing that he has now decided to absent himself from government discussions about how to ensure that happens. Maher Arar's case should, instead, be of preoccupying concern to Minister Cotler." Kerry Pither, a spokeswoman with the Maher Arar Support Committee, said "for the justice minister to recuse himself entirely from any discussion on the matter seems to us to be an abdication of his responsibilities." Ms. Pither said Mr. Cotler was never formally retained as legal counsel by the Arar family. "His work on this case, though very important, was informal, much like the efforts of many other members of Parliament then and now." Canadian and U.S. officials have been quoted as saying they were certain that Mr. Arar trained at a camp in Afghanistan that has produced terrorists. Mr. Arar has challenged the unnamed officials to come forward with their claims at a full public inquiry. "I have nothing to hide and I want a public inquiry. If they have nothing to hide, they should want one, too," said Mr. Arar, who denied he has links to the al-Qaeda training camp that was once visited by Osama bin Laden. Canadian officials have said American authorities made a mistake in deporting Mr. Arar. This week, Prime Minister Paul Martin and U.S. President George Bush agreed to terms they say will prevent future such occurrences. * * * London (ON) Free Press: January 16, 2004 LAWYER RAPS ERODED DEMOCRACY Anti-terrorism laws have helped suppress free speech and choice, he argues. JOE MATYAS, Free Press Reporter Anti-terrorism laws enacted in Canada after the 9/11 attacks in the United States are contributing to the erosion of democracy in Canada, a constitutional lawyer said in London yesterday. The new laws have "been used against our own citizens to suppress free speech, the anti-globalization movement, opposition to the closing of schools and hospitals and anti-poverty protests," said Rocco Galati of Toronto. The idea citizens have a right to protest responsibly is being undermined by laws that are suppressing basic rights, he told members of the Women's Canadian Club of London. Demonstrators are increasingly being pictured as anarchists who must be curtailed and those who defend their right to protest are being threatened, he said. Galati said he and another lawyer were threatened with a security charge punishable by up to 14 years in prison for wanting to call a former employee of the Canadian Security Intelligence Service as a witness in an Ottawa demonstration case. Galati, a former federal Justice Department lawyer who has argued more than 2,000 constitutional cases involving governments, made headlines in December when he said he wouldn't take any more cases involving suspected terrorists because of death threats against him. The announcement came one day after Galati held a news conference with Abdurahman Khadr, 20, a Canadian citizen who was freed after being held in a U.S. military prison near Cuba. Galati had pressed the Canadian government to facilitate Khadr's return to Canada. He said such legal representations have been described in the media as 9/11 cases. "There has never been a 9/11 case in Canada," he said, adding no evidence has yet been brought forward to make such a case against any Canadian citizen. Galati said Canada's constitutional democracy and the rights of Canadians are being seriously challenged by police actions in the name of security and by proposed trade agreements. The Quebec national assembly and the old city of Quebec were walled in by a chain-link fence during the Summit of the Americas in 2001 "by simple police order." The fence was erected without an act of Parliament, legislature motion or act of cabinet and 11,000 armed police officers were deployed, he said, adding he told a judge: "Where I come from, that's called a coup d'etat." Galati said demonstrators have every right to alert the public to trade agreements that would put corporations on an even footing with nations and make the rights of people subservient to them. "Understand this," he said. "What it is all about is that Coca Cola will have the same rights as the government of Canada." * * * CNN: January 16, 2004 JUSTICE FILES APPEALS IN 'DIRTY BOMB' CASE Supreme Court asked to intervene quickly From Bill Mears and Terry Frieden, CNN Washington Bureau http://www.cnn.com/2004/LAW/01/16/scotus.padilla.appeal/index.html WASHINGTON (CNN) -- The Justice Department asked the Supreme Court to intervene quickly Friday in the case of whether an American citizen accused of being a terrorist can be held indefinitely and in secret by the government. A federal court had ordered Jose Padilla released from military custody this month. "The government will suffer irreparable harm" if Padilla is released, Solicitor General Ted Olson wrote in his appeal to the Supreme Court. Olson filed two appeals in the case of Padilla, a Brooklyn-born man accused of plotting to detonate a radioactive "dirty bomb" in the United States. He was arrested at Chicago's O'Hare International Airport in May 2002 after a flight from Pakistan. No charges have been filed against him, and access to lawyers and his family has been denied. Justice Department officials said Friday that the effect of their appeals is that Padilla will remain behind bars at a Navy brig in Charleston, South Carolina, for at least another month. In one appeal, the government requested the 2nd Circuit Court of Appeals to delay its December order for Padilla's release. The other appeal went to the Supreme Court, seeking a full review of the case. That could happen in April, with a decision on Padilla's fate by late June. "The president -- acting as commander in chief in a time of war -- has determined [Padilla] poses a grave danger to the national security of the United States and should be detained as an enemy combatant," Olson told the high court. A three-judge panel from the 2nd Circuit concluded that Padilla could not be held indefinitely and in secret without access to an attorney. He was accused of meeting with al Qaeda's former operations chief, Abu Zubaydah, and discussing stealing radioactive material and setting off a crude explosive device. His lawyers say the government was wrong to label him an "enemy combatant" and that there is no evidence that Padilla planned to carry out the alleged plot. They also say Padilla deserves to have any charges against him heard in a civilian court. There is an urgency to the proceedings. In April, the Supreme Court will hear the case of Yasser Hamdi, also a U.S. citizen accused of terrorism. The administration wants the justices to review the Padilla case at the same time. If not, the government would have to wait until the fall, at the earliest. Olson said "expedited consideration" is especially important "in the current conflict, waged against an enemy that operates in secret and plots surreptitious and large-scale attacks on civilian targets." Hamdi was born in Louisiana but grew up in Saudi Arabia. He was arrested on the battlefield in Afghanistan in November 2001 and has been in military custody since then. No charges have been filed against him and he has yet to see a lawyer, though the government has given permission for him to seek counsel. The government had won its arguments in lower courts, but Hamdi's lawyer, Frank Dunham, appealed successfully to the Supreme Court. * * * Toronto Globe and Mail -- January 16, 2004 ARAR CASE BEGAN AMID FEAR OF ATTACK ON OTTAWA By Colin Freeze http://www.globeandmail.com/servlet/story/RTGAM.20040116.wterr0116/BNStory/ Front/ Canadian counterterrorism agents were investigating the possibility of an al- Qaeda plot to blow up targets in Ottawa when they began a probe that would lead to the detentions of Maher Arar and several other Canadian Muslims half a world away. Police have never revealed the reasons for the 10-month jailing of Mr. Arar, who denies any involvement with al-Qaeda and is fighting for a public inquiry in his case. But information obtained by The Globe and Mail points to a series of events that started just before the Sept. 11, 2001, attacks in the United States. In late August, 2001, U.S. border guards discovered a single sheet of paper -- a schematic map of Ottawa marking government buildings and nuclear research facilities -- in an 18-wheeler driven by a man named Ahmad Abou El-Maati. During eight hours of grilling, the 39-year-old Toronto truck driver, a devout Muslim, denied owning the map. But when he returned to Canada, he was dogged by counterterrorism agents. Months later, search warrants were executed at seven Ottawa locations as RCMP officers looked for explosives and diagrams of government buildings. And when Mr. El-Maati travelled to Syria in November, 2001, he was immediately jailed as a terrorism suspect -- the first in a series of Canadian Muslims to face such a fate. Locked up for more than two years, he was freed from prison this week. His Middle Eastern captors no longer regard him as a suspect. And in Canada, where no one has ever been charged with a crime as a result of the investigation, the probe is being described as a necessary precaution. "I would say the chance of it [a plot] being likely was 35 per cent, and 65 per cent not, but it's definitely something you have to follow up on," a government source said Thursday. "You've got to make sure it's not. "I know a lot of people don't believe this, but we are involved in a war -- it's called a war on terror. And in any kind of war, innocents are hurt." This past summer, investigative reporter Seymour Hersh stated in The New Yorker magazine that "the Syrians also helped the United States avert a suspected plot against an American target in Ottawa." On what basis Syrian officials would claim this is not explained. Within the span of a year, a series of Canadian citizens ended up behind bars in Syria. Mr. El-Maati was first, in November, 2001. Then in May, 2002, it was Abdullah Almalki, whose Ottawa residence was searched in the RCMP raids while he was in Malaysia. A few months later, Arwad Al-Bouchi, another Syrian from Ottawa who had by then moved to Saudi Arabia, was also arrested as he entered Syria. Mr. Almalki and Mr. Al-Bouchi remain in jail. Each was arrested while travelling to Syria on what they said were visits to family members. In September, 2002, Mr. Arar was arrested in New York and deported to Syria. U.S. sources have said the Mounties had placed him on a watch list. U.S. agents who intercepted him accused him of being an al-Qaeda agent, and showed him a lease he had signed with Mr. Almalki as proof. Mr. Arar spent 10 months in jail. He has said he had fleeting encounters with Mr. Almalki in Canada, but did not know him. Through a spokeswoman, Mr. Arar has also said he once bumped into Mr. El-Maati in an auto garage, but that he did not know him either. Suspicions surrounding Mr. El-Maati were also raised by the fact that the U.S. Federal Bureau of Investigation is looking for his brother, Amro, after his citizenship papers were found in Afghanistan. But the map seems to be key to the truck driver's ordeal, and he has said as much to people who knew him before he left Canada. "He showed me the map. And the map had literally all kinds of government installations," said a man who used to know him. "If I was a border person and I saw this map with a Middle Eastern-looking person and all these nuclear sites and all these government installations I can understand why they said, 'Well, hey pal, what are you doing?' And apparently they really grilled him. When he came to me he was nearly in tears he was shaken up so bad about it." Mr. El-Maati left Canada, telling friends and family the map was not his and that he was going to leave the suspicion behind and go be with the young wife he met in Syria a few months earlier. He had told friends that CSIS was following him and scuttling his attempts to bring his wife to Canada. At the same time, sources say, counterterrorism agents were telling Mr. El-Maati's associates that he had been to Afghanistan and they wanted to orchestrate a sting operation against him.Mr. El-Maati was arrested when he stepped off the plane in Syria. The country transferred him to Egypt, which did not act on several court orders for his release him until it let him go this week. Just why they decided to do so now is unclear. Mr. El-Maati's father in Toronto and mother in Cairo both said Thursday that their son is happy to see friends and family again, and wants his privacy to be respected. They say he was treated well in custody and will say nothing that might be construed as critical of Egypt. Thursday, at the Toronto airport, Mr. El-Maati's imam -- Aly Hindy of the Salaheddin Islamic Centre in Scarborough -- said that recent conversations he had with Egyptian officials may have helped to free the jailed man. Mr. Hindy was at the airport to greet Muayyed Nureddin, another Canadian jailed in Syria who was freed this week after being detained there for a month. Mr. Nureddin thanked Canadian officials for working to free him from Syria where he was arrested in December. He is not thought to be linked to the other Canadians jailed in Syria. Friends say he was put under scrutiny by CSIS before his capture. In fact, Muslim and Arab groups are beginning to push for a broadening of any public inquiry into the Arar case to examine why information gathered in Canada seems to be playing a recurring role in the detention of Canadians abroad. The RCMP said Thursday they are aware of Mr. El-Maati's release, but will not comment further. Nor will the Mounties comment on the seven search warrants executed around Ottawa, which have been sealed. A lawyer representing Mr. Almalki has seen those warrants, but cannot comment on them. A CSIS spokeswoman said that the agency gathers intelligence lawfully, in accordance with its mandate, and has information-sharing arrangements with many countries, but cannot reveal how it may swap information with Syria. * * * Birmingham Post (UK): January 16, 2004 PRISONERS COULD BE HOME IN WEEKS By Jonathan Walker, Birmingham Post http://icbirmingham.icnetwork.co.uk/0100news/0100localnews/content_objectid= 13822767_method=full_siteid=50002_headline=-Prisoners-could-be-home-in-weeks- name_page.html British detainees at Guantanamo Bay could be home within weeks, the Home Secretary has stated. They were unlikely to be kept in captivity because Britain had failed to reach agreement with American authorities about holding a "fair trial" in the US, said David Blunkett. He insisted final decisions about the fate of nine Britons held at the naval base in Cuba, including four from the Midlands, had not yet been made. But his comments suggested the Government expected the men to be allowed home soon. Mr Blunkett also denied claims he had blocked the return of the detainees. Around 600 prisoners of various nationalities are being held by the US, who accuse them of links with the Taliban or al Qaida. They include Moazzam Begg, from Sparkbrook in Birmingham, and Shafiq Rasul, Asif Iqbal and Ruhal Ahmed from Tipton. The British Government has said British detainees will be tried in America, or returned home. But it insists a trial will take place only on conditions acceptable to Britain. The US originally planned trials by a military tribunal, with no right to appeal. Speaking to The Birmingham Post, Mr Blunkett said: "Ideally it would have been sensible to have been able to reach agreement with the US on a fair trial, so that what evidence they have collected in Afghanistan could have been presented. "It is not feasible, given that the Attorney General doesn't at this moment believe he has reached agreement that is satisfactory to Britain, in terms of a trial." The men may never appear before a court, he said. "It doesn't look at this moment as though the nature of the evidence collected and the way it was collected would be easily presentable in a British court. We are not talking about criminal accusations here, we are talking about people who were engaged with the Taliban and were involved in a military conflict. We couldn't tag them if they haven't actually been put in front of a district judge or a crown court judge and been accused of anything." Mr Blunkett was accused of blocking the men's return by Louise Christian, a lawyer representing three of them. But he said the claims were made for political reasons. * * * ITAR-TASS: January 16, 2004 US CONSIDERING EXTRADITION TO RUSSIA OF EIGHT MEN FROM GUANTANAMO http://www.itar-tass.com/eng/level2.html?NewsID=313477&PageNum=0 WASHINGTON, January 16 (Itar-Tass) - American authorities are considering the extradition to Russia of her citizens from the Guantanamo airbase, Cuba, according to Igor Tkachev of the Russian Prosecutor-General' s office. He said the future of the eight Russian taken prisoners in the course of the anti-terrorist operation in Afghanistan had been discussed during his meetings in the United States with members of the Pentagon criminal investigation group at the Fort Bellevoir military base located in a suburb of Washington. According to Tkachev, the United States is ready in principle to extradite the Russians and even transport them to Russia. "There is agreement in principle that our citizens must be made responsible in our territory even for the crimes they committed beyond the boundaries of Russia," said he. Tkachev was not clear about when the extradition would take place because, he said, the investigation into each person's case was not yet over. As regards the status of the detainees, the Americans regard them as "enemies" who pose a threat to the country's security. The representative of the Prosecutor-General's Office said the American side had handed over to the Russian officials nearly 100 pages of documents related to the involvement of the arrested men in illegally armed formations. The Russian law-enforcement agencies, which are conducting a parallel probe into the cases, will study the American documents concerning the men who are charged in Russia with participation in a criminal community, illegal crossing of the border and having served as mercenaries. These crimes are punishable in Russia by prison terms of two to ten years. The Russian investigators have established that before appearing in Afghanistan, two or three men from the aforementioned group spent time in Chechnya. On the whole, Mr. Tkachev expressed satisfaction with the way the Russian and American investigators were interacting. "The Americans are showing interest in cooperation," said he. * * * January 15, 2004 US STILL HOLDS CHILD DETAINEES AT GUANTANAMO By Sue Pleming http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=4137313 WASHINGTON (Reuters) - The United States has held three child detainees at its military base in Guantanamo Bay for more than a year and the Pentagon said on Thursday it has no plans to move or free them, despite international pressure. A defense official said doctors estimated the boys were 13-15 years old and were deemed "enemy combatants" along with about 660 prisoners being held at the base in Cuba after the U.S. invasion in Afghanistan in response to the Sept. 11, 2001, attacks on America. "There has been lots of media speculation they were going to be moved out but that's all it has been, just speculation," the official told Reuters when asked if there were plans to move or release the teen-age detainees any time soon. A spokeswoman for the military task force holding the prisoners told Reuters last August that prison camp commander, Brig-Gen. Geoffrey Miller, would recommend the three boys be sent home, and this was confirmed by Miller a month later. The detentions without trial at Guantanamo Bay have drawn worldwide criticism from governments and human rights groups who have urged the United States to file charges against the prisoners and to send the children home to their families. The military official said the three were being kept separately from older prisoners in a refurbished house. They shared a large bedroom and there was also a dayroom, a kitchen and a facility where the teens received daily lessons. "They are being tutored in their own language and are learning other skills. They are being taught to read and mathematics." The official said there was a large yard around the house where the teens played soccer, volleyball and other games. NO FAMILY CONTACT He did not know whether family members had been informed of the teen-agers whereabouts but said they had been given access to Red Cross officials who visited the base. "None of the detainees has had direct contact with their families except for one," he said, referring to an Australian man David Hicks who was allowed to speak to his father on the telephone. In the past, senior Pentagon officials described the children as "enemy combatants" who despite their age were "very, very dangerous people" who "have stated they have killed and will kill again." Asked whether there had been any incidents involving the children, the official said he did not believe so. "The conditions they are being held in are humane. There have been very many media down there who have seen the conditions they live in," he said, adding that the media had not seen the children themselves. "We are not going to hold them up for public scrutiny or ridicule," he said. Jo Becker, advocacy director for children's rights at Human Rights Watch, voiced deep concern the children were still being held and called for their release. "They have been in detention since the early part of last year without any direct contact with their families or knowledge about what is going to happen to them," said Becker. She appealed to the military to free the detainees so they could be re- integrated with their communities and said there was particular worry about them being separated and detained during the vulnerable teen years. She said other teen-agers, aged between 16-18, were also being held at the U.S. base along with the older prisoners. The military official declined to provide any details on detainees aged between 16-18. * * * Reuters: January 15, 2004 GUANTANAMO CHAPLAIN'S HEARING DELAYED AGAIN http://www.reuters.com/newsArticle.jhtml?type=domesticNews&storyID=4136698 MIAMI (Reuters) - The U.S. military has further delayed a hearing for a Muslim Army chaplain accused of mishandling classified material at the Guantanamo Bay prison camp to allow more time to review evidence, the military said on Thursday. The hearing for Capt. James Yee had been scheduled to resume on Jan. 19 at the Fort Benning military base in Georgia but was postponed until Feb. 4, said a spokesman for the U.S. military's Southern Command, Lt. Col. Bill Costello. The hearing to determine whether Yee will face court-martial began on Dec. 8 but a military-appointed judge adjourned it a day later after the military failed to give defense lawyers access to key evidence in the case. Yee, a New Jersey-born Chinese-American who converted to Islam in the 1990s, was arrested in September on suspicion of being part of a spy ring at Guantanamo, where he had contact with some of the 660 people being held by the United States as suspected al Qaeda and Taliban fighters. Yee, 35, was eventually charged with improperly taking and transporting classified material, adultery, storing pornography on a government computer and lying to military personnel, but was never charged with the more serious offense of espionage. Yee has denied all the charges. Costello said the military had finished its review of thousands of pages of documents to be used as evidence, and was preparing to send them to Yee's defense attorneys, but wanted to give them more time to go through the material. "What we didn't want to do was drop it on the defense table and say, 'Here it is, let's go,"' Costello said. Both sides had asked for the delay, he and Yee's civilian attorney, Eugene Fidell, said. "We haven't received anything yet. If they have finished their review, that's good. This hiatus will give us a chance to prepare," Fidell said. If convicted on all the charges, Yee could be sentenced to up to 13 years in a military prison. He is one of four men charged with security violations in connection with their work at the Guantanamo prison camp. * * * January 15, 2004 LAWYERS CHALLENGE GUANTANAMO TRIAL RULES By Will Dunham http://www.reuters.co.uk/newsPackageArticle.jhtml?type=worldNews &storyID=439267§ion=news WASHINGTON (Reuters) - Foreign terrorism suspects prosecuted in U.S. military trials must have the right to appeal to civilian courts and not be forced to put their fate solely in the hands of legal machinery created by the Pentagon, military defence lawyers have told the Supreme Court. The five lawyers, who made the argument in a friend-of-the-court brief to the U.S. high court, are military officers assigned by the defence Department to defend prisoners held at the U.S. naval base at Guantanamo Bay, Cuba. "The government's argument in this case has no logical stopping point," the brief stated. "If there is no right to civilian review, the government is free to conduct sham trials and condemn to death those who do nothing more than pray to Allah." The military defence lawyers on Wednesday filed the brief in connection with suits, set to be heard by the Supreme Court, filed by relatives of Guantanamo prisoners who are asking that civilian courts be allowed to consider the legality of their detention. The brief challenges the constitutionality of the structure that the Pentagon created for military tribunals. The five lawyers argued that defendants must have the right to take appeals to U.S. civilian courts rather than being charged, prosecuted, convicted and sentenced, possibly to death, within the military tribunal apparatus. The process calls for defendants to be brought to trial on charges approved by the defence Department, judged by U.S. military officers, with any appeals of convictions or sentences going to a special panel named by defence Secretary Donald Rumsfeld, and then to Rumsfeld and ultimately Bush to decide. Bush "asserts the power to create a legal black hole" in which defendants brought up on charges may not challenge the jurisdiction, competency or even the constitutionality of the military tribunals, the five lawyers said. Bush in 2001 authorised military trials of non-U.S. citizens caught in what he calls the global war on terrorism. He has designated six prisoners being held without charge at Guantanamo as eligible for trial before panels of U.S. service members, officially known as military commissions. "This court (the Supreme Court) has never given the president the ability to proclaim himself the superior or sole expositor of the Constitution in matters of justice," the brief stated. The brief does not challenge the president's right to hold prisoners captured in the anti-terrorism campaign. The five lawyers were: Lt. Cmdr. Charles Swift, named to defend Yemeni prisoner Salim Ahmed Hamdan; Maj. Michael Mori, assigned to defend Australian David Hicks; Lt. Cmdr. Philip Sundel; Maj. Mark Bridges; and Lt. Col. Sharon Shaffer. The latter three have not yet been assigned a prisoner to defend. * * * Sarasota Times-Herald: January 15, 2004 GUANTANAMO DETAINEE SUES FEDERAL OFFICIALS http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20040114/APN/401141173 LOS ANGELES (AP) - A detainee at the U.S. Navy prison camp in Guantanamo Bay, Cuba, sued President Bush and other government officials Wednesday, seeking $1.1 billion in damages for what he said were violations of his constitutional rights. A panel of the 9th U.S. Circuit Court of Appeals ruled last month that courts can hear petitions from detainees. That case involved detainee Belaid Gherebi, the brother of Salim Gherebi, the detainee who filed the lawsuit Wednesday. Both brothers are represented by attorney Stephen Yagman, who wants the lawsuit certified as a class action on behalf of the 600 detainees at Guantanamo. He said the panel's ruling means the detainees are U.S. inhabitants with the right to sue for alleged violations of the Constitution or international treaties. The suit said the plaintiff was being held with no legal basis, and has been denied his freedom of speech, association, religion, and other constitutional rights. A Justice Department spokesman reached after business hours Wednesday referred a reporter to the Department of Defense, where Lt. Col. Rivers Johnson said the official who could comment would not be available until Thursday morning. * * * The Telegraph (UK): January 15, 2004 GUANTANAMO BRITONS 'WILL NOT BE TAGGED' By Philip Johnston, Home Affairs Editor http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/01/15/nguan15.xml British Muslims detained by the Americans in Guantanamo Bay would be free from any restrictions if they returned to the UK, David Blunkett, the Home Secretary, said yesterday. There have been suggestions that the nine detainees, held without trial at the Cuban naval base, could be repatriated provided they were "managed" by the British authorities on their return. But Mr Blunkett said they would not be electronically tagged or kept under surveillance. Since there is no offence with which they could be charged, because no evidence was gathered at the time of their capture, they would be free as soon as they landed in Britain. It is this prospect that could be holding up moves to return the detainees, with the Americans reluctant to let them go under such circumstances. Mr Blunkett, on a visit to a new mosque in Watford, Herts, said the Britons should either face a fair trial under American arrangements or return to "go about their business". He added: "I have never suggested tagging, I have never suggested satellite monitoring. I've never suggested that we can take action against them in this country without trial. Where there isn't evidence that would stand up in a British court, as opposed to a [US] military tribunal, then people can't be tried." Lord Goldsmith, the Attorney General, is continuing discussions with the Americans over the fate of the detainees. The Government has ruled out charging them with treason for allegedly fighting against British troops in Afghanistan. Mr Blunkett, who in the past has angered the Muslim community with outspoken comments, used his visit to the mosque to mend fences. He stressed the importance of the faith's links with the local neighbourhood and called the mosque a "valuable resource for the whole community". The "topping out" ceremony was interrupted when one man shouted that the Home Secretary had "blood on his hands" over the war in Iraq. * * * The Guardian (UK): January 15, 2004 PLEA FOR FORGOTTEN MEN AT US BASE By Tania Branigan and Vikram Dodd, The Guardian http://www.guardian.co.uk/uk_news/story/0,3604,1123399,00.html The lawyer of a Londoner held at Guantanamo Bay is asking the government to help him apply for citizenship from within the US naval base because the Foreign Office refuses to help non-Britons. Jamal Abdullah, 24, has lived in Britain for 10 years and is eligible for citizenship, but has not so far applied due to an oversight. This has left him without official representation as the government is helping only its nine nationals at the detention camp in Cuba. A successful application would force the government to take responsibility for him. However, Home Office staff do not have access to Camp Delta, while the Foreign Office insists that citizenship applications are Home Office responsibility. Mr Abdullah is one of three British residents held at the camp. Their supporters fear that they will be forgotten if the future of the nine Britons is resolved. Last week, an American diplomat said seven of the Britons could be returned without a British promise they would be prosecuted if the UK could "manage" them appropriately. The other two, Moazzam Begg and Feroz Abbasi, have been listed for possible trial by military commissions. Yesterday, David Blunkett, the home secretary, said they "would be allowed to go about their business fairly" if they were returned and there was insufficient evidence to prosecute them. At the weekend, Tony Blair said he believed that agreement would soon be reached on the Britons. But the government has not discussed the three non-Britons in its talks with the US. The Foreign Office says it cannot offer assistance and says they should look to their countries of birth. Bisher al-Rawi is Iraqi, Jamil al-Banna is a political refugee from Jordan, and Mr Abdullah is Ugandan. "The British residents are going to be completely forgotten about," said Mr Abdullah's lawyer, Louise Christian. Her client moved here when his father died and has indefinite leave to stay. His mother, who is British, asked Uganda for help, but has had no response. "Trying to get Uganda to take an interest is pretty difficult; he's been here since he was 14," said Ms Christian. "I am asking the FO whether they will allow him to apply for citizenship from Guantanamo Bay. If you are out of the country for more than two years, it can be counted against you. He probably has been now - but not of his own free will." Mr Banna, a Jordanian national, was granted refugee status in 2000. Mr Rawi fled to the UK 19 years ago with his father, who had been tortured by Saddam Hussein's regime. His family are British citizens and Mr Rawi had indefinite leave to remain, but retained Iraqi nationality in case he could one day return. "After 19 years, I think the British government has an utter moral obligation to Bisher, and their failure to recognise that is chilling and quite spineless," said Edward Davey, MP for Mr Rawi's constituency of Kingston and Surbiton * * * The Australian: January 15, 2004 CIVIL PLEA FOR HICKS By Roy Eccleston DAVID Hicks's Pentagon lawyer has told the US Supreme Court the military commissions likely to try the Australian and other "enemy combatants" are unfair and unconstitutional. In an embarrassment for the Bush administration, Major Michael Mori and four other military lawyers acting for Guantanamo Bay prisoners this week submitted a "friends of the court" brief that calls for Mr Hicks and others to have the option of an appeal to US civilian courts. The Bush administration has fought zealously to deny the judiciary any say in the fate of alleged enemy combatants who supported the Taliban or al-Qaeda. But the brief warns a defendant would be "thrown into a legal black hole (where they) may not contest the jurisdiction, competency or even the constitutionality of the military tribunals". "The struggle against terrorism is potentially never-ending," it says. "The Constitution cannot countenance an open-ended presidential power, with no civilian review whatsoever, to try anyone the president deems subject to a military tribunal, whose rules and judges have been selected by the prosecuting authority itself." The argument of the widely experienced Pentagon defence lawyers will be considered along with a broader challenge to the detention of Mr Hicks and others likely to be heard in late March or early April. Major Mori told The Australian he had been granted permission by the military to make the submission to the US's highest court. The court agreed last year to hear an action by civilian lawyers for Mr Hicks and 15 other Guantanamo Bay inmates to challenge the Bush administration's claims that civilian courts had no jurisdiction over the prisoners, and that the prisoners had no right to "due process" under law. Major Mori said the military lawyers were not supporting either side in the case, but presenting a middle course. "We're saying to the Supreme Court, 'don't forget to look at this side as well'," he said. Essentially, the lawyers want Mr Hicks and other prisoners to have similar rights to US troops who face a court martial. While the military conduct the case, the defendant has the right to dispute the verdict in the Supreme Court. "If you look at any judicial process, you have a role for the executive branch bringing the charges, but you need checks and balances, an independent judiciary, an independent jury and an independent process of review," he said. What was missing from the tribunals was "a system of review that is independent to meet the fundamentals of fairness," Major Mori said. Mr Hicks has received visits from his lawyers but has not yet been told of any charges to be laid. He is one of six prisoners who have been nominated for possible trial, and a decision could come soon. The Australian * * * The Guardian (UK): January 14, 2004 TRIAL OR NOTHING FOR GUANTANAMO BRITONS - BLUNKETT Press Association http://politics.guardian.co.uk/homeaffairs/story/0,11026,1123114,00.html David Blunkett today ruled out the possibility of British Guantanamo Bay detainees being electronically tagged or kept under surveillance if they return to the UK. On a visit to a new mosque in Watford, the home secretary said the nine Britons held at the US naval base in Cuba would either face a fair trial under US arrangements or return to British soil. He raised the prospect of them being allowed to "go about their business" if a trial did not proceed in the UK. "I have never suggested tagging; I have never suggested satellite monitoring," he said. "I've never suggested that we can take action against them in this country without trial. "Where there isn't evidence that would stand up in a British court, as opposed to a military tribunal (in the US), then people can't be tried. "If we could return them to Britain, and where there isn't a trial, people would be allowed to go about their business fairly." The attorney general Lord Goldsmith QC was still in negotiations with the Bush administration, the home secretary said. It would be entirely down to the attorney general to decide whether the arrangements on offer in the US were acceptable, Mr Blunkett added, or whether they should be brought home. Mr Blunkett was visiting the North Watford mosque and laying a foundation stone at a new community centre alongside the building. He stressed the importance of the Muslim faith's links with the local neighbourhood, describing the mosque as a "valuable resource for the whole community, as well as a place of worship for local Muslims". Mr Blunkett met local dignitaries and was given a tour of the mosque after a 20- minute private meeting with faith leaders. Imam Mohammad Saleem greeted Mr Blunkett and recited the first chapter of the Koran. The ceremony at the community centre, in which Mr Blunkett was helped to lay three red bricks, was briefly interrupted when one man shouted that the home secretary had "blood on his hands" following the war in Iraq. * * * The Facts (Brazoria County, TX): January 14, 2004 COUNTY PROSECUTOR CALLED TO DUTY By Michael Wright, The Facts http://thefacts.com/story.lasso?wcd=11736 ANGLETON -- The walls in Jon Hall's office in the Brazoria County Courthouse are bare, the usual decorations packed in a cardboard box. Hall, an assistant district attorney and lieutenant colonel in the Army Reserve, has been called to active duty in Washington, D.C., to assist with the military trials of suspected Taliban members captured during military action in Afghanistan. Hall's last day in Brazoria County was Tuesday. He will spend at least the next six months as an adviser to Maj. Gen. John Altenburg Jr., the appointing authority for the military commissions. Altenburg will approve all charges brought against the defendants and handle the automatic appeals for the military tribunals in America's war on terror. Hall's title is deputy legal advisor to the appointing authority. His duty will be "to provide legal advice to the appointing authority on the propriety of charges," he said. He won't be prosecuting or defending the prisoners, most of whom are being held at the Guantanamo Bay naval base in Cuba. "I'm excited to be able to serve when there are a lot of people who are in harm's way," Hall said. "This is something I can do in the global war on terrorism." The military commissions will try those suspected of belonging to al-Qaeda, engaging in terrorism against the United States or harboring al-Qaeda members or terrorists, according to the Department of Defense Web site. The commissions may not try U.S. citizens, and the accused are presumed innocent, have access to military lawyers and can't be forced to testify against themselves. Acquittals may not be reversed, though all convictions are automatically appealed. The commissions will have between three and seven members and a two-thirds vote is needed for conviction. Only a unanimous vote from a seven-member panel can impose a death sentence. President Bush must approve all convictions and sentences. The United States used similar commissions in World War II to try German saboteurs captured in the United States. Despite that, Hall said, much of what the commissions will do is without precedent and he's eager to see how things turn out. Brazoria County District Attorney Jeri Yenne said she's proud of Hall for going and she has no qualms about losing a felony prosecutor. "We wouldn't want them to not be able to support our country," Yenne said. "All I want is I want him to return." Hall does plan to return. Hall's wife Robin is a "full-time reservist" and he said she understands why he has to go. Hall said the toughest part has been explaining his impending absence to his three daughters, ages 6, 8 and 10. "The oldest one understands more than the others," Hall said. "They understand that it's the army and that it's something that's important to do and that it won't last forever." Hall prosecuted Widner Michael Weems, who was convicted of murder last year and assisted on the prosecution of Sadie Proffitt, who was convicted in 2002 of setting the Woodhollow Apartment fire in which four people were killed. [ Michael Wright is a reporter for The Facts. Contact him at (979) 237-0151. ] * * * Fairfiled-Suisun City Daily Republic: January 14, 2004 TRAVIS AIRMAN FACES 17 COUNTS By Staff, wire reports http://www.dailyrepublic.com/articles/2004/01/14/news/news2.txt TRAVIS AFB -- A Travis Air Force Base senior airman accused of espionage postponed entering a plea Tuesday as attorneys argued over whether his civilian lawyer should have access to classified documents connected to his court- martial. During his pre-trial hearing, Syrian-born Ahmad Al Halabi was arraigned on 17 counts of espionage, lying and disobeying orders for allegedly trying to deliver more than 180 written and e-mail messages from detainees at Guantanamo Bay, Cuba, where he was serving as a translator at the camp for suspected terrorists, to Syria. The government says he stored the messages on his laptop and planned to carry them overseas. He is also accused of trying to deliver secret documents about prison camp operations and names and other personal information about detainees to Syria with "reason to believe it would be used to the injury of the United States or to the advantage of Syria," according to charging documents. He also allegedly failed to report his contacts with the Syrian Embassy to his superiors and allegedly lied to Air Force investigators. Al Halabi, 24, was a supply clerk with the 60th Logistics Readiness Squadron at Travis Air Force Base before going to Cuba. Classified documents in the case, normally restricted to authorized military personnel, have been kept secret from Al Halabi's civilian attorney Donald Rehkopf Jr. That lack of access has frustrated Al Halabi's defense team because "we can't discuss the nuts and bolts of the case (with Rehkopf,)" said Maj. Jamie Key, one of Halabi's defense counsels. Rehkopf, who didn't attend the hearing but was interviewed by telephone, accused the Air Force of stalling. He said military officials have had the information they need to allow him to see classified evidence since mid-November. "If the government had any real interest in Al Halabi's right to counsel they could've and should've processed my access within two weeks," he said. Military Judge Col. Barbara Brand set a deadline of Feb. 25 for the government to turn over classified documents to Rehkopf and allow the court-martial of Al Halabi to go forward. In the meantime, his plea will be deferred, as will his choice of whether he wants to be tried just before Brand, before a panel of officers, or a panel of officers and enlisted members. The next hearing in the case is scheduled for March 24, at which time Al Halabi's attorneys have said they expect him to plead [NOT?] guilty. The court-martial itself is tentatively planned for mid-April. Wearing his dress uniform and handcuffed, Al Halabi was escorted into the judiciary building at Travis AFB between two security police after coming from Vandenberg AFB where he is confined. More serious charges such as aiding the enemy, which would have carried a death penalty, were dropped against Al Halabi late last year. If convicted, the current charges could still carry a life sentence, however. Al Halabi was heading to Syria to marry his fiancee when he was arrested. Al Halabi has been holding up well since then, Key said. He is under government order not to speak Arabic to make it easier for the Air Force to monitor him. It also made it impossible to speak to his fiancee because she doesn't speak English. He was the first of four Guantanamo Bay workers arrested as part of an investigation into possible security breaches at the prison. Hussam Ayloush, executive director of the Los Angeles-based Council on American Islamic Relations, said Al Halabi is likely the victim of a "major misunderstanding" or he's fallen prey to the "anti-Muslim fear that's taking over most of the country." While Ayloush hasn't talked to Al Halabi directly, he's in contact with his family, some of whom live in Southern California, he said. "I'm frustrated by what our government is doing in Guantanamo Bay," he said. "Some of these people are good Muslims." Many charges were dropped against a former Muslim chaplain at the prison, Army Capt. James Yee, who has pleaded innocent to charges of mishandling classified information, disobeying orders, committing adultery and storing pornography on his military computer. A civilian interpreter, Ahmad F. Mehalba, pleaded innocent to charges of lying to federal agents when he denied computer discs he was carrying had classified information from Guantanamo. On Nov. 29, Army Reserve Col. Jack Farr, an intelligence officer on six-month assignment to Guantanamo Bay, was charged with transporting secret documents without proper containers and with lying to investigators. [ Ian Thompson contributed to this report. Reach Ian Thompson at 427-6976 or at ithompson@dailyrepublic.net ] * * * Toronto Star: January 14, 2004 ARAR LAWYER DISMISSES DEPORTATION AGREEMENT By Graham Fraser, National Affairs Writer http://www.thestar.com/NASApp/cs/ContentServer ?pagename=thestar/Layout/Article_Type1&c=Article&cid=1074035410792 &call_pageid=968332188854&col=968350060724 OTTAWA -- Canada's agreement with the United States announced yesterday would not have changed Maher Arar's experience of being deported to Syria, his lawyer told the Star. "When you analyze what happened, you see that everything the agreement says will happen, happened," Toronto lawyer Lorene Waldman said in an interview. "They got consular access, and access-to-information material has shown that the Prime Minister's Office was aware of the deportation order before it happened. There's nothing new here." Arar, 33, is the Syrian-born Canadian who was detained in the United States in September, 2002, and deported to Syria where he was held for a year. His case has embarrassed the Canadian government with what Prime Minister Paul Martin has called Arar's "compelling" account of being deported to Jordan and Syria and being detained and tortured. Yesterday, Foreign Affairs Minister Bill Graham announced he and U.S. Secretary of State Colin Powell had exchanged letters on a formal understanding that both countries agreed to notify each other and provide consular access before deportation to a third country. Graham called the agreement "unprecedented" and "a very significant concession," and Martin called it "precedent-breaking." Asked about the statement from Arar's lawyer, Martin categorically rejected his arguments. "It would have absolutely changed the circumstances under which he was sent to Syria -- absolutely," Martin said in Monterrey, Mexico. In a statement, Arar said he was left with the same questions he had before yesterday's developments. "Why did this happen to me?" he asked. "Why did Canadian agencies tell the United States I was a suspect? How do I clear my name? These are the questions that all Canadians need answers to if we are really going to feel safe." Steven Watt of the Centre for Constitutional Rights in New York said yesterday's agreement is not at all unprecedented, since the United States ratified the Vienna convention on consular relations. "I don't think it adds much to the obligations already in place," he said. Waldman pointed out U.S. Ambassador Paul Cellucci has stressed Washington reserves the right to deport non-American citizens to other countries as it sees fit, and President George Bush reiterated the United States reserves the right to defend itself. "This agreement doesn't alter that," Waldman said. "This is more of a public relations effort. All of the issues that arose are not resolved." He stressed the agreement does not address the fact that the Americans deported Arar on the basis of information they received from Canadian security agencies. Waldman said he was particularly disturbed by a published report yesterday citing unnamed Canadian officials as saying there might be exceptional circumstances where Canada countenanced a deportation of this sort. He pointed out they were referring to the practice known as "rendition" -- deporting someone to a country where torture is routinely practised in order to obtain information. "Under international law, rendition is illegal under all circumstances," he said. "To suggest this is not a major concern is unbelievable." He said this raises the question of whether there were Canadian officials who knew of, agreed to, or turned a blind eye to the deportation of Arar to Syria. "That's why we need an inquiry," he said. Alex Neve, Secretary-General for Amnesty International, said he was disappointed with the agreement. He said the real problem was not addressed: that the U.S. deports people to countries where they face great human rights abuses. [ With files from Susan Delacourt. ] * * * Reuters: January 13, 2004 US MILITARY ORDERED TO HURRY GUANTANAMO TRIAL By Adam Tanner http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=4122110 TRAVIS AIR FORCE BASE, Calif. (Reuters) - Amid defense complaints that no case had been made against their client, a judge on Tuesday gave prosecutors a Feb. 25 deadline to present key evidence against a Syrian-American airman accused of spying while working as a translator in Guantanamo, Cuba. Senior Airman Ahmad al Halabi, who faces life in prison if convicted, has been charged with espionage related to his work at the base where the United States maintains a prison camp for suspected al Qaeda and Taliban members. Halabi, who has denied the charges, was arrested in Florida in July and accused of carrying jail maps, letters and other sensitive documents from Guantanamo. His lawyers complained after the arraignment hearing at Travis Air Force base north of San Francisco that the prosecutor has hidden a weak case by classifying the evidence. "They don't want anybody to see anything at all about this case," Donald Rehkopf, Halabi's civilian attorney, told Reuters in an interview. "I have seen no evidence." He said prosecutors "went crazy with their rubber stamp" and classified a picture of his fiance as secret." Halabi's military attorney, James Key, said he was not able to "discuss the nuts and bolts of the case" with Rehkopf because of the secrecy. "It's very frustrating," he said. The mild-mannered judge, Col. Barbara Brand, expressed concern about the slow pace of the proceedings. "This young man has been in pretrial confinement since 25 July," she said, setting a Feb. 25 deadline for prosecutors to sort out evidence that could be presented. "Some parts are under investigation," a military official told Reuters. "Some parts are classified," said John Kellogg, deputy staff judge advocate of the Air Mobility Command. Kellogg declined to discuss the charges in detail. Rehkopf, a former airman who specializes in military justice, said the case is an example of justice gone mad. "The big picture shows paranoia to the extreme and prosecutorial overkill to the extreme," he said in an telephone interview after not attending the morning court martial. "There is absolutely no credible evidence that al Halabi is involved in any nefarious scheme, you know, to spy or do anything adverse to the United States." ARABIC BARRED Halabi wore a dark blue airman dress uniform. His hair was closely shaved, and he stood at rigid attention when Brand entered the courtroom. Halabi, 24, exchanged only a few accented words with the judge during the half-hour proceeding. In December the U.S. military dropped three of the charges, including one that he brought baklava pastries to prisoners. He still faces 17 counts, including espionage, failure to obey an order, retaining documents without authority, making false statements, and executing a fraudulent credit application. Attorney Key said Halabi moved to the United States from Syria when he was 16 or 17 to join his father, who worked as a cook in Dearborn, Michigan. He joined the military in 2000, and gained U.S. citizenship the following year. Most recently Halabi had been earning $1,665.30 a month for his military work. "This has been very weighty on him, very difficult on him," Key said. "He actually has been under order by the government not so speak Arabic, which has made it extremely difficult for him to talk to his fiance back in Syria, who does not speak English." His attorneys said the charges against Halabi that he was in contact with the Syrian Embassy stems from correspondence to return to Syria to wed his fiance there. The trial is scheduled to begin on April 27. Halabi is one of four men, including another Arabic translator and a Muslim chaplain, charged in connection with their work at Guantanamo. A separate hearing for Muslim Army chaplain Capt. James Yee -- whom Halabi knew in Guantanamo -- is due to resume on Jan. 19. Yee is accused of mishandling classified material and engaging in other misconduct at Guantanamo. * * * The Australian: January 14, 2004 US ACCUSED OF IRAQ WAR CRIMES From correspondents in Baghdad http://www.theaustralian.news.com.au/common/story_page/ 0,5744,8387495^1702,00.html THE US military is committing war crimes by demolishing homes of suspected insurgents and arresting the relatives of Iraqi fugitives, a top human rights group said today. The military denied the charges by Human Rights Watch, saying it only destroyed homes that were being used to store weapons or as fighting positions and all Iraqis detained were suspected of taking part in attacks on coalition forces. "Assertions that the coalition is intentionally attacking homes as a matter of collective punishment are false," said Colonel William Darley, a military spokesman. "People are not arrested because they are related to other suspects - people are detained because they themselves are suspects." The New York-based human rights group said American soldiers demolished at least four Iraqi homes for no apparent military reason other than to punish the families of anti-US guerrilla suspects. "Troops are entitled to suppress armed attacks, but they can only destroy a civilian structure when it is being used in an attack," Kenneth Roth, the group's executive director, said in a prepared statement. "These demolitions did not meet the test of military necessity." The group also accused US military of kidnapping in two cases where American soldiers arrested civilians who happened to be related to guerrilla suspects. In one case, the Army detained the wife and daughter of Izzat Ibrahim al-Douri, a former top lieutenant of Saddam Hussein and now the most wanted man in Iraq. The two women remain in US custody more than six weeks after they were arrested without charge. Darley refused to discuss al-Douri's wife and daughter, saying the were "special circumstances" surrounding their case. "Detaining persons for the purpose of compelling actions from the opposing side amounts to hostage-taking, which is a grave breach of the Geneva Conventions - in other words, a war crime," Human Rights Watch said in a statement. Demolishing homes and destroying civilian property as a reprisal or deterrent amounts to collective punishment, which is also prohibited by the Geneva Conventions. "International law allows occupying forces to detain individuals who have attacked them or who pose security threats," Roth said. "US forces should immediately release anyone being held solely because they are related to a wanted person." In a letter to US Defence Secretary Donald Rumsfeld, the group called for a halt to such tactics and asked Rumsfeld to ensure US forces abide by the 1949 Geneva Conventions, holding soldiers accountable for ordering, condoning or carrying out serious violations of the laws of war. * * * The Guardian (UK): January 13, 2004 DON'T HOLD OUT HOPE FOR THE BRITS OF GUANTANAMO BAY By Marcel Berlins, The Guardian http://politics.guardian.co.uk/foreignaffairs/story/0,11538,1122141,00.html · What should have been a public-relations triumph over the fate of the British detainees in Guantanamo Bay has turned into a mess of uncertainty. The government, through the attorney-general, Lord Goldsmith, has been working hard behind the scenes to reach an agreement to bring home at least some of the nine detainees. It would have liked to have made a dramatic announcement of success. Instead, in yet another failure of UK-US communication, Pierre-Richard Prosper, the roving US ambassador for war crimes, gave a briefing to legal journalists in which he outlined - prematurely - the possibility of seven medium-risk detainees being sent back, not necessarily to face detention or trial, but to be somehow "managed", or kept under surveillance. The trouble was that the British government didn't know that Prosper was going to go public, and the result was an embarrassing spate of such words as "premature", "speculation" and others denoting that our government didn't quite know what was going on. One foreign officer minister reportedly even tried to blame the journalists, claiming that they had misinterpreted Prosper's remarks. They hadn't. We still don't know how close we are to a repatriation agreement. But the events of the past few days have done nothing to clarify the state of play. In particular, not one of the many experts who have publicly opined on the subject has any idea how our government can get round the fact that, under our law, there seems to be no legal method of "managing" returned detainees in the way hinted at by Prosper. Has the government discovered a clever, imaginative - and legal - way of meeting American demands? Or should we brace ourselves for more disappointments? · So now it seems that the new supreme court of the United Kingdom (SCUK - remind you of another brand?) that the lord chancellor is setting up doesn't have a home to go to. Charlie Falconer admitted the other day that the supreme court justices (currently the law lords) may have to squat in the House of Lords until a suitable new building is found. It may take years. The Treasury is, understandably, resisting spending taxpayers' money on a grand palace of law, so the judges may have to make do with a conversion. But where? The villains of this saga are the Inland Revenue, who are refusing to move out of their splendid offices in Somerset House, where the supreme court would love to go. But why should the taxpersons leave the best office accommodation in London just because the judges want to be near the royal courts of justice and the Temple, not to mention the winter skating rink at Somerset House? There can't be many buildings in the right part of London fit for dignified conversion; the search goes on. * * * Chicago Sun-Times: January 13, 2004 TRYING TO BALANCE SECURITY, FREEDOM AND THOSE DETAINEES By Mark Brown, Sun-Times Columnist http://www.suntimes.com/output/brown/cst-nws-brown13.html The funny thing about freedom is how quickly people will chuck it out the window when forced to choose between that and their personal security. You could see this in Baghdad in the days after U.S. soldiers overthrew Saddam Hussein's government, leaving portions of the country in temporary anarchy with looting and lawlessness. If this was the Americans' idea of freedom, many Baghdad residents told reporters, then we could keep it. Instead of grateful masses reveling in their newfound liberties, our troops encountered a populace wanting to know when the streets would be safe again for their children and speaking almost wistfully of conditions under Saddam's dictatorial rule. As the months have passed, these attitudes may have softened somewhat, but "security" still seems to be identified by Iraqis in interviews as their foremost need, and our ultimate success or failure in establishing a new government there will depend a great deal on whether we can provide that security. This has been difficult for many Americans to understand, believing as we do that freedom is more important than life itself, as in, give me liberty or give me death. But are we really so much different from the Iraqis? TROUBLING SIMILARITIES That thought bubbled to the surface again Monday when the U.S. Supreme Court refused to take up the case of whether the Bush administration acted properly in rounding up hundreds of foreigners following the Sept. 11 terrorist attacks while refusing to disclose who it was holding or why. The secret arrests involving mostly Arabs or Muslims, none of whom was ever charged as a terrorist, seemed to trample on some of our basic notions of American values, which hold that criminal suspects are accorded due process rights and the actions of our government, particularly the legal system, must stand the test of public inspection. But with the threat of terrorism upon the land, Americans have shown a willingness to compromise some of these values. After all, the detainees were illegal immigrants, and most needed to be deported anyway. It's not as if the government was trampling on the rights of real Americans. That seems to be the way the thinking goes, and nobody wants to hear any scare talk about setting precedents or about who might get picked up secretly the next time. The High Court didn't comment, so you don't really know what the justices were thinking -- other than this wasn't the case on which they were going to second- guess the president. That could still occur in two other major terror-related cases that the court has decided to hear this year challenging some of the other ways in which the Bush administration under Attorney General John Ashcroft's leadership has sacrificed our legal traditions for national security. Just last week, the court agreed to consider whether the government can indefinitely jail American citizens as "enemy combatants" without giving them access to lawyers or the court system. This involves the case of Yaser Hamdi, a Louisiana-born Taliban fighter taken into custody by U.S. forces in Afghanistan, but it will probably be expanded to include the case of Jose Padilla, arrested in Chicago for allegedly conspiring to detonate a "dirty bomb" in the United States. The justices also plan to rule on an appeal by foreign terrorism suspects being held in Guantanamo Bay who say we shouldn't be able to hold them indefinitely without charging them or giving them access to a lawyer. In these matters, too, Americans have shown little interest in bucking the president, accepting the explanation that the government must have such powers if it is to be able to defend the nation against dangerous enemies in a new kind of war. HAVING THEIR DAY IN COURT Like the Iraqis, Americans have been willing to sacrifice liberty in a quest for security. Maybe the Supreme Court will find this lack of faith in our legal institutions as troubling as I do. Our courts are tougher and more reliable than people seem to imagine. When the government has a good case, it wins pretty much every time. And then some. Defendants can be put away just as indefinitely through the courts as they can through these secret methods. Federal judges have wide latitude to protect the government's investigations and evidence when larger issues are at stake. This isn't a suggestion to set any bad guys free, just to deal with them where possible through the systems we have created to ensure all of our freedoms. We have a history of temporarily eroding our Constitutional protections during wartime, but it shouldn't surprise any of us for the War on Terror to extend the rest of our lifetimes and beyond. I'd feel better about the eventual outcome if we'd just stick with the values that got us this far. * * * Fairfiled-Suisun City Daily Republic: January 13, 2004 TRAVIS AIRMAN FACES ARRAIGNMENT TODAY By Ian Thompson http://www.dailyrepublic.com/articles/2004/01/13/news/news2.txt TRAVIS AFB -- The Travis Air Force Base airman accused of espionage is expected to be arraigned today in the initial session of his court-martial at Travis AFB, according to Travis Public Affairs. The military judge, Col. Barbara Brand, is expected to hear a plea from Syrian- born Senior Airman Ahmad I. Al Halabi and any pre-trial motions. Al Halabi, 24, was stationed at Travis AFB with the 60th Logistics Readiness Squadron before he was sent to Guantanamo Bay where he served as a translator at the U.S. prison camp for terrorism suspects. He was arrested on July 23, 2003 and is accused of allegedly sending e-mails with information about the prisoners to outside parties and planning to give 180 written messages from the prisoners to a person who would then to go Syria. The military version of a preliminary hearing was originally set for December but was put off after Halabi's attorneys accused government investigators of violating Al Halabi's attorney-client privilege. Al Halabi's attorneys contended the investigators took the senior airman's legal files for "safe keeping," searched a defense counsel's office and barged into a meeting between Al Halabi and his counsel without a warrant. [ Reach Ian Thompson at 427-6976 or at ithompson@dailyrepublic.net ] * * * January 13, 2004 GRAHAM CONFIRMS ARAR DEAL By Darren Yourk and Drew Fagan Foreign Affairs Minister Bill Graham confirmed Tuesday that Canada and the United States have agreed on new rules aimed at ensuring that the Maher Arar scandal is never repeated. "Following the discussion between Prime Minister Martin and President [George W.] Bush on December 15, 2003, and building on the subsequent work of officials, I am pleased to confirm that earlier today my counterpart, U.S. Secretary of State Colin Powell, and I exchanged letters outlining a formal understanding concerning the removal of Canadian and U.S. nationals to third countries," Mr. Graham said in a statement. "...Canada is now the only country that has such an understanding with the U.S. Thus, this understanding represents an unprecedented step." Under the new agreement, the White House has pledged "formal notification and expeditious consultation" with Canadian authorities immediately whenever a Canadian national is detained in the United States on security grounds. Mr. Arar, who holds dual Canadian and Syrian citizenship, was detained as a terrorist suspect at New York's John F. Kennedy Airport in September, 2002. Although never charged, he was deported to Syria a month later without the knowledge of Canadian officials. He spent 10 months in solitary confinement in the Middle Eastern country and said he was tortured before being released to return to his family in Ottawa three months ago. "Secretary Powell and I -- along with officials from both countries -- will monitor closely the understanding to ensure its efficacy in protecting the rights of nationals from both countries," Mr. Graham said. * * * Seattle Post-Intelligencer: January 13, 2004 BUSH HAS LOST HIS WAY IN GUANTANAMO The Independent - Editorial Commentary http://seattlepi.nwsource.com/opinion/156287_guantanamo13.html The U.S. position on the 600 people detained in stateless limbo at Guantanamo Bay does at least have the advantage of clarity. They have been certified as "bad people" by President Bush, in answer to a question from a British journalist on live television. This status does not have to be validated by judicial process but because the United States thinks of itself as founded on the rule of law, the detainees may be tried by military courts in due course. If that happens, they will have the right of appeal to the commander in chief of the U.S. armed forces, who has happily saved them the trouble by identifying them all as "enemy combatants." This status does not exist under international law, or that of the United States, which explains the Pentagon's insistence that the detainees are not subject to the jurisdiction of any state, including that of the United States. Such niceties as innocence until proof of guilt, the right to know the charges against one, the right to a prompt trial and the rules on the gathering of evidence are, therefore, irrelevant. Not only that, but the status is effectively permanent. It lasts for the duration of the war on terror. The difficulty of returning those detainees who are nationals of friendly countries such as Britain is that we have allowed ourselves to be befuddled by such defeatist notions as those of universal human rights. We might ask such awkward questions as: What is the evidence that these people are terrorists? The reply, so far, is simply that they were picked up in the combat zone in Afghanistan, even though some were initially arrested in far-flung places before being flown to Bagram airport. If there is any better evidence, the United States does not want it tested in a British court. That would imply that all the Guantanamo detainees had the right to have the evidence against them tested in a civilian court. And that is simply not how the Bush administration sees the issue. These are bad people. They even seem to have been divided into three categories of badness: high, medium and low. The Britons, who fall into the first two categories, can be returned to their home but they would have to be "managed," says Pierre- Richard Prosper, the U.S. ambassador-at-large for war crimes. He was talking about management, not justice: "We are not asking for a guaranteed conviction." Before welcoming this sound grasp of the principles of human rights, we should note that the likely form of management for "low-risk" suspects is that they should be kept under surveillance. It would presumably not be possible to try these detainees, because the evidence against them is too thin. But, if that is the deal, Prime Minister Tony Blair should accept it. It would be better for the prisoners, who must be presumed innocent, to be released than to continue to languish in detention. Once released, they could not be prevented from challenging the terms of the deal under the Human Rights Act or the European Convention on Human Rights. Surveillance must amount to a form of supervision order, an infringement of liberty that cannot be imposed under British law without establishing the guilt of the accused. The longer the sorry story of Guantanamo goes on being made up as it goes along, the more apparent it becomes that the Bush administration has lost its way in the struggle to contain anti-American terrorism. The Independent is published in Great Britain. * * * Toronto Globe and Mail: January 13, 2004 CANADA, U.S. STRIKE ARAR DEAL By Drew Fagan http://www.globeandmail.com/servlet/story/RTGAM.20040113.wsummit0113/BNStory/ International/ Monterrey, Mexico -- Prime Minister Paul Martin is expected to announce today that Canada and the United States have agreed on new rules aimed to ensure that the Maher Arar scandal is never repeated. Government sources said last night that the White House has formally pledged to inform Canadian authorities immediately whenever a Canadian national is detained in the United States on security grounds. The pact, which one official said last night it was "99 per cent done," is sure to be described by the Martin government as a critical step forward in bilateral relations and proof that the Prime Minister's effort to improve ties is already paying dividends. "From our perspective, it is almost shocking that they agreed to this," said a Canadian official, who noted that steps to restrict U.S. national security efforts in the post-Sept. 11 environment have generally been rejected by Washington. "All you will get is assurance that they will consult with you. ..... But it's hard to imagine that [the Arar case] would happen again." The agreement is expected to be made public after Mr. Martin and U.S. President George W. Bush hold their first meeting today; a 45-minute discussion over breakfast at the Summit of the Americas. Mr. Arar, who holds dual Canadian-Syrian citizenship, was detained as a suspected terrorist at New York's JFK Airport in September of 2002. Although never charged, he was deported to Syria a month later without the knowledge of Canadian officials. He spent 10 months in solitary confinement in the Middle Eastern country and said he was tortured before being released to return his family in Ottawa three months ago. The pact, sources say, doesn't include a promise by the United States never to deport to third countries Canadians suspected of being security risks. But the crux of the Arar matter, Canadian officials have emphasized, is that Ottawa had no chance to object formally to his deportation and demand that he be returned to Canada instead. Ottawa now has a formal declaration that the U.S. government will keep Canada in the loop. The pact includes a specific point of contact in Canada: likely the senior bureaucrat in Ottawa responsible for consular affairs. It is extremely unlikely that the United States would deport a Canadian national abroad against Canada's wishes, officials said, whether those were expressed publicly or privately. There may be exceptional circumstances when Canada countenanced a deportation of this sort, but it almost inevitably would require the approval of both governments before this extreme step was carried out again, they added. Since taking office on Dec. 12, Mr. Martin has said it is a government priority to negotiate a protocol of this sort with Washington. Some Canadian officials have been blunter still; suggesting that closer Canada-U.S. co-ordination toward defending the continent against the threat of terrorism depends on such a pact. As recently as late last week, Canadian and U.S. officials remained some distance apart. The negotiations were made more difficult because both sides weren't of one mind. The U.S. government in particular has been split between those in the intelligence community and the Department of Homeland Security who fear that written rules with Canada would unduly handcuff them, and those who felt that a diplomatic compromise with Ottawa is in the United States's clear interest. Government officials say a pact came together during the past three days, as this morning's meeting between Mr. Bush and Mr. Martin drew near. Mr. Martin told reporters yesterday that Canada-U.S. relations have been on the upswing since he took office and that he hopes to develop a good rapport with Mr. Bush. Relationships based on mutual understanding, he said, inevitably pay greater dividends whether in politics or in everyday life. "The tone has changed," he said. But Mr. Martin also took pains to emphasize that his objective is to have a good working relationship with Mr. Bush, rather than one based primarily on friendship. "Canadians expect their Prime Minister to defend their interests," he said, adding that it is also important to have strong links among cabinet ministers, pointing to Foreign Minister Bill Graham, who speaks regularly with U.S. Secretary of State Colin Powell. Mr. Martin said that he hopes to make progress today on the key files that rile relations: the mad-cow crisis; the softwood lumber dispute; the fight over access to reconstruction contracts in Iraq; and the Arar matter, which he has described in simple terms as "respecting the Canadian passport." But Mr. Martin also suggested that at least some of those issues will require prolonged efforts to resolve, since they involve the U.S. Congress as well as the White House. "On some of these files, we're approaching them in more constructive ways." The bilateral meeting has received little notice in the U.S. media, which has concentrated on other discussions Mr. Bush will have during his 24-hour visit to Monterrey for the fourth summit of leaders of the Western Hemisphere. Mr. Bush met with Mexican President Vicente Fox yesterday afternoon. * * * January 13, 2004 BUSH BESIEGED BY WAR COLLEGE By Suzanne Goldenberg, The Guardian http://www.guardian.co.uk/usa/story/0,12271,1121957,00.html WASHINGTON - The Bush administration's doctrinaire view of the war on terror, which lumped together regimes like Saddam Hussein's and al-Qaida as a single undifferentiated threat, led the US on a dangerous "detour" into an unnecessary war, according to an unusually strong critique from the US army war college. "The global war on terrorism as presently defined and conducted is strategically unfocused, promises much more than it can deliver, and threatens to dissipate US military and other resources in an endless and hopeless search for absolute security," says the study by Jeffrey Record, a visiting scholar at the Strategic Studies Institute. The report, endorsed by other scholars at the institute, appeared yesterday at a delicate moment for the White House, which was fending off damaging comments from a former cabinet member on its decision to go to war. Mr Record recommends a total overhaul of the national security strategy and says it must redirect its campaign against global terror from "unrealistic to realistic war aims". Although he says that Washington may be able to defeat al-Qaida, he concludes that its war on terror has designated so many fronts and enemies that it is fundamentally unwinnable. Meanwhile the war in Iraq has led it into an open-ended conflict that has drained resources from its efforts to secure American soil against another attack by al-Qaida. The critique of the Bush administration's doctrine of pre-emption action and regime change appeared as the human toll of the engagement in Iraq approaches a new milestone: the number of American war dead came one closer to 500 yesterday when the 495th soldier died in a roadside bomb attack in Baghdad. Two others were injured. Seven armed Iraqis were shot dead by US forces yeaterday while they were trying to siphon off petrol from a pipeline near the town of Samara. Mr Record traces the failings of the war on terrorism to its very conception, arguing that a world view which saw purveyors of weapons of mass destruction, leaders of rogue states, and terrorist organisations as part of the same threat has eroded its ability to defend the American heartland. Entering into an open-ended guerrilla conflict in Iraq has drained its military and financial resources and cost the country dear in international diplomacy, the report says, while emphatically failing to advance the war on terror. "Operation Iraqi Freedom may have expanded the terrorist threat by establishing a large new American target set in an Arab heartland," it says. On its second front, the White House is swatting off comments by the former treasury secretary Paul O'Neill. In a memoir of his two years at the treasury, Mr O'Neill accuses President Bush of being a semi-detached president while rightwing members of his administration spun their plots to go to war on Iraq. "From the very beginning, there was a conviction that Saddam Hussein was a bad person and that he needed to go," Mr O'Neill told the CBS programme 60 Minutes. But if White House officials succeed in writing off Mr O'Neill's expose as a pathetic attempt at revenge by a gaffe-prone official who was eventually sacked, Dr Record will not be so easy to dismiss. He is the author of six books, he served as a military adviser during the Vietnam war and to Republican senators, and his report was endorsed in the Washington Post by the director of the war college. Although the essay carries a standard disclaimer that its views do not represent those of the Pentagon, the study was endorsed by several other academics at the institute. "This piece of work, like many others, certainly should be considered in the debate being taken place on national security policy," the institute's director, retired army colonel Douglas Lovelace, said. He said it had "a fairly strong foundation of support among the academic faculty". * * * San Jose Mercury News: January 12, 2004 COURT-MARTIAL FOR SYRIAN-BORN TRANSLATOR BEGINS IN CALIFORNIA By Kim Curtis, Associated Press SAN FRANCISCO - Court-martial proceedings against the Arabic translator accused of spying at the Guantanamo Bay, Cuba prison camp will begin Tuesday, military officials said. U.S. Air Force officials last month dropped some of the most serious charges, but Senior Airman Ahmad I. al-Halabi still faces 17 of the 30 charges filed following his arrest in July after nine months at the prison. They include espionage counts, disobeying an order, making false official statements, mishandling classified documents and lying on a credit application. The Air Force hasn't said why it dropped the single count that carries the death penalty - a charge of "aiding the enemy." Also dropped were counts dealing with e-mailing information about Guantanamo detainees and transmitting information to unauthorized recipients. His civilian lawyer, Donald G. Rehkopf Jr., said last month that "the gut of the case was gone." He could not be reached for comment Monday. Al-Halabi's initial hearing, originally scheduled for Dec. 15, was rescheduled for Tuesday at Travis Air Force Base. He is expected to appear in person and hear the charges outlined against him, but is not expected to enter a plea. Al-Halabi, a naturalized American who was born in Syria, was arrested July 23 at Jacksonville Naval Air Station in Florida at the start of a leave from Guantanamo, when he was heading to Syria to marry his fiancee. The airman was the first of four workers at Guantanamo Bay to be arrested as part of an investigation into possible security breaches at the prison for some 660 suspected al-Qaida or Taliban members. Most charges were also dropped against a former Muslim chaplain at the prison, Army Capt. James Yee, who has pleaded innocent to charges of mishandling classified information, disobeying orders, committing adultery and storing pornography on his military computer. A civilian interpreter, Ahmad F. Mehalba, pleaded innocent to charges of lying to federal agents by denying that computer discs he was carrying had classified information from Guantanamo. On Nov. 29, Col. Jack Farr, an Army Reserve intelligence officer on six-month assignment to Guantanamo Bay, was charged with transporting secret documents without proper containers and with lying to investigators. * * * January 12, 2004 CAMP DELTA BRITON CLAIMS RACIAL ABUSE By Tania Branigan, The Guardian http://www.guardian.co.uk/guantanamo/story/0,13743,1121046,00.html Guards at Guantanamo Bay are racially abusing inmates by calling them "ragheads" and "camel-riders", the family of a British detainee claims. Shafiq Rasul, who has been held at the base since spring 2002, alleged the abuse in a letter to his family. According to his elder brother Habib, he wrote: "Everything's OK in Guantanamo. It's just that sometimes some of the guards are OK with us, and some are saying things to us, calling us names like camel-rider and raghead." Mr Rasul said: "It's blatantly racist and Islamophobic. Shafiq's from Tipton - he's never seen a camel in his life." Amnesty International said that such abuse, if true, would be "totally unacceptable and alarming". "It's important that the American authorities do a thorough investigation of these alleged comments." A spokeswoman for the base said she could not verify the comments, but would raise the matter with the camp's commanders. She added that soldiers received sensitivity training to help them work with Muslim detainees. "If it happened it would be unfortunate and we would need to do some reinforcement. Racial comments are not tolerated," she said. A Foreign Office spokesman said it did not comment on specific allegations, but that its officials discussed a range of issues with the US authorities. The allegation of abuse comes amid renewed speculation about the future of the nine Britons at the US naval base in Cuba. A possible breakthrough in the negotiations to have the detainees returned to Britain was signalled recently when a senior American diplomat said the US would release them so long as the UK could "manage" them, possibly via long-term surveillance. The apparent deal prompted lawyers to blame the home secretary for blocking a final resolution. "David Blunkett is fearful that the public mood may change or that he will be criticised if they can't be prosecuted [in the UK]," said Louise Christian, a lawyer who represents several detainees. The claim of racial abuse is likely to reignite debate about the treatment of the nine. Mail from the base is censored. In an earlier message seen by the Guardian, from another detainee, a lengthy blacked-out section ended: "... but other than that, everything is fine". The father of Rhuhel Ahmed, also from Tipton, said his son had complained of food rations being cut in his last letter. "He said was getting less food than he had when he was first there," Riasoth Ahmed said. "After each meal he would go out for exercise, but he stopped because there was not enough to eat," Mr Ahmed said. The base spokeswoman said that prisoners received three hot meals a day or were able to help themselves to cooked food. The Amnesty International spokesman added that whatever the conditions at the base, long-term confinement without charge or access to lawyers was "absolutely unacceptable". "What the International Red Cross focused on [in a recent report] was not the conditions per se, but the fact that indefinite detention was what was driving significant numbers of the detainees mad. It's the utter limbo that's the final straw," said Gareth Peirce, the solicitor acting for Shafiq Rasul and other prisoners. Only consular officials and the IRC are allowed to visit the 660 detainees. Tony Blair yesterday suggested that the future of the Britons would be decided shortly, telling BBC1's Breakfast with Frost: "I think it will be resolved one way or another in the next few weeks but I can't say exactly at this juncture how it will be resolved. "It is extremely important that we balance up the absolute proper consideration that they get a fair and decent trial with the need to protect people in this country." The Britons' lawyers believe that the Bush administration wants to get rid of the men because two of them are plaintiffs in a case to be heard in the US supreme court, which will consider whether American courts should have jurisdiction over the base. "They don't want a defeat in the supreme court in election year," said Ms Peirce. But US human rights experts have warned that previous indications of releases had not translated into action. * * * ABC (Aus) News: January 12, 2004 FRENCH LAWYERS PREPARE US COURT CASE OVER GUANTANAMO (AFP) - Lawyers for two of the six French nationals detained at the US camp at Guantanamo Bay, Cuba, say they were considering contesting the legality of their detention in the US Supreme Court. "It is not yet finalised but it should be within 15 days, three weeks," one of the lawyers, William Bourdon told AFP. About 660 people from 42 countries, most of them captured in Afghanistan, are being held at a Guantanamo Bay prison camp opened exactly two years ago. It was set up as part of the US-led campaign against terrorism in the wake of the September 11 attacks in 2001. About a dozen prisoners including Kuwaitis, Australians and Britons have already taken their case to the US Supreme Court. The court announced on November 10 that it agreed to examine the question of legality of the foreigners' detention at the US military base. The French lawyers plan to go to London later this month to discuss joint efforts with British members of parliament. Both the foreign ministry and Mr Bourdon confirmed plans to send a French mission to Guantanamo in order to obtain "precise information" about the fate of the six French, even if the trip has been "a bit delayed", the lawyer said. Two French delegations made up of diplomats, lawyers, detainees' family members and intelligence service officials already visited the base in January and March 2002. * * * Los Angeles Times: January 12, 2004 JUSTICES TO WEIGH PRESIDENTIAL POWERS * Five cases on issues from detaining terror suspects to White House secrecy will test Bush's reach. By David G. Savage, Times Staff Writer http://www.latimes.com/news/nationworld/ nation/la-na-scotus12jan12,1,7832435.story WASHINGTON - The Supreme Court has set the stage for a series of rulings on the reach of presidential power, decisions that could arrive just as voters focus on whether to endorse President Bush and his strong style of executive leadership. Since November, the justices have voted to take up five cases that test the president's power to act alone and without interference from Congress or the courts. They involve imprisoning foreign fighters at overseas bases, holding American citizens without charges in military brigs, preserving the secrecy of White House meetings, enforcing free-trade treaties despite environmental concerns, and abducting foreigners charged with U.S. crimes. The case taken up Friday may be the broadest of all. Two years ago, the White House said the president had the power to designate American citizens "unlawful enemy combatants" and hold them in secret military custody without filing charges or allowing them to plead their innocence. Bush's lawyers said the "time-honored laws and customs of war" gave the commander in chief the power to hold captured soldiers. But not until recently had a president contended that his military power extended to arresting Americans on American soil. In December, a federal appeals court in New York ruled the president overstepped his authority in the case of Jose Padilla, a Bronx-born Muslim who was taken into custody at Chicago's O'Hare International Airport and imprisoned in a military brig in South Carolina. The judges said the administration must charge him with a crime or release him. The justices announced Friday they will take up the issue and rule on whether the president may bypass the courts and hold U.S. citizens in military custody. "The Supreme Court appears poised to issue the most important set of decisions about the scope of presidential power since World War II," said Deborah Pearlstein, director of the law and national security program for the Lawyers Committee on Human Rights. She said the high court's move "sends a clear message that the president's power to detain U.S. citizens is subject to certain limits." Veteran lawyers who have argued before the Supreme Court compared the lineup of pending cases to the era when President Nixon was in the White House. "This administration has massively asserted presidential power unlike any since Nixon," said Alan B. Morrison, a lawyer for Public Citizen, a liberal group that has opposed Bush in several pending cases. "The thread running through all these cases is that [administration officials] don't believe the part of separation of powers that has checks and balances in it. They say they have a right to do it because it is a war, and they don't have to be bound by all these constraints in the law." There is "an amazing convergence of a lot of these cases all at once," said Richard A. Samp, an attorney for the conservative Washington Legal Foundation. "I think it's because there is a basic disagreement on what American history shows, and what the Founding Fathers had in mind, in this area of the law." At their core, the disputes center on the role the Constitution gives the president in times of war and national emergency. The Bush administration's lawyers assert that since the Constitution made the president the commander in chief of the armed forces, he has the unilateral power to act. Moreover, since terrorists brought their attacks to the United States in September 2001, the president's war powers extend to the home front, they say. This view was on display in Padilla's case. He was arrested in Chicago after a flight from Pakistan and was suspected of having been involved in a plot to detonate a radioactive "dirty bomb" in the United States. Since June 2002, he has not been allowed to speak to a lawyer or to his family. No charges have been filed against him. When Padilla's New York lawyer sought a court hearing for him, the Bush administration took a stiff stand. The lawyer may not meet with her client, and the judges have no authority to hear his pleas, the administration said. "The capture and detention of enemy combatants during wartime falls within the president's core constitutional powers as commander in chief," Bush's lawyers told the U.S. court of appeals in New York. "There is no basis to second-guess the president's conclusion that Padilla is an enemy combatant." They cited as a precedent a World War II case involving Nazi saboteurs. Eight German soldiers, one of whom had been born in the United States, were secretly landed on Atlantic beaches. But two of them turned themselves in to the FBI, and the others were soon arrested. President Franklin D. Roosevelt ordered them tried before a military court in Washington. They were found guilty and sentenced to death, although Roosevelt spared two of them. The Supreme Court met during the summer and affirmed their convictions, saying the "president's wartime detention decisions are to be accorded great deference from the courts." That phrase was repeated in the administration's brief in the Padilla case. But the U.S. court of appeals in New York said Congress and the courts have an equal role to play in terrorism cases within the United States. Its judges looked to a much different precedent: President Truman's seizure of the steel mills during the Korean War. Fearing the effect of a strike, Truman ordered the military to take control of the mills. In 1953, however, the Supreme Court reversed his order and said the president had overstepped his bounds. In a key opinion, Justice Robert H. Jackson said that while the president has great authority when U.S. forces are fighting abroad, that authority does not extend to the home front. In Padilla's case, the appeals court in New York quoted Jackson's opinion to reject Bush's claim of an "inherent constitutional power" to hold U.S. citizens who are arrested on American soil. "We agree with Padilla that the Constitution lodges these powers with Congress, not the president," the court said in a 2-1 ruling in Padilla vs. Rumsfeld. While Congress could authorize the indefinite detention of terrorism suspects, the court noted that a 1971 law prohibited such actions by the chief executive. "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress," the law says. Separately, lawyers for Yaser Esam Hamdi, a second man held as an enemy combatant, had urged the court to review his case. A Saudi who was born in Louisiana, Hamdi was fighting for the Taliban when he was captured by U.S. troops. Rather than hold him as a prisoner of war, the administration sent him to the military brig in South Carolina and called him an unlawful enemy combatant. The Supreme Court agreed Friday to review his case and decide on the president's authority to order military detention of U.S. citizens. A case involving the Guantanamo Bay, Cuba, detainees, to be heard in the spring, tests whether the president can order hundreds of foreigners to be held without charges or a hearing. Lawyers for the nearly 600 men do not say the detention is illegal. Instead, they say the men deserve a hearing to show they are not guilty. Bush's lawyers say no such hearing is needed, and none may be ordered. "The courts have no jurisdiction to evaluate or second-guess the conduct of the president and the military," wrote Solicitor Gen. Theodore B. Olson. In the White House secrecy case, the high court will decide whether a judge can require Vice President Dick Cheney to turn over documents detailing who met with the administration's energy task force early in 2001. Two groups, one liberal and one conservative, sued Cheney, contending corporate lobbyists met with the Bush advisors in violation of an open-government law known as the Federal Advisory Committee Act. Bush's lawyers say the Constitution shields the White House from responding to such court orders. Disclosure would "interfere with the president's exercise of core executive constitutional functions," they said. In a case involving Mexican trucks, the court will decide whether the president can sidestep environmental laws to enforce the North American Free Trade Agreement. When environmentalists sued, the U.S. 9th Circuit Court of Appeals ruled that the government must first study the potential for pollution before it allows tens of thousands of older trucks to move goods across the border. Bush's lawyers said this decision "endangers the president's ability to act quickly and decisively in areas such as foreign affairs and national defense." And the outcome of a Mexican abduction case, which began during the war on drugs in the 1980s, is crucial to the war on terrorism today, Bush's lawyers have said. In June, the 9th Circuit Court of Appeals ruled that a Mexican doctor who was seized in Guadalajara can sue the federal agents who ordered his abduction. In his appeal, Olson said that if this rule became law, U.S. agents who locate Osama bin Laden would be barred from seizing him. "The use of trans-border arrests -- and judgments regarding the necessity of such measures -- are for the executive branch to make," not the courts, Olson said in U.S. vs. Alvarez- Machain. All but the Padilla case are expected to be decided by the Supreme Court by late June. Administration lawyers say they are confident of winning most of the cases, especially those where they lost before the 9th Circuit Court. However, some of Bush's critics believe the administration may have overplayed the theme of executive authority. "This president has taken an aggressive and extreme view of his power to act unilaterally without congressional or judicial review," said Steven R. Shapiro, national legal director for the American Civil Liberties Union. "They have imposed maximum secrecy wherever possible, and they have asserted their actions are unreviewable by the courts. I think they will have a hard time selling that view to the Supreme Court." If so, it would not be the first time a president clashed with the courts and lost. In the early 1970s, President Nixon lost a series of such disputes, and not just the case of the Watergate tapes. In that 1974 ruling, the court unanimously rejected Nixon's claim of "executive privilege" and ordered him to turn over the Oval Office tapes to the special prosecutor. Earlier, the court rejected Nixon's claim that he had the authority to order wiretapping without a judge's approval. He had claimed that the president's need "to protect national security" gave him that power. Similarly, the court rejected his claim of national security as a basis for halting the publication of the Pentagon Papers in 1971. Even in the area of budget and spending, the court curbed the president's unilateral authority. Nixon said the president had the power to "impound" money that had been appropriated by Congress, but the justices said unanimously that the executive was obliged to spend the money that Congress had ordered to be spent. * * * Media Monitors Network: January 12, 2004 THE GUANTANAMO "BLACK HOLE": THE LAW OF WAR AND THE SOVEREIGN EXCEPTION By Scott Michaelsen & Scott Cutler Shershow http://usa.mediamonitors.net/content/view/full/3849/ -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- "The crucial clause of the Third Geneva Convention that the US might have violated is Article 5: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protections of the present Convention until such time as their status has been determined by a competent tribunal." -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- Since January 2002, over 700 persons from 42 different countries have been detained without charge or right to counsel by the United States at Guantanamo Bay in Cuba. While many detainees were captured by the US on battlefields in Afghanistan in late 2001, an unknown number of others were delivered there by other means, for example, by being sold to the US by Afghan warlords. According to Amnesty International, at least six Guantanamo prisoners were arrested in Bosnia-Herzegovina in January 2002. One of the cases to be taken up by the Supreme Court involves an Australian man, Mamdouh Habib, who claims to have traveled to Pakistan in October 2001 to look for employment, and found himself arrested by Pakistani authorities. He was transferred first to Egypt, then into US military hands in Afghanistan, and finally flown to Guantanamo in May 2002. The "unlawful combatants" being held at Guantanamo thus include persons arrested far from any active battlefield. In December 2003, the US military began suggesting that approximately 100 of the remaining 660 Guantanamo detainees would be released to authorities in various countries. It is unclear what these new releases might mean. Are they a panicked response to the Supreme Court's acceptance on November 10 of several cases in which Guantanamo detainees are seeking issuance of writs of habeas corpus, or simply a sign of favoritism to "friendly" nations? In either case, the US is signaling that the releases are premised on promises from home countries not to simply let the detainees go. Nor is there much word on the fate of the remaining Guantanamo prisoners. EXCEPTIONS DEFINE THE RULE Some critics claim that US government actions with regard to the Guantanamo detainees fall entirely outside the existing legal frameworks, in a sort of legal "black hole." True, some Bush administration officials have occasionally (though informally) justified Guantanamo detentions with reference to the unprecedented nature of the post-September 11 "war on terrorism." In all formal contexts, however, the US government has carefully positioned its actions in terms of existing international law. For example, in March 2002, the Organization of American States' Inter-American Commission on Human Rights issued a call for the US to take "urgent measures" to determine whether the detainees were prisoners of war. Rather than simply ignoring the OAS ruling (as it had done with past rulings), the US gave the legalistic reply that "Under Article 4 of the Geneva Convention,... Taliban detainees are not entitled to prisoner of war status.... The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan.... Al-Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention." According to the US, all Taliban and al-Qaeda members rounded up worldwide are, by default, "unlawful combatants" rather than prisoners of war. Other critics, by contrast, charge that the US is in simple violation of international law, in particular the Third Geneva Convention, which was adopted in 1949. The problem with this viewpoint is that international law itself is a product of what Noam Chomsky calls the "state system" and was created to solidify a dominant position for powerful state actors in matters of war. All law, either implicitly or explicitly, carries with it recourse to exceptional situations; and the exceptions to international humanitarian law are persons who do not easily fit into traditional strong-state categories. As Michael Walzer showed in his oft-cited Just and Unjust Wars (1977), these include guerrilla fighters in struggles for liberation, their civilian supporters and, as a final grab-bag category, all "terrorists." Exceptions to the rule have in fact defined the rule of the laws of war, as can be demonstrated through close examination of the Geneva Conventions and the first formal codification of the law of war, the so-called Lieber Code produced during the American Civil War. Recourse to international law will never be sufficient to restrain states from actions such as those taken under the name Guantanamo. WHOSE DOUBT COUNTS? The crucial clause of the Third Geneva Convention that the US might have violated is Article 5: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protections of the present Convention until such time as their status has been determined by a competent tribunal." But whose doubt counts here? The US position, expressed in documents submitted to the OAS and by Pierre-Richard Prosper, the US ambassador-at-large for war crimes issues, is that "doubt" refers primarily or even overwhelmingly to the "detaining power." The US, Prosper continues, has no such doubts. Amnesty International, along with the International Commission on Jurists and the Crimes of War Project, has argued, by contrast, that any competent government or civil group might raise a point of doubt. Amnesty suggests that one look to the International Committee of the Red Cross (ICRC), "the most authoritative body on the Geneva Conventions," for clarification of this crucial distinction. Yet Frits Kalshoven's Constraints on the Waging of War (1987), the primary ICRC document on these matters, suggests that the question of who is charged with raising doubt under Article 5 is "not always readily answered," and his examples exclusively concern detaining powers (the US and Israel) questioning their own classifications. Beyond this, according to the ICRC, even under the most "liberal" construction of the Third Convention, there remain "quite a few obstacles in the way of recognition of resistance or guerrilla fighters as prisoners of war." The prominent critical theorist Judith Butler's analysis of these matters, published as "Guantanamo Limbo" by The Nation in April 2002, addresses similar ambiguities, yet is unable to resolve them. On the one hand, Butler asserts that the US is in "flagrant violation" of the Geneva Conventions. On the other hand, she suggests that the Geneva Conventions "are of only limited help here," since they are "pervasively biased toward the nation-state," and regard terrorists as always "outside the protocols" and even "outside the law" entirely. Thus, according to Butler, the US has flagrantly violated international law, but the violations cannot be proven using the actual documents of international law. Butler's text vacillates between two poles of thought, arguing, in turn, that the Guantanamo Bay detainees are inside the law or outside the law; that the US is an international scofflaw or not. This tactic avoids consideration of both sides of the problem simultaneously, something which some other contemporary theorists, such as Giorgio Agamben, have tried to do by interrogating the nature of sovereignty itself. As Agamben suggests in Homo Sacer (1998), sovereignty is precisely the way in which "something is included solely through its exclusion": "the juridico-political order has the structure of an inclusion of what is simultaneously pushed outside." Butler fails to recognize that the Guantanamo prisoners are both outside and inside the normative rule of law. She makes two recommendations: to read the Geneva Conventions more openly, and to produce a new international document which would clearly grant the Guantanamo prisoners prisoner of war status. Such practical prescriptions, however, ignore what she elsewhere acknowledges: that all US actions in this case are grounded in the assumption that, as Speaker of the House Dennis Hastert puts it, "there are exceptions to the universal, and we are dealing with the exception here." Butler seems to think such exceptionality is no more than a right-wing ploy to circumvent international agreements; in its stead, she seeks the universalization of certain rights without exception. But as legal theorist Carl Schmitt argued long ago, sovereignty is precisely the power to determine the exception to the rule. The Guantanamo prisoners, as exceptions to the humanitarian laws of war, are in fact foundational for those laws. THE LIEBER CODE The humanitarian laws of war were first codified by legal philosopher Francis Lieber at a time long before the Geneva Conventions, at the behest of President Abraham Lincoln. The "Lieber Code," which directly influenced both the Hague deliberations at the turn of the century, and the Geneva Conventions in the mid- twentieth century, was put into effect on April 24, 1863 by Lincoln's secretary of war, Edwin Stanton. As Paragraph 155 of the Code clearly indicates, there are only two classes of persons in warfare: "All enemies in a regular war are divided into two general classes -- that is to say, into combatants and non- combatants, or unarmed citizens of the hostile government." Intriguingly, before the Code's existence in 1862, the general-in-chief of the US Army, Major General Henry Halleck, had already corresponded with Lieber regarding the exceptional problem of "guerrilla war." Lieber's 22-page reply was published before the Code itself became public and went into effect. In other words, in the history of the codification of the laws of war, the exception to the normative rules came first, providing the strange ground for the norm itself. Lieber's letter on the guerrilla operates via a kind of double logic of the exception. Lieber is primarily concerned to distinguish between legal combatants entitled "to the full benefits of the laws of war" and "guerrillas" who are not. But as Lieber defines the term, the guerrilla is constituted by a variety of "kindred subjects," among them figures variously named the "freebooter," the "brigand," the "partisan" and so on. "Partisans," for example, are soldiers "detached from the main army" who resemble, and yet must be distinguished from, a "free corps" made up of "volunteers, generally raised by individuals authorized to do so by the government." Even though the members of this last sub-category are often "high-minded patriots," they are still to be rejected as unlawful combatants and treated "on the principle of retaliation." (This "retaliation," as Lieber makes clear in his formal code, refers to indiscriminate violence that can even include the killing of prisoners of war. "The law of war can no more wholly dispense with retaliation than can the law of nations," he insists.) By the same token, the category of lawful combatant cannot simply be limited to the regular uniformed soldiers of an organized army. Lieber also suggests, for example, that "the rising of the people to repel invasion entitles them to the full benefits of the law of war" and that a conquering power is "obliged to treat the captured citizens in arms as prisoners of war." At one and the same time, Lieber charts a variety of fine distinctions between otherwise similar practices, as he also draws a fundamental line beyond which all distinctions dissolve, and where all combatants, regardless of their specific motivations, are to be treated as "common robbers" and subject, if necessary, to indiscriminate violence. The law and practice of war thus remains inextricably linked to the limitless barbarism that it always seeks to transcend. This double logic is deeply interwoven into the history of sovereignty and even the development of American constitutional democracy. Consider Lieber's description of one sub-category of illegal combatant: "Freebooter is a term which was in common use in the English language at no very remote period; it is of rare use now, because the freebooter makes his appearance but rarely in modern times, thanks to the more regular and efficient governments and to the more advanced state of the law of war. From the freebooter at sea arose the privateer, for the privateer is a commissioned freebooter, or the freebooter taken into the service of the government by the letter of marque.... Wherever the freebooter is taken, at sea or on land, death is inflicted upon him now as in former times, for freebooters are nothing less than armed robbers of the most dangerous and criminal type." The privateer, a kind of state-sanctioned pirate, highlights the elusive but implacable distinction between legal and illegal combatant. The bonafide pirate -- the genuinely "private" privateer -- has typically been described with the same rhetoric of exceptionality today applied to the terrorist, as someone who, in the words of Sir William Blackstone, "is an offence against the universal law of society," and who "has reduced himself afresh to the savage state of nature." It is striking to note how Article I, section 8 of the Constitution, in two sequential clauses of unmistakable symmetry, gives to Congress the power "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations," and also, "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." The archaic term "letter of marque," as Lieber's text also indicates, refers to the practice of authorizing a naval privateer to attack the enemies of a state and thus (according to the Oxford English Dictionary) "to commit acts which would otherwise have constituted piracy." In effect, state sovereignty literally consists at once of the power to punish and to commit piracy. Terrorism also presents the sovereign state with an image of its own essential violence, which in turn calls forth the violent exceptionality of the state's response. Such a conclusion is no mere theoretical sophistry or legal technicality, as seen in the public discourse surrounding the "war on terrorism." Speaking on NPR, the famous law professor Alan Dershowitz defended the arrest of two female relatives of Izzat Ibrahim al-Duri, the former top adviser to Saddam Hussein accused of involvement in recent attacks on US forces in Iraq. "It's never permissible under international law or under American domestic law to hold an innocent person in order to put pressure on a relative or a guilty person," Dershowitz began by conceding, "but the United States is experimenting with what might generously be called creative approaches to the problem of terrorist prevention." Such "creative" approaches are justified, he goes on to suggest, "because international law wasn't written for terrorism." Dershowitz is quite wrong on this point as a matter of historical fact, as the above analysis of the Lieber Code shows. Yet his frank embrace of this particular transgression of international law is wholly in keeping with the underlying assumptions of that system. Perhaps even more strikingly, New York Times columnist David Brooks excused "the brutal measures our own troops will have to adopt" in fighting the war in Iraq. Because the US military is fighting people who "survive only by cruelty," he claimed, it will have to respond with what he frankly calls "atrocities." SOVEREIGNTY AGAINST ITSELF The act of sovereignty that captures the Guantanamo detainees only to push them beyond the reach and protection of the sovereign state is the very manifestation of the existing state system and its corollary values. Critics are confronted with a Hobson's choice between attempting to limit or suspend the exercise of sovereignty through increasing legal regulation or endorsing the exercise of sovereignty as a necessary corrective to injustice (as in the king's or executive's pardon). On this point, progressive legal theorists have been split. But the ultimate answer cannot lie solely in the enforcement of existing international law and the production of yet more international documents within the same framework, nor in the tenuous hope for occasional exceptions to that sovereign exceptionality that is always the essential form of sovereign power. International law alone will never avail, and not merely because its own logic always holds in reserve a right to the same indiscriminate violence that it condemns in the guerrilla, the pirate or the terrorist. Sovereignty is the principle and activity that founds the state, and therefore constitutes its innermost and outermost possibility. The sovereign black hole, loophole or zone of legal limbo is foundational for the existing juridico-political order. Even more broadly, within that order, the absolute end of sovereignty is unthinkable. Without sovereignty, no decisions; and without decisions, no justice. Since sovereignty itself is inevitable, yet particular instances of sovereign power must still be confronted and challenged, critics of the current situation must assume a double responsibility. On the one hand, the present resources of national and international law must indeed be pursued to their limits, to discover and interpret precedents for the urgent decisions of the day, and, more importantly, to set new precedents for decisions still to come. But on the other hand, since law itself cannot in principle ever be adequate to the full enormity of Guantanamo, sovereignty itself must be torqued in a strange reversal, and made to work against itself. In other words, the sovereignty of strong states with the power to decide global matters -- the sovereignty that is, after all, finally a collective force, a power "of the people, by the people and for the people" -- must be expended without reserve in the name, not of law, but of justice, to the point where the territory and its boundary trembles. Such is not a mechanism or method which might be codified, because it will involve sovereign (and hence unprecedented) acts and decisions; and because its goal is a justice understood as an infinite task of thinking our relation to the Other. But as Jacques Derrida suggests, "the fact that law is deconstructible is not bad news"; rather, one can "find in this the political chance to all historical progress." All this is perhaps difficult to imagine in a world so dominated by reasons of state and the fanaticism of borders and identities. But the urgency of the task can hardly be overstated. At any rate, one thing is clear: at Guantanamo Bay, as Walt Kelly once observed, "we have met the enemy and he is us." © 2004 Scott Michaelsen & Scott Cutler Shershow [ Scott Michaelsen is associate professor of English at Michigan State University. Scott Cutler Shershow is professor of English at the University of California, Davis. They are featured on Media Monitors Network (MMN) with the courtesy of the Middle East Research and Information Project (MERIP). ] * * * The Age (Melbourne): January 12, 2004 MPs TO CHALLENGE US OVER DETAINEES By Peter Fray, Europe Correspondent http://www.theage.com.au/articles/2004/01/11/1073769455757.html London - An influential group of about 140 British peers and MPs, including three former Labour ministers, is expected this week to join a legal challenge to the US Government's holding of foreign nationals, including two Australians, at the Guantanamo Bay army base. The unprecedented move is in support of 16 detainees, including Australians David Hicks and Mamdouh Habib, who claim they have the right to challenge their indefinite detention in an impartial civil court. The British group is expected to argue that under the US constitution, the Bush Administration is fully accountable for its actions to the US Supreme Court and that serious doubts exist over the legality of detaining many of the 660 prisoners. The cross-party group, acting as concerned citizens, consists of more than 54 peers, including four retired law lords, and 85 MPs, among them former foreign secretary Robin Cook and former ministers Clare Short and Chris Smith. A member of the group, Lord Donaldson, a former master of the rolls, told the BBC the situation at the army base was a "complete negation of the rule of law". "That you can have a place within the jurisdiction of the United States Government - it is a sovereign base there - where they can do what they like unfettered by law. It is a situation which could not arise in this country." The group is expected to petition the United States' highest court on Wednesday using an amicus curiae (friend of the court) brief, which allows interested parties to provide information to a particular case. It will single out the nine British prisoners for particular attention but, the Guardian newspaper reported, generally argue there are serious legal flaws over the detention of many Guantanamo detainees. The US Supreme Court will decide whether the detainees have the right to bring their cases to a US court, which in turn could examine the legality of their detention. The Bush Administration recently indicated it is prepared to release some of the nine British detainees who have been held at the base for up to two years without charge, trial or any mechanism for release. The US ambassador at large on war crimes, Pierre-Richard Prosper, has indicated some detainees could be repatriated if governments were able to adequately "manage" them after their return. British Prime Minister Tony Blair recently said he hoped to have positive news on the British detainees "shortly". The peers and MPs will argue that some of the British detainees were innocently caught up in the Afghan war and others were seized in foreign countries and are being held by the US on unsound legal grounds. The brief was prepared by New York firm Coudert Brothers, British firm Clifford Chance and three leading QCs. The case brought by the 16 detainees, who include the Australians, Britons and Kuwaitis, is due to be heard next month or in March, with judgement scheduled by the end of June. * * * Arizona Republic: January 11, 2004 GOVERNMENT MAY BE INFLATING ANTI-TERROR SUCCESS Review says some cases cited by U.S. are unrelated By Richard B. Schmitt, Los Angeles Times http://www.azcentral.com/news/articles/0111terrorist-list11.html PITTSBURGH - In the weeks after the Sept. 11 attacks, Ali Alubeidy was in the cross hairs of the Justice Department, singled out as a potential terrorist by no less than U.S. Attorney General John Ashcroft. In fact, he was guilty, of paying off a corrupt bureaucrat to obtain a commercial driver's license, including a permit to transport hazardous materials. His sentence: three years' probation. But the terrorism case against him never got off the ground. Prosecutors soon realized he was not a terrorist or involved in any terrorist organization and even said so publicly. To the Justice Department, however, Alubeidy and a group of 19 other Middle Eastern men caught up in the driver's license scam still count. They are included on a list of more than 280 cases the department cites as evidence that it is winning the war on terrorism. The growing list has been regularly highlighted by Ashcroft and other Justice Department officials in speeches and congressional testimony and even by President Bush. In an address to federal law enforcement officials on the eve of the anniversary of the Sept. 11 attacks, Bush referred to the "more than 260 suspected terrorists" the government has hauled to court. In October, testifying before the Senate Judiciary Committee, Christopher Wray, the Justice Department's criminal division chief, cited the growing number of charges resulting from terrorism investigations, which then stood at 284 defendants, as evidence that the department has "enjoyed key successes" in the anti-terrorism war. In a speech in November before a Justice Department liaison group for federal attorneys, Ashcroft cited terrorism-related criminal charges against 286 individuals, declaring, "We have been successful." But a Los Angeles Times review of a sampling of the cases behind the numbers, based in part on internal Justice documents obtained through the Freedom of Information Act, paints a more ambiguous picture. While the report card largely has been used as a public-relations tool, courts are starting to weigh in on the substantive aspects of how the department classifies and treats perceived terrorists. In December, a federal Appeals Court in New York rebuked Bush's decision in May 2002 to declare Brooklyn-born gang member Jose Padilla an "enemy combatant" and ordered that the government either charge him with a crime or release him. The department declined to provide a complete accounting of the terrorism- related prosecutions that Ashcroft and others cite. A department spokesman, Bryan Sierra, said officials do not maintain a single roster of cases and that the figure is compiled from many sources. The Times request for government records on the cases turned up a highly redacted accounting covering only about half the number Ashcroft trumpets. Some of those cases were on a list the department produced in the months after the Sept. 11 attacks in response to a lawsuit by civil liberties groups. Sierra said the department has taken pains to be clear that the cases mentioned derive from terrorism investigations and do not necessarily involve terrorists or people convicted of terrorism-related crimes. In his speeches and testimony, Ashcroft has homed in on the most notorious cases, including that of Richard Reid, who was convicted of trying to blow up a Paris-Miami flight with explosive-packed shoes in December 2001, and members of suspected terrorist cells from Buffalo, N.Y., to Portland, Ore., where defendants have been sentenced to lengthy prison terms for providing material support to al-Qaida. But the list obtained by the Times also includes two New Jersey men, operators of small grocery stores, who were convicted of accepting hundreds of boxes of stolen breakfast cereal in a crime 16 months before the terrorist hijackings. Also included is a Somali who was convicted in federal district court in Boston of operating an unlicensed money-transfer business but where the judge rebuked prosecutors for attempting to have him sentenced as a terrorist. The Bush administration subsequently removed the Somali man's name from a list of suspected terrorism financiers, although he and a partner remain on the Justice Department's list of terrorism-related prosecutions. Justice officials have said gauging the number of people who have been prosecuted as a result of terrorism-related investigations is a useful tool in analyzing the department's performance and informing the public, regardless of whether they turn out to be terrorists. But critics say the approach misleads the public about the kind of threat that is being extinguished. Their suspicions were further fueled by a Syracuse University study in December indicating that the median sentence for defendants in international terrorism cases won by the department is two weeks. "The masses of Americans, they probably think, if Bush says they are suspected terrorists, they probably are. They are not going to question that," said Lee Markovitz, a Pittsburgh attorney who represented Alubeidy, the man put on probation for paying a bribe to get a driver's license. "It's easy to be a suspected terrorist." For the defendants, the label can be hard to shake, however, and the consequences painful and sometimes devastating. * * * BBC: January 11, 2004 UK APPEAL BACKS TERROR SUSPECTS http://news.bbc.co.uk/2/hi/uk_news/politics/3386501.stm An appeal on behalf of terror suspects held in Guantanamo Bay by the US is to be made by about 135 peers and MPs. In an unusual move, the group is filing a legal brief with the Supreme Court. It supports a case being brought by 16 detainees, who argue that they should be entitled to challenge their detention before a civilian court. The Supreme Court is already due to consider whether the US government's policy on holding foreigners at the base is legal. The representation was being made as families of British detainees await confirmation of reports they could soon be home, two years after they were taken to the Cuban base. Former ministers The former master of the rolls, Lord Donaldson is among the Parliamentarians concerned at the detention of suspects at Camp Delta. He told BBC News: "I think it's a complete negation of the rule of law, that you can have a place within the jurisdiction of the United States government - it is a sovereign base there - where they can do what they like unfettered by the law. "It's a situation which could not arise in this country." The group, including four retired law lords and the former ministers Robin Cook, Clare Short and Chris Smith, will be filed on Wednesday, the Guardian said. It consists of about 85 MPs and 50 members of the House of Lords. They argue generally on behalf of the 600 or so detainees that under the US constitution the US government is fully accountable for its actions to the courts, the Guardian says. It also reports that the brief says some of the nine British detainees were innocently caught up in the Afghan conflict, and a majority were seized in foreign countries - in some cases far from the conflict. Hopes raised On Friday it was reported that the first of the nine British terrorist suspects held by the US at Guantanamo Bay could soon be released. Relatives' hopes were raised when a senior American official hinted that seven "medium risk" detainees could be repatriated if the UK "managed" them. Is was thought this means the US is ready to accept the men being monitored or put under surveillance by police. The solicitor for detainee Feroz Abassi - whom the Americans have indicated is considered a "high-risk" detainee - claims the apparent US climb down means Home Secretary David Blunkett is the only bar to their freedom. Louise Christian said: "The obstacle in the way of the British citizens being brought back to this country is not the US Government - I'm afraid the fear is that it's our own home secretary who is the obstacle." * * * Weekly Standard: January 12, 2004 THE CASE FOR A FEDERAL TERRORISM COURT by Thomas F. Powers http://www.weeklystandard.com/Content/Public/Articles/000/000/003/ 562vydnj.asp?pg=1 IN DECEMBER, the Bush administration suffered two legal setbacks in the war on terror. An opinion of the U.S. Court of Appeals for the Second Circuit challenged the government's claim that it has the right to detain terror suspect Jose Padilla (the "dirty bomber") without giving him access to the courts or charging him with a crime. Separately, the Ninth Circuit ruled that the nebulous legal status of some 600 Taliban and al Qaeda fighters captured in Afghanistan and detained at Guantanamo Bay, Cuba, must be open to judicial scrutiny. In both decisions the issue was whether, as the Ninth Circuit put it, "the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included . . . without permitting prisoners recourse of any kind to any judicial forum." The Supreme Court is already slated to consider this question in relation to Guantanamo (as presented in an earlier appeal from the D.C. Circuit), and it is widely expected to review the question as it pertains to U.S. citizens as well. Though the Padilla and Guantanamo cases are different, both exhibit the uncomfortable mix of military and law enforcement considerations characteristic of the war on terror. Neither is adequately met by our existing criminal law or the law of war. The cases are also linked by the fact that Padilla and the Guantanamo detainees share the ill-defined designation "enemy combatants" (although Padilla is a U.S. citizen held on U.S. soil, while the Guantanamo detainees are foreigners held at a U.S. naval base abroad). More than two years into an unprecedented and open-ended campaign against terrorism, it appears that we still lack the legal framework necessary to effectively process those we are compelled to apprehend. Civil libertarians at home and abroad have been raising a clamor about this for some time. Faced with their criticism, the government has not responded effectively. It has neither mounted a vigorous rebuttal, nor laid to rest citizens' legitimate concerns, instead leaving the issues to be resolved by the courts. At best, the administration's strategy is defensive and guaranteed to fuel endless controversy. At first glance, the explanation for this state of affairs might seem to be that offered by some of the critics themselves: that the Bush administration fits the standard pattern of government in time of war, bending to the demands of crisis and favoring security at the expense of liberty. The truth is different. Morally intimidated and bullied by civil libertarian ideologues, partisan opportunists, and a press almost universally hostile on these issues -- yet having accepted, along with the rest of the country, the lessons of Korematsu, the Red Scare, and the due process revolution of the 1960s -- administration officials seem, not surprisingly, to prefer to evade the debate or retreat behind the rhetoric of "security." The administration has failed to make its case well or to take modest actions that could strengthen its case. This in turn encourages the critics and deepens the government's reluctance to touch a set of issues on which it feels it can only lose. The time has come for the government to break this poisonous cycle. Balancing liberty and security in a way that is plain and understandable to all is a tough job, but it must be attempted. The centerpiece of a Bush administration civil liberties offensive should be creative institutional reform. A new terrorism court is the place to start. ORDINARY CRIMINAL COURTS are not designed for trying terrorism suspects. As a practical matter, they do not routinely provide the kind of security for witnesses, judges, and jurors that is required where terrorist attack and reprisal are a concern. More important, they cannot meet the need for secrecy that may arise from the use of sensitive testimony derived from confidential sources. Normal due process rights, including the right of defendants to confront witnesses against them, must be managed very carefully lest they undermine anti-terrorism efforts. Similarly, where potential defendants are apprehended on foreign battlefields, some standard Fourth, Fifth, and Sixth Amendment rights (having to do with search warrants, Miranda warnings, the right to have an attorney present while being questioned) and other rules pertaining to evidence (the exclusionary rule, the prohibition of hearsay evidence) are clearly out of place. The government must undertake a systematic sorting out of these and other similar legal issues. Too often, its response to the new challenges has seemed haphazard and inconsistent. U.S. citizen John Walker Lindh, captured in Afghanistan, was allowed to plead guilty to criminal charges with a lawyer at his side in a federal court, while citizen Yaser Hamdi, captured in similar circumstances, sits in a Navy brig with no sign of any day in court, whether civilian or military. Even more striking, while noncitizen Zacarias Moussaoui (the "twentieth hijacker" arrested in Minnesota before 9/11) has succeeded in turning his federal criminal trial into a three-ring due-process circus, citizen Padilla (arrested, like Moussaoui, on U.S. soil) shares the hapless fate of Hamdi. In a parallel development, the irregular legal status of the prisoners at Guantanamo Bay arises from our inability to apply ordinary rules -- in this case the rules of war -- to the special requirements of fighting terrorism. The "prisoner of war" designation is denied al Qaeda and Taliban fighters captured in Afghanistan, partly because they did not meet the usual requirements for that status of fighting in uniform and operating within the regular military structure of a recognized country. But their terrorism affiliation also changes the interest our government takes in them. There is a good case to be made for asking members of a clandestine terrorist organization to divulge more than their name, rank, and serial number -- all that may be asked of POWs. There is a need to detain such individuals as long as they are fairly deemed to pose a security risk (analogous to the situation of POWs) -- but in the new context of a conflict without a clear beginning and whose end is likely to be just as murky (by contrast with POWs). As a result of such difficulties, the government has designated citizen detainees Hamdi and Padilla on the one hand and the non-citizens at Guantanamo on the other as "enemy combatants." But this term, originating in Ex parte Quirin, a 1942 Supreme Court decision upholding the use of military tribunals to try Nazi saboteurs captured on U.S. soil, is not defined in that opinion, in statements by the administration, or in recent court rulings. Nor does it figure in U.S. statutes. Equally troubling, the term is ambiguous in its relation to the traditional and essentially unquestioned distinction in international law between lawful and unlawful combatants. One knows what to do with individuals in these two categories: hold the former in POW camps, and try the latter before some sort of war crimes tribunal. The enemy combatant designation, while it fills a legitimate need in the current context, exists in a legal limbo where no court, civil or military, has clear jurisdiction, and thus opens the door to valid concern about due process. INSTITUTIONAL REFORMS are needed to resolve these questions and signal clearly to Americans and a watching world that due process, even for terror suspects, matters to our government. Extraordinary measures presented as matters of executive authority, or justified in the name of security, have been tolerable during a period of adaptation to the new era, but they will fail in the long run. Leaving it to the Supreme Court to force the government to act, meanwhile, is a poor substitute for a forward-looking and forthright effort to face our unprecedented situation squarely and in a way consistent with the principles of the U.S. Constitution. To deal with terrorism cases that could be handled under the ordinary criminal law (as were, for example, the 1993 World Trade Center bombing, the Oklahoma City federal building bombing, and the case of Zacarias Moussaoui), Congress should create a new specialized court. This terrorism court would incorporate special security measures, protect the secrecy of sensitive information and sources, and make provision in its evidentiary rules for the peculiar situations arising from operations on a battlefield or its equivalent. Terror suspects should know the charges against them, have access to attorneys (specially trained, with the proper security clearances), and enjoy a right of appeal. To ensure independence from executive branch influence, federal judges with lifetime appointments should fill the bench. A terrorism court would provide a framework for the emergence of a body of precedent and the development of a cadre of specially trained expert judges and lawyers. There is some precedent for a roughly similar arrangement in the U.S. Foreign Intelligence Surveillance Court, created in 1978 and expanded under the Patriot Act. Experience in European countries (especially France, Germany, and Great Britain) in processing terrorism suspects in civilian courts also provides useful points of reference. A few legal thinkers have already advocated institutional reform along these lines. Its main supporters are to be found on the left. Roger Williams University law professor Harvey Rishikof (legal counsel at the FBI during the Clinton administration) has written a helpful, detailed, and thoroughly researched law review essay on the subject. And New York University law professor Burt Neuborne (onetime national legal director of the ACLU) floated the idea on the New York Times editorial page two years ago. Among conservatives, federal appeals court judge Michael Chertoff and law professors Viet Dinh of Georgetown and John Yoo of Berkeley have all begun hinting that some sort of "architectural" reform might be desirable. Their opinions count, because until recently all three worked in key positions at the Department of Justice and helped to fashion the Bush administration's legal response to the war on terror in the period immediately following the attacks of September 11. Is there an equivalent reform available in the case of the Guantanamo detainees? One possibility would be to pursue a suggestion from Morton Halperin, most recently director of the policy planning staff at the State Department under Clinton and a leading figure at the ACLU. He has called for giving those detained at Guantanamo some sort of structure or process within which to ensure that they are not being held arbitrarily, but were indeed involved in armed conflict against the United States. Such a procedure ordinarily extends to POWs and was followed in both wars in Iraq. It typically requires review by less than a full-blown military tribunal. It was not used in Afghanistan because irregular forces raised novel issues. Something along the lines Halperin suggests would serve to reassure ourselves and our allies that we do not take lightly our obligations to basic norms of due process, even in wartime. To be sure, as Defense Department legal counsel William Haynes has pointed out, Guantanamo detainees have been the subject of "a rigorous review of the facts under which they were captured and detained, as well as an interrogation process, a threat assessment process, a psychological analysis, a check of background information, a check of law enforcement authorities." But if an extensive review is already happening, why not formalize it and make clear to the world that careful procedures are being followed and, we believe, must be followed? This is another issue that Congress should consider clarifying by statute. As for how long the detainees will be held and what the process is for determining their fate, these matters too deserve to be clarified. OVER AND ABOVE the important legal details to be sorted out, several general principles should guide the effort. First, rules governing the detention of terrorism suspects, whether citizens or noncitizens, must be explicit, public, and comprehensible. This means above all setting out the meaning of "enemy combatant" and the justification for this special status. What are the criteria by which an individual may be determined to be an enemy combatant? Who (preferably outside the executive branch) is authorized to review challenges to the use of this designation? What rights (as a detainee, as an accused) does an enemy combatant have? Second, in designing the new architecture, the executive should not act alone. There are obvious roles for the other branches of government to play here. Congress, in the full light of day, should grant the president the requisite authority to act in this legally unprecedented situation. And it must create new institutions to make the administration of policy more rational and equitable. Where use of civilian courts would not interfere with legitimate security operations, they should be given a role as a review authority here. Third, the great civil libertarian principle of Ex parte Milligan -- the famous Civil War case that retroactively condemned Lincoln's excessive use of military tribunals in the North -- should stand: Civilian courts should be preferred wherever possible. In particular, there is no reason why special civilian tribunals could not deal with every issue raised by the detainees at Guantanamo, including individuals charged with war crimes. Granted, military tribunals are of unquestionable constitutional legitimacy, and military justice has proven itself in the past. Yet in the wake of the due process revolution, it is appropriate to insist upon the supremacy of the civilian judicial authority and the importance in a liberal democracy of deferring to it wherever possible. The standard justifications for using military tribunals -- battlefield pressures, and the inaccessibility of civilian judges -- do not apply to Guantanamo. Indeed, the Bush administration has recently taken a step toward enhanced civilian oversight, naming four civilians to serve as the reviewing authority for any decisions to be made by military tribunals at Guantanamo (though the four are being commissioned as major generals in the Army for the duration of their two-year terms). Why not take this a step further and mark off a new general precedent for minimizing the role of military tribunals in wartime? This could be a distinctive civil liberties legacy of the Bush administration, and one in which we lose nothing from the perspective of security. A PROACTIVE EFFORT to sort out these matters through broad institutional reform, undertaken before the government's hand is forced by the courts, could become the centerpiece of a Bush administration civil liberties offensive. To the extent that the administration has gained a reputation (however unjust) for slighting liberty in the name of security, it should want to set the record straight. The American people cannot be expected simply to give the government the benefit of the doubt forever, agreeing that seemingly extralegal measures are justified. Bold, institutional innovations, built to last, could send a clear message that this government reveres our heritage of due process and deference to law. By contrast, in the absence of such reforms, one may well ask: What will this government do to reassure the American people that even in the midst of the war on terror it is vigilant in upholding their liberties? Leaving aside every other consideration, in a nation dedicated to limited government, this is not an idle question. To move in this direction is clearly in the interest of the Bush administration. Democratic party politicians have proven themselves addicted to mischaracterizing the government's civil liberties record, and they have been successful in what amounts to a broad and irresponsible campaign of slander. If undertaken properly, the creation of a terrorism court and newly transparent procedures at Guantanamo would recast the debate and go a long way to neutralize such criticism. It's true that recently, ex-Department of Justice officials Chertoff, Dinh, and Yoo have broached the question of reform in public, even as they have defended the administration's actions thus far as reasonable responses to unforeseen challenges. But on the left and in the press their efforts have been presented as "jumping ship," and as amounting to simple criticism of their former boss, Attorney General John Ashcroft. The need for the administration to sort out these questions directly and boldly is plainer than ever. We may expect that the president's critics and partisan opponents will seize on any effort to improve and clarify the enemy combatant situation as one more excuse to attack the president. Indeed, there is a danger that a new terrorism court would itself be denounced as an authoritarian excess. One way to avoid such an outcome is to fashion a process for proposing and enacting institutional reform that would attract significant bipartisan support. One possibility is to name a presidential commission comprising sensible experts from both left and right and give it the task of drafting a preliminary proposal to be sent to Congress for hearings, debate, and enactment into law. Some radical civil libertarians are impossible to satisfy, but if the process were properly managed, their voices would carry little moral authority. Open, robust, and if necessary prolonged debate of the issues is not to be feared. On the contrary, it would only serve to aid the administration's cause. A bipartisan effort would deny civil libertarian critics the luxury of taking potshots from the sidelines if it forced them to engage with the hard choices the administration has thus far had to face alone. There are enough reasonable people of good will on both sides of these issues that an effort to address civil liberties concerns would not be wasted. FBI director Robert Mueller received a standing ovation from the ACLU (along with real criticism, to be sure) when he spoke at their national convention. Democratic senators Joe Biden and Dianne Feinstein have made a courageous defense of the Patriot Act, another recent sign that all is not lost on these issues to partisan sniping. Discussing a new court for terrorism suspects could help reframe the American civil liberties debate in a responsible and positive way. Seizing the initiative would provide the Bush administration with a fresh outlet for its own frustrated commitment to civil liberties, and allow it to emerge from the hailstorm of criticism that has left it paralyzed. Besides, it would seem that George W. Bush -- who has staked his presidency on meeting the terrorist threat -- ought do no less than equip the country with the permanent institutions and procedures it will need to complete the task. [ Thomas F. Powers teaches constitutional law at the University of Minnesota Duluth. ] * * * The Gaurdian (UK) -- January 11, 2004 GUANTANAMO BAY: TWO YEARS TOO MANY Director of Amnesty International UK Calls for Immediate Closure By Kate Allen http://politics.guardian.co.uk/comment/story/0,9115,1120631,00.html Today marks the second 'anniversary' of Guantanamo Bay, the moment the world first discovered that fighting the 'war on terror' would mean setting up unaccountable and inaccessible military prisons and filling them with hundreds of prisoners from all over the world. This is two years too many. From the moment images of manacled and blindfold men kneeling in submission in orange boiler suits flashed around the world, the USA's prestige took a nosedive. In letter after letter to both the White House and Downing Street, Amnesty International has made the point that legal representation and fair trials should be the bottom line not just for the nine Britons in Guantanamo Bay, but for all 650-plus detainees held in Camp Delta without charge or trial. With some of the Guantanamo prisoners now entering their third year of captivity without access to lawyers, and without charge or trial, the need for urgent moves to end this travesty of justice could not be clearer. As a former lawyer himself, Prime Minister Tony Blair for one must surely realise that Guantanamo Bay is nothing short of a disgrace and that basic human rights need to be restored. However, US Secretary of Defense Donald Rumsfeld has rejected concern about Guantanamo as "based on the shrill hyperventilation of a few people who didn't know what they were talking about." Actually it is Mr Rumsfeld's waspish remark that fails to convince. Did the United States really think that it could set up a modern gulag in defiance of decades of international legal standards and escape censure? In placing prisoners in the legal limbo of Guantanamo Bay's 'no-place' - neither American soil nor Cuban jurisdiction - the American administration appears to have made the rash wager that legal untouchability would equal moral inviolability. They have been proved staggeringly wrong. Criticism has poured in from such not especially shrill sources as the UN high commissioner for human rights, the Council of Europe, the Pope, a British law lord and countless people who have contacted Amnesty International. The Red Cross has taken the unusual step of going public about the deterioration in mental health it has witnessed among many of the Guantanamo detainees as a result of the indefinite and isolating incarceration regime. Aside from how it may play in the United States itself, this has been disastrous human rights public relations for a country that has regularly promoted itself as a "beacon" for democracy, justice and the rule of law. Ripping up the rulebook was hardly the right response when confronted by the grisly acts of a disaffected minority of extremists like al-Qaeda, who in any case recognise no rules. One can easily suppose that they have relished the sight of Muslims incarcerated in the Guantanamo dungeon, knowing that it provides them with fresh 'evidence' of what Osama bin Laden is pleased to call the "crusader-Zionist onslaught." Setting up Guantanamo Bay in January 2002 might have looked reasonable to some (it wasn't), but the folly of disregarding human rights is now plain to see. How to undo the damage? This year the US Supreme Court is set to examine whether it should have jurisdiction over what takes place at Guantanamo Bay, a strip of land leased to the United States by Cuba. If now the US belatedly sees fit to ensure that Guantanamo prisoners are either charged with recognisable criminal offences or released, that legal counsel is provided to all inmates (and interrogations meanwhile suspended), then much of the damage can be mended. If instead the US intends to defy criticism and ignore court rulings, then its reputation can only sink further into the hole it has dug for itself. Is America a big enough country to say that it was wrong on Guantanamo Bay? [ Kate Allen is director of Amnesty International UK ] * * * January 10, 2004 US CRITICIZED ON GUANTANAMO PRISONERS By Stevenson Jacobs, Associated Press http://www.kansascity.com/mld/kansascity/news/world/7680071.htm GUANTANAMO BAY NAVAL BASE, Cuba - Two years after the first prisoners began arriving at Guantanamo Bay in the wake of Sept. 11, families of detainees are asking how much longer they must wait for their loved ones to be tried or released. As the prison camp marks its second year anniversary Sunday, the United States also faced criticism from foreign governments and human rights groups, questioning why hundreds of terror suspects have been held for so long without charges or legal representation. "It is time to get our children back or for them to be tried in an impartial court," said Khalid al-Odah, a Kuwaiti whose 26-year-old son Fawzi was one of the first to arrive at the bleak outpost. "But nobody is listening. That is the problem." Al-Odah is hanging his hopes on his son's release or trial on the U.S. Supreme Court, which is to hear the first appeal early this year on whether the prisoners should have access to American courts, something opposed by President Bush. Over the past two years, U.S. officials have released 88 people held at the detention camp in eastern Cuba - but new ones have regularly been brought in, bringing the current number of detaines to around 660. While Washington has promised tribunals, it also continues to expand the prison. Eventually it will have 1,100 cells, raising further questions of what the future holds for the mission. Some U.S. lawmakers also have raised concerns about prolonged delays in the detainees' cases. Others say holding tribunals outside the jurisdiction of U.S. courts would make trials unfair. Many critics say the United States has abandoned its judicial principles in its zeal to prevent another terrorist attack on its soil. "You have people sitting there for two years with rights under international law being utterly ignored by the administration," said Jamie Fellner, U.S. director of Human Rights Watch. Since the first prisoners arrived on Jan. 11, 2002, the U.S. government has classified the men as "enemy combatants" and not prisoners of war, which would afford them more legal protection. They have been held without charge and interrogated repeatedly. Only last month were military defense lawyers assigned - and only to two prisoners. "We want to do it quickly, but we want to do it right," said Air Force Maj. John Smith, a lawyer in the office of military commissions at the Pentagon. He said the procedures now need only "tweaks and minor additions." A retired U.S. Army general has been appointed to oversee the tribunals, which apply the death penality. A four-member review panel has been chosen. The desks, name plates, closed-circuit television and government seals are already in place at a building in Guantanamo. Yet no order has been given for trials to start. The first tribunals could begin within 30 days of receiving an order, said Maj. Gen. Geoffrey Miller, commander of the detention operation. The detainees from 44 countries are being held on suspicion of links to Afghanistan's ousted Taliban regime or al-Qaida terror network, including three boys ages 13 to 15. The indefinite detention has drawn concern from several U.S. allies including Britain, which has nine citizens at the base. Johan Steyn, one of a panel of judges who sit in Britain's House of Lords, recently said holding the tribunals in Cuba would be a "monstrous failure of justice." Twenty-one prisoners have attempted suicide, some multiple times and most by trying to hang themselves, officials say. The U.S. government has denied mistreatment, noting detainees can exchange censored letters with family, are well fed and receive quality medical care. Officials began rewarding detainees last year for good behavior - and for providing information about terror cells. Miller says the amount of useful intelligence information has increased, although he has refused to talk about how the information has helped the war on terror. Inside a medium-security area, detainees deemed cooperative play soccer and talk with other detainees. But one privilege that has been eliminated is contact with the camp's Muslim spiritual adviser. Authorities suspended the meetings last year after the arrest of Muslim chaplain Capt. James Yee on accusations of mishandling classified information. He was one of four arrested by investigators looking into alleged security breaches at the base. The new Muslim chaplain, Capt. Khallid Shabazz, arrived two weeks ago but said he will only minister to Muslim soldiers - not detainees. * * * Boston Globe: January 10, 2004 HIGH COURT ACCEPTS CASE ON DETENTION OF US CITIZENS By Lyle Denniston, Globe Correspondent WASHINGTON -- The Supreme Court yesterday agreed to examine the indefinite detention of US citizens who have been designated "enemy combatants," marking the court's most significant step into the constitutional questions surrounding the war on terrorism. The case, involving the detention of Yaser Esam Hamdi, challenges the most sweeping authority President Bush has claimed in responding to the attacks of Sept. 11, 2001, and presents the Supreme Court with a chance to decide the extent of presidential power in an undeclared war. Congress has not taken the formal step of declaring war on Al Qaeda and other terrorists. The appeal filed on behalf of Hamdi, a US citizen who grew up in Saudi Arabia and was captured in Afghanistan late in 2001, challenges his detention without charges in a Navy brig. The lawyer handling his appeal, public defender Frank Dunham Jr., called the case "an important one for the nation, and for the courts." The Justice Department vowed to "vigorously defend the president's authority to capture and detain enemy combatants. This authority is crucial in times of war." The purpose of such detention, according to department spokeswoman Monica Goodling, "is to prevent enemy combatants from continuing to aid those who would seek to injure our people, as well as to gather intelligence to thwart further terrorist assaults." The justices' review will require an interpretation of how much power Congress granted to the president in its terrorism resolution passed in the immediate wake of the 2001 attacks, and it will sort out how far federal courts can go to review presidential and congressional actions to deal with this new form of warfare. Cases growing out of the war on terrorism have been arriving at the Supreme Court over the past year, but the justices have passed up most of them, often for procedural reasons. In November they agreed to rule on the first such case, a test of whether hundreds of foreign nationals now being held at the US Naval Base at Guantanamo Bay, Cuba, have a right to challenge their detentions in US courts. No US citizens are held at Guantanamo. Dunham argued in his filing that a federal appeals court that dismissed a challenge to Hamdi's detention "embraced an unchecked executive power to indefinitely detain American citizens suspected of being affiliated with enemies and abandoned procedural safeguards designed to promote truth and fairness." The Bush administration's position -- that the president can declare individuals to be enemy combatants and detain them indefinitely -- relies on several World War II-era precedents from the Supreme Court. The justices will have to decide whether the government has the same sweeping authority when military action does not involve a war formally declared by Congress as when it does. The Supreme Court may decide to hear a closely related case involving another US citizen declared an enemy combatant, Jose Padilla, who is suspected of plotting with Al Qaeda to detonate a radioactive "dirty bomb." Although the Justic Department recommended that the Supreme Court not review Hamdi's case, the justices voted to accept it, also rejecting another department request to wait until Jan. 20, when it plans to appeal the Padilla case. That signaled the importance the court attaches to the constitutional dispute. Hamdi was labeled an "enemy combatant" on Bush's orders after he was captured along with a Taliban military unit by allied forces in Afghanistan after Bush ordered US combat troops in October 2001 to root out Al Qaeda forces there. He was held for a time along with other terrorism suspects at the US Navy base at Guantanamo. After Hamdi was found to be a citizen because of his birth in Louisiana, he was transferred to a Navy brig in April 2002 -- first to one in Norfolk, Va., then to another in Charleston, S.C. He has been denied contact with a lawyer and access to the courts, and permitted only written contact with his family. His father challenged the detention. The Pentagon only recently decided to allow Hamdi access to a lawyer, but he apparently has not seen one yet. The US Court of Appeals for the Fourth Circuit, based in Richmond, last January threw out the constitutional challenge to Hamdi's detention, concluding that the judiciary has a limited role in reviewing the president's handling of a combatant captured on a foreign battlefield. The government branches "most accountable to the people" -- Congress and the presidency -- "should be the ones to undertake the ultimate protection and to ask the ultimate sacrifice from them" in war, the appeals court said. The Fourth Circuit also ruled that "the designation of Hamdi as an enemy combatant bears the closest imaginable connection to the president's constitutional responsibilities during the actual conduct of hostilities." In the Padilla case, the US Court of Appeals for the Second Circuit, based in New York, held in December that the president does not have the authority to order the detention of a US citizen who has been designated an enemy combatant and arrested in this country. That appeals court ordered Padilla's release within 30 days, but the Justice Department will ask that the order be delayed pending the outcome of its appeal. The justices are likely to hear Hamdi and Guantanamo cases in April, with final decisions by early next summer. If they decide to hear the Padilla case, it would likely follow a similar timetable. * * * Los Angeles Times: January 10, 2004 HIGH COURT TO RULE ON CITIZENS HELD IN TERROR WAR * Justices will decide whether the president can detain American suspects without charge. By David G. Savage, Times Staff Writer http://www.latimes.com/la-na-scotus10jan10,1,7038444.story WASHINGTON -- The Supreme Court agreed Friday to rule on the most far-reaching claim of presidential power in the new war on terror: whether American citizens can be arrested and held by the military without charges on order of the president alone. The case, to be heard in April, ultimately tests whether the war on terrorism is a true war and one that extends across the nation as well as to battlefields abroad. In November 2001, shortly after the Al Qaeda attacks on New York and Washington, President Bush issued an executive order announcing that he planned to hold military trials for "noncitizens" who were arrested in the war on terrorism. The plan was widely criticized by civil libertarians, and the proposed trials have yet to take place. Six months later, however, the president's lawyers asserted a far broader claim of executive power. They said the military, on the president's order, could arrest and hold in secret U.S. citizens who were deemed be "unlawful enemy combatants." The administration's lawyers said these people had no right to speak to a lawyer or their families. Moreover, they had no right to contest the charges against them in court. Unlike prisoners of war, these "unlawful combatants" had no rights under the Geneva Convention to a military hearing to argue they were not, in fact, enemy soldiers. And they were outside the protections of American law, and therefore, judges had no authority to second-guess the president's decision. While asserting this broad authority, the administration has used it sparingly. Only three men, all Muslims, have been publicly identified as "enemy combatants," and only two have had their legal claims heard in federal court. The first, Yaser Esam Hamdi, is a Saudi national who was fighting for the Taliban regime in Afghanistan. He surrendered to U.S. troops in fall 2001 and was taken to the U.S. Naval Base at Guantanamo Bay, Cuba. Military authorities learned he was born in Louisiana, and was therefore a U.S. citizen. In April 2002, he was sent to a Navy brig in Norfolk, Va., where he was held without charges and without being permitted to speak to a lawyer or his family. A month later, the FBI arrested Jose Padilla, a Bronx-born Muslim, at Chicago's O'Hare International Airport after he disembarked from a flight that had originated in Pakistan. Investigators suspected he was involved in an Al Qaeda plot to detonate a radioactive "dirty bomb" in the United States, and Atty. Gen. John Ashcroft hailed his arrest as a major victory in the war against terrorism. But rather than charge Padilla with conspiracy to commit an act of terror, the Bush administration dubbed him an "enemy combatant" and sent him to a Navy brig in Charleston, S.C. Lawyers for both men challenged their detention, and two federal appeals courts have issued conflicting rulings. The conservative U.S. Court of Appeals in Virginia upheld Hamdi's detention, ruling that the Constitution gives the commander in chief the clear "authority to detain those [combatants] captured in an armed struggle" against the United States, regardless of whether they are citizens or foreigners. However, its opinion stressed that Hamdi was captured on a foreign battlefield. In December, the liberal U.S. Court of Appeals in New York ruled for Padilla and said he must be charged with a crime or released. "Padilla's detention was not authorized by Congress, and absent such authorization, the President does not have the power ... to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat." This week, U.S. Solicitor Gen. Theodore B. Olson, Bush's top courtroom lawyer, said he planned a fast-track appeal in Padilla's case. The New York ruling "undermines the president's constitutional authority to protect the nation from additional enemy attacks in wartime." Separately, lawyers for Hamdi had urged the court to review his case. It "works a radical change in the balance between the three branches of government [to condone] an open-ended executive power to imprison American citizens," they said. The justices met Friday for the first time since their holiday recess, and they voted to take up the issue of "enemy combatants." Though the court is taking up the case of Hamdi vs. Rumsfeld, its ruling is likely to decide the Padilla case as well. Bush's lawyers say "time-honored law and customs of war" make clear that the military can capture and hold enemies. "The Executive's determination that an individual is an enemy combatant is a quintessentially military judgment" and is off-limits to second-guessing by the courts, Olson said in his appeal. Defenders of the administration say it makes no sense to give terrorists and enemy soldiers a right to hearings in federal court. They also said they were not worried that the court voted to hear Hamdi's appeal over the administration's objection. Pepperdine University law professor Douglas W. Kmiec called the decision to hear Hamdi's case "a positive development." He predicted the court will not "interfere with necessary military decision-making," but instead will "write a narrowly drawn opinion that affirms it in the new and perplexing circumstances on the war on terror." On the other side, critics said Bush has followed a lawless course by ignoring both the Geneva Convention and the U.S. Constitution. They said Hamdi and Padilla should either be treated as prisoners of war or accused criminals. "The United States' treatment of [Hamdi] radically departs from settled law and history" on prisoners of war, Yale University law professor Harold Hongju Koh said in a friend-of-the-court brief on behalf of experts in international law. The high court agreed in November to decide whether the nearly 600 foreigners held by the U.S. military at Guantanamo are entitled to a court hearing to assert their innocence. * * * Los Angeles Times: January 10, 2004 SWISS POLICE ARREST EIGHT IN SAUDI BOMBING By Sebastian Rotella, Times Staff Writer http://www.latimes.com/news/nationworld/world/la-fg-swiss10jan10,1,6010119.story PARIS -- In Switzerland's biggest operation against Islamic terrorism, police have arrested eight suspected accomplices in May's Al Qaeda car-bomb attack against expatriate housing compounds in Saudi Arabia, authorities said Friday. About 100 police officers conducted raids and questioned 20 people Thursday, law enforcement officials said. The arrests took place in the cantons of Geneva, Zurich, Bern, Vaud and Aargau. The suspects could be charged with giving logistical support to a criminal organization, authorities said. "The police action was in the context of terrorism investigations, especially in connection with the May 12 attack in Riyadh," federal police said in a statement. Teams of car bombers hit three housing compounds in the attack in the Saudi capital, killing 26 people, including a Swiss citizen. The nine assailants also died. Until now, most of the suspects identified by police have been Saudis apprehended in their native country and accused of acting on the orders of top Al Qaeda figures. But soon after the attacks, Saudi officials said a number of key suspects had escaped to Europe or the U.S. The people rounded up in Switzerland were all foreigners, said authorities, who declined to describe the alleged role of the suspects in the bombings or give other details. A European law enforcement official familiar with the case said the suspects in Swiss custody included Moroccans and Tunisians active in a European network that had provided support to Al Qaeda's far-flung operatives. Although the idea of operatives in tranquil Switzerland participating in an attack in the Middle East might seem unusual, officials say Khalid Shaikh Mohammed, the Al Qaeda operational mastermind captured in March in Pakistan, apparently worked with accomplices and front companies in Switzerland as he allegedly concocted two terrorist plots. Surveillance by European and U.S. agents indicated that Mohammed communicated with suspected accomplices in Switzerland to organize the flow of funds and instructions to a terrorist who carried out the suicide bombing of a synagogue on the Tunisian island of Djerba in April 2002. Mohammed allegedly used a Swiss cellphone while he was a fugitive in Pakistan. Mohammed also allegedly directed the movements of Jose Padilla, a U.S.-born convert to Islam who was arrested in Chicago in May 2002 in an alleged plot involving a radioactive "dirty bomb," investigators say. Padilla stopped in Zurich on his way to the United States; authorities suspect he may have received money and assistance from an Al Qaeda logistical cell set up by Mohammed in Switzerland. Wiretaps of Mohammed's phone calls, combined with evidence seized during his capture, gave police key clues about suspected terrorist activity in Switzerland. Thursday's arrests may have been aided by that evidence and, the European law enforcement official said, are likely to involve other cases as well. Swiss investigators have frozen bank accounts worth $28 million that are allegedly connected to Islamic extremism. But this week's police operation appears to have focused on ground-level logistical networks, not Middle Eastern bankers accused of taking advantage of the secretive Swiss financial system to aid terrorists, the law enforcement official said. * * * Toronto Star: January 10, 2004 LAWYERS TO FIGHT FOR JAILED KHADR Take battle for Canadian's rights to top U.S. court Teen held at Guantanamo Bay for two years By Michelle Shephard, Staff Reporter http://www.thestar.com/NASApp/cs/ContentServer ?pagename=thestar/Layout/Article_Type1&c=Article&cid=1073689811980 &call_pageid= 968332188854&col=968350060724 Two Canadian lawyers will go before the U.S. Supreme Court to fight for the rights of 17-year-old Omar Khadr, who has been locked in solitary confinement at the American navy base in Guantanamo Bay, Cuba, for more than a year. The teenager is the only Canadian known to be held there since his older brother, Abdurahman, was released last fall. Edmonton lawyer Dennis Edney said he filed a motion in the court this week in support of a U.S. case challenging the constitutionality of the detentions. Edney, and his partner, lawyer Nate Whitling, argue that the U.S. government is in violation of the International Covenant on Civil and Political Rights, a treaty they signed agreeing not to detain Canadian citizens arbitrarily. Edney also argues that since Omar was only 15 when arrested in July, 2002 -- he arrived in Guantanamo that autumn -- the United States government also violates the United Nations Convention on the Rights of the Child in detaining the youth in harsh conditions. "In this case, we have a child who was arrested when he was 15 and he has been in isolation for two years," Edney said yesterday. "He's confined to a 2.4 metre by 1.8 metre cell for at least 23 hours a day. He receives 15 to 30 minutes of outdoor exercises approximately two to three times per week. He is interrogated regularly." Khadr has been visited by Canadian intelligence officials while in custody but, like all Guantanamo detainees, has been barred from contacting his family or a lawyer. And being kept incommunicado is perhaps the worst aspect of their detention, says Steven Watt, a lawyer with the Centre for Constitutional Rights in New York. Watt welcomed the supportive role of the Canadian lawyers on behalf of the Khadr case, known as amicus curiae (friend of the court) status, in the cases of Shafiq Rasul versus George W. Bush and Fawzi Khalid Abdullah Fahad Al Odah versus the United States, which are slated to begin next week with written submissions. Edney and Whitling said they were surprised that they received no response from Foreign Affairs Minister Bill Graham after sending him a letter Dec. 11 asking that Ottawa, too, establish intervening status in the case. "The Canadian government has chosen not to participate. I think it's sad, I think it's disappointing," Edney said in a telephone interview. "Their participation would carry significant weight with the U.S. Supreme Court. "It would be of great assistance to Mr. Khadr and protecting his legal rights as a juvenile and also it would send a message to the U.S. Supreme Court and to the American government about how we feel about protecting our Canadian citizens." Watt said while no other foreign governments had amicus curiae status, other countries such as Britain and Australia had forcefully lobbied on behalf of detained nationals. While Omar Khadr has not been charged officially, it is alleged that he threw a grenade that killed an American medic during a battle in Afghanistan in 2002. U.S. authorities say they are still searching for Omar's father, Ahmed Said Khadr, known to intelligence officials as "Al Kanadi" -- the Canadian. Two other former Montreal residents, Algerian Ahcene Zemiri and Mohamedou Ould Slahi, a Mauritanian, are also being held in Guantanamo Bay and have been visited by Canadian intelligence officials. In a separate matter yesterday, the Supreme Court agreed to decide whether a U.S. citizen detained abroad can be kept indefinitely in a military jail, yet another challenge to how Bush has conducted the war on terror. The high court agreed to hear an appeal by Yaser Esam Hamdi challenging whether U.S. officials have the power to detain him indefinitely as an "enemy combatant" in a navy jail in Charleston, S.C. Hamdi was captured in Afghanistan in November, 2001, but never charged. * * * The Gaurdian (UK): January 10, 2004 GUANTANAMO BAY: A GLOBAL EXPERIMENT IN INHUMANITY The US example now legitimises oppression across the world By Louise Christian http://politics.guardian.co.uk/foreignaffairs/story/0,11538,1120129,00.html Two years ago today, Feroz Abbasi, a British citizen arrested in Afghanistan, was one of the first detainees to be transferred hooded, shackled and manacled by the US military to Camp X-Ray in Guantanamo Bay. His mother, Zumrati, who lives in Croydon, was informed about five days later - by the media. It took a further six days for a British government official to contact her. Significantly, she was assured that her son did not need a lawyer. Two years on, it is clear that the British government has betrayed the most fundamental responsibility that any government assumes - the duty to protect the rule of law. This abnegation of the essence of democratic government goes much further than a failure to protect the nine British citizens who are incarcerated in this legal black hole. It is nothing less than a collusion in an international experiment in inhumanity, which is being repeated and expanded around the world. The UK government has been intimately involved in the nightmare world that is Guantanamo Bay from its inception. Britain sent its own security agents to interrogate its citizens and residents in the presence of the US military without a lawyer present, and in the knowledge that techniques of sensory deprivation and coercion were being practised. For a full year and a half the British government refused to express any view on the legality of the detentions; not even of its own citizens and not even when challenged in the UK courts to do so. In July 2003, military commission trials were announced for Feroz Abbasi and Moazzam Begg from Birmingham. Leaks from the Pentagon made it clear that a deal had already been secured. A show trial would take place, based on confessions extracted under duress, in which both men would plead guilty. Only under pressure from parliament and the media were junior ministers then authorised to make polite noises of feigned dissent. In July, an instruction was issued to the attorney general to enter into bogus negotiations to secure what it was already clear was not possible - a fair trial in Guantanamo Bay. The extent to which our own government had become implicated in the Guantanamo Bay experiment should also have become apparent when they created their own replica model here. It was claimed by them to be superior, but mainly because they passed an undemocratic law, the Anti-terrorism Crime and Security Act, requiring a derogation from the newly enacted Human Rights Act. Consequently, 13 British residents are locked up indefinitely, without trial, in this country. As with all prisoners detained for an indeterminate period, their mental health is severely affected. One has already been confined to psychiatric detention. Recently, the Privy Council committee set up to scrutinise the act concluded what should have been apparent from the outset: that such detention is unjustifiable. But, because of the lack of public outcry, the government looks set to ignore the committee. Worldwide, the experiment is becoming the norm. It has been estimated that at least 15,000 people are being held without trial under the justification of the "war on terrorism". They include more than 3,000 detained in Iraq after the war, of whom at least 1,000 are still in detention; an estimated further 1,000 to 3,000 detained at Bagram airbase in Afghanistan; and an unknown number being held on the British territory of Diego Garcia. Bagram is a CIA interrogation centre, practising "stress and duress" or "torture lite". An investigation has reportedly begun there after the deaths of two prisoners in suspicious circumstances. US personnel stationed at Bagram have described the regular practice of sensory deprivation and sleep starvation, as well as incidents of throwing prisoners against walls while hooded. Ironically, such revelations have surfaced not through any desire to expose human rights abuses, but in order to justify describing such treatment as "torture lite". Meanwhile, three US soldiers were discharged this week for beating and harassing Iraqi prisoners of war, and there are reports that British troops beat eight young Iraqis, one of whom died in custody as a result. In the US itself, the experiment continues. Over 1,000 people were arbitrarily detained in the immediate aftermath of September 11. The US government refused to give names or details to civil rights groups. Many became subject to immigration procedures and were eventually deported. Inevitably, non-US citizens in this situation receive no attention from the national media. But there are also three US Muslims detained indefinitely as "enemy combatants", two of whom were detained on US soil. One of these, Jose Padilla, was seized out of the custody of the justice department by the Pentagon and placed on a military prison ship, accused of being in possession of a "dirty bomb". In court proceedings, Vice-Admiral Lowell Jacoby of the US military argued that detaining Padilla indefinitely without a lawyer was justified in order to gain information. Providing him access to counsel, so the logic went, "would create an expectation that his ultimate release might be obtained through an adversarial civil litigation process. This would break - probably irreparably - the sense of dependency and trust that the interrogators are attempting to create." It is of grave concern that the example being set by the US and the UK is being used to legitimise repression internationally on an ever-increasing scale. From China, which has imprisoned up to 100 Chinese Muslims without trial, to Uzbekistan (up to 1,000), Yemen (200), Morocco, Saudi Arabia, Jordan, Egypt, India and Indonesia, this alarming lead is being eagerly followed. In Israel and Chechnya, there would be far more people in prison without trial had not the authorities there taken matters one step further and authorised extra-judicial killings. They were safe in the knowledge that the US government boasted last year of killing alleged al-Qaida members in Yemen. Yesterday, the comments of Pierre Richard Prosper, the US ambassador on war crimes, disclosed what has been suspected for some time; that it is now the British and not the US government that stands in the way of the British citizens detained in Guantanamo being returned home. When Tony Blair was asked about Guantanamo in the House of Commons this week, he spoke not about human rights abuses there but about what he described as the "immense importance" of the information gained from detainees. What can an ordinary person do about a world turned on its head, where governments that claim to be democratic engage in repression, coercion and even torture on an international scale? Everyone needs to protest - peacefully, but as loudly and as persistently as they are able. Every act counts. And let everyone be certain of this: those who experiment in inhumanity will have no appetite to stop unless there is such protest. [ Louise Christian is the lawyer acting for the families of three of the British citizens and one British resident detained in Guantanamo Bay. ] louisec@christiankhan.co.uk * * * The Gaurdian (UK): January 10, 2004 BLUNKETT ACCUSED OF BLOCKING MEN'S RETURN Strong hints of early release for seven Britons played down By Tania Branigan, The Guardian http://politics.guardian.co.uk/foreignaffairs/story/0,11538,1119955,00.html Lawyers for British detainees held at Guantanamo Bay in the "war on terror" yesterday accused David Blunkett of blocking the men's return, as US human rights campaigners played down strong hints of their release. On Thursday Pierre Prosper, US ambassador at large on war crimes issues, said detainees could be repatriated if the UK was able to "manage" them after their return - possibly via long-term surveillance. The prime minister had already told the House of Commons that he hoped to have news on the Britons "shortly", which officials said meant "weeks, rather than days". But previous indications of progress in their cases have never developed into concrete commitments. The detention camp on the US naval base in Cuba opened two years ago tomorrow. But while 84 men have been allowed to leave, 660 prisoners, nine of them Britons, are still held there without charge, trial or prospect of release. Two refugees who had been resident in Britain are also detained at the base. "It's intolerably cruel for the families. This has been dragging on for a long time and it's no good just blaming the US," said Louise Christian, who acts for three of the men held at Camp Delta. "The UK government is not an innocent bystander in all this, but is heavily implicated in what's going on. "I'm afraid the fear is that it's our own home secretary who is the obstacle. "David Blunkett is fearful that the public mood may change or that he will be criticised if they can't be prosecuted [in the UK]." The Bush administration had previously indicated that it would repatriate the nine Britons if the UK promised that they would be prosecuted, but experts believe it might be impossible for the men to receive a fair trial after such a lengthy detention without access to lawyers. Clive Stafford-Smith, who acts for several British detainees in the US, also attacked the home secretary. He claimed that the Americans were keen to get rid of the men because two of them are plaintiffs in a supreme court case examining whether US courts should have jurisdiction over Guantanamo Bay. "It's a purely cynical American ploy to get rid of this case," said Mr Stafford Smith. "They don't want their supreme court to say that Bush has been violating the law. They are desperate to get rid of these guys and want the British to play ball. Prosper is putting pressure on the British government." A spokeswoman for the Home Office declined to comment, beyond saying that the future of the prisoners was a matter for the government as a whole. The Foreign Office said that negotiations were continuing. But American human rights campaigners were sceptical about the Bush administration's commitment to progress, and pointed out that previous hints of large-scale releases had not resulted in action. "There has been no basic change in policy," said Wendy Patten, US advocacy director for Human Rights Watch. "We still don't know who the detainees are, what they have allegedly done and whether or when they will be charged with anything." Jeffrey Fogel, legal director for the Centre for Constitutional Rights in New York, said: "I wouldn't trust anything sent out as a trial balloon by a government official. "I don't know if it's that they don't know what they're doing, or are [saying] it with some other idea in mind. We're not sure what postures it's taking to affect the supreme court." Other British campaigners have accused the government of failing its citizens by not pressing the US hard enough to reach a compromise with Lord Goldsmith, the attorney general. "It would be helpful to [the attorney general] as well as to those acting on behalf of the detainees if the government had simply said: 'We are not prepared to put up with this'," said Peter Carter QC, chairman of the bar's human rights committee. The anxieties of the detainees' relatives have, if anything, increased with the trickle of news from the camp over the last two years. There are concerns about the mental health of the men; there have been at least 28 suicide attempts, and Feroz Abbasi, from Croydon, was diagnosed with depression by a US military forensic psychiatrist. Mr Abbasi and Moazzam Begg, from Birmingham, have been listed to face trials in front of military commissions. Campaigners fear that the length and conditions of their detention, as well as the rules of the military tribunals, have meant they cannot receive a fair hearing. "There's a real fear that the US government has a psychological need for a show trial in which people will make a dramatic confession and that people have been coerced into making false confessions and that the prison sentences will be very long to meet the US need for justification over Guantanamo Bay," said Ms Christian, who represents Mr Abbasi. Mr Prosper indicated that the two men might be included in a repatriation deal. "We are prepared to prosecute these two but at the same time the president has an open mind," he said this week. Mr Begg's father Azmat said that he was encouraged by the comments. "There now seems a good possibility that my son could be coming home," he said. But Habib Rasul, whose younger brother Shafiq is among those held at the base, was more sceptical. "In two years nothing has happened. Your hopes are raised and then plummet," he said. "At first I was confident the British government would intervene. Twenty-four months later they have done bugger all and I am still at the same stage." As they wait for news, families of the detainees say their main comfort over the last two years has been the growing condemnation of Camp Delta from the international legal establishment, the media and the public. Relatives say they have received letters of support from all over the world, including many from the US, and 20,000 people responded to Amnesty International's Christmas card campaign for Shafiq and his friend Asif Iqbal. "We have got a tremendous amount of support and the views are changing, especially with the younger generation. People that just didn't want to know are now turning around and saying, what the hell is going on?" said Habib Rasul. The British detainees Jamal Udeen, 35, a school administrator from Manchester. Born Ronald Fiddler, he converted to Islam in his 20s. The Americans found him in a Kandahar jail; his family says he had been arrested while on holiday because the Taliban feared he was a spy Feroz Abbasi, 23, a former computer student from south London, is believed to have been detained at Kunduz, Afghanistan, in December 2001 Moazzam Begg, 36, from Birmingham, was arrested by Pakistani security forces in Islamabad in February 2002 and handed over to the US military, held in Afghanistan, then transferred to Camp Delta Shafiq Rasul, 25, from Tipton, West Midlands, was in Pakistan for a computer course after leaving university. Unconfirmed reports suggested he was detained in northern Afghanistan. His family believe he may have been arrested in Pakistan Martin Mubanga, 29, a motorcycle courier from north London, was raised a Catholic. He had dual nationality and appears to have fled Afghanistan for Zambia, only for authorities there to hand him to the Americans in spring 2002 Asif Iqbal, 20, a parcel depot worker from Tipton, flew to Pakistan in September 2001, at his family's suggestion, to meet a prospective bride Tarek Dergoul, 25, a former care worker from east London, left Britain in summer 2001; his family learned he was held in Cuba in May 2002. He had allegedly been captured in the Tora Bora mountain complex in Afghanistan and is said to have had an arm amputated Rhuhel Ahmed, 20, a student from Tipton, told his family he was going out to help his friend with wedding plans Richard Belmar, 24, from London, was raised a Catholic and converted to Islam in his late teens. He flew to Pakistan in summer 2001 Two British residents are also held at the base. Bisher al-Rawi, an Iraqi national, lived in Kingston, south-west London, and was granted indefinite leave to remain in the UK more than 19 years ago. Jamil al-Banna, a Jordanian national, was granted refugee status in 2000 * * * The Independent (UK): January 10, 2004 GUANTANAMO FAMILIES ACCUSE BLAIR OF BLOCKING RELEASE By Robert Verkaik, Legal Affairs Correspondent http://news.independent.co.uk/uk/legal/story.jsp?story=479785 Families of the British detainees held in Guantanamo Bay have accused the Prime Minister and the Home Secretary of blocking their sons' early release from prison. The claim was made after a senior American official told reporters that his government had dropped its demand that all nine Britons should stand trial if they were repatriated. Pierre-Richard Prosper, the US Ambassador-at-Large for War Crimes Issues, said that if Britain could safely "manage" the terrorist risk the men are alleged to pose then it would not be necessary to charge them with criminal offences. He said seven of the nine British suspects had been assessed as posing a "medium risk" in terms of future terrorist activity. The remaining two were described as "high risk." Louise Christian, solicitor for three of the nine families, identified the Home Secretary, David Blunkett, as the only obstacle to the men's release. "I think the US has been prepared to release them without a trial but the British Government has been acting as an obstacle to them being returned," she said. "It's been the case for some time that the Government is opposed and the feeling has been that David Blunkett is the reason." Ms Christian said that she suspected Mr Blunkett was concerned that he may be criticised if the suspects, who have been held for two years, were not charged with criminal offences in this country. These fears were partly confirmed when the shadow Foreign Secretary, Michael Ancram, yesterday demanded that all detainees face the "full rigour of the law" when they are sent home. In a letter to the Foreign Secretary, Jack Straw, he suggested that they should be put on trial for treason. His letter said: "We agree, however, with Pierre-Richard Prosper ... that, if returned and if there is sufficient evidence, they should face the full rigour of the law in this country." Mr Prosper indicated that in the cases of Feroz Abbasi, from Croydon, and Moazzam Begg, from Birmingham, the Americans were not prepared to soften their stance. He said they had been classified as "high risk" and needed more stringent management that could only be guaranteed if they were tried by the Americans. But Ms Christian said it would be an "absolute betrayal" by the British Government if any of the detainees were treated separately and sent before the US military commissions. Azmat Begg, 65, a retired bank manager and father of Moazzam Begg, blamed the Prime Minister for the failure to help his son. "It has nothing to do with the Americans. Mr Bush said last year: 'It's nothing to do with me, it's to do with Mr Blair'. I think they want to keep my son in Guantanamo because of all the noise I have been making about his detention." Mr Begg said the letters he had received from Guantanamo Bay suggested that his son was not in a "presentable condition" to be released. "He's complained about marks and bruises on his body and something to do with his fingernails, which may be evidence of torture." Mr Begg said he was shocked that the Americans had categorised his son as a high-risk terrorist. "How can it be that he is high-risk detainee? My son couldn't hurt a fly. He lived in this country for 35 years and did nothing wrong. Suddenly he's capable of destroying the White House or harming the President. They've been investigating for two years but haven't come up with any evidence against him." The Americans have suggested that if the British can place the detainees under close police surveillance this might satisfy them that the British were "managing the threat." Mr Begg said his son would "happily" comply with any legal request to control his movements in this country. The British prisoners CATEGORY 1: HIGH-RISK Moazzam Begg, 35, from Birmingham, was seized by Pakistani security forces in Islamabad in February 2002 and handed to the US military. Feroz Abbasi, 23, from London. Captured by US forces in Afganistan in December 2001. Born in Uganda and came to Britain when he was eight. CATEGORY 2: MEDIUM-RISK Shafiq Rasul; a 24-year-old law student from Tipton, West Midlands, was captured by the Northern Alliance, and handed to the US in Afghanistan in December 2001 Asif Iqbal, 20, a parcel depot worker from Tipton. Held in Afghanistan. He went to Pakistan with his father, Mohammed, to find a wife. Ruhal Ahmed, 20, from Tipton. Captured in Kandahar. Asif Iqbal and Rhuhel Ahmed were classmates in Tipton. Jamal Udeen, a website designer, aged 35, from Hulme, near Manchester. Arrested in Afghanistan. Claims he was travelling and got caught up in the fighting. Tarek Dergoul: a 24-year-old former care worker from east London. Arrested in Afghanistan. Martin Mubanga, 29, a motorcyle courier from west London. His father is a Zambian government official. It is believed he was handed over to the US by Zambia. Richard Belmar, 24, who attended a Catholic school in north London, and converted to Islam in his teens, after his elder brother. He worshipped at Regent's Park mosque, close to his home in Maida Vale, London. * * * Sydney Morning Herald: January 10, 2004 BRITS COULD BE SENT HOME BUT HICKS STAYS IN GUANTANAMO BAY (AAP) - The father of Australian terrorist suspect David Hicks today slammed the federal government's failure to negotiate with the United States for the release of Guantanamo Bay prisoners. His outburst came amid reports that the first of nine Britons held at the US military base in Cuba could be repatriated within weeks. London newspaper The Times reported US ambassador for war crimes Pierre-Richard Prosper as saying detainees could be repatriated if Britain was able to manage them after their return. The report said British officials predicted that negotiations with Washington on the prisoners' future could be completed within weeks, or a few months. But the Foreign Office said no deal was imminent. "When we've got something to say, we'll say it. We need to be patient," a spokesman said. Prime Minister Tony Blair's spokesman would not be drawn, saying the Britons' fate was a matter for the prosecuting authorities. One government source said talk of a deal was "premature" and that agreement could be weeks or months away. He said there were no plans to return Moazzam Begg and Faroz Abassi, two Britons whom the US authorities categorise as high risk. A lawyer acting for Abassi's mother said it appeared the United States was keen for a quick deal, but that the British government was blocking it. "I am worried that the Home Secretary (interior minister David Blunkett) is standing in the way of them being brought back here," solicitor Louise Christian told Reuters. "He doesn't want the responsibility." The nine Britons are among 660 detainees being held without charge at the US naval base in Cuba. It was set up in January 2002 to hold combatants captured in Afghanistan and also houses others suspected of having links with Osama bin Laden's al-Qaeda network, accused by Washington of carrying out the September 11, 2001 attacks. Their treatment has appalled human rights groups who believe the prisoners will be deprived of a fair trial. Amnesty International urged Blair to end the "legal black hole" at Camp Delta in a letter delivered to his Downing Street office today. "We have urged that he calls on the US government to ensure legal representation and fair trials are the bottom line not just for the nine Britons but for all 650-plus detainees," Amnesty UK director Kate Allen said. Hicks' father Terry said the British action contrasted with that of the Australian government. "The Australian government has not acted hard enough with the American government," he told ABC radio. "All of a sudden you hear the British demanding their people back, and they're negotiating, so what I'd like to know is what the hell has the Australian government been doing?" A spokesman for Foreign Minister Alexander Downer said the government was unaware of any official moves for the Britons to be released. "The situation with Hicks and Habib is unchanged as far as we're concerned," he said. Fellow Australian Mamdouh Habib is being held with Hicks at Guantanamo Bay. Hicks, from Adelaide, is expected to be among the first detainees to face a US military tribunal. * * * ABC (Aus) News: January 10, 2004 GOVT CRITICISED FOR 'INACTION' ON HICKS http://www.abc.net.au/news/newsitems/s1023211.htm The father of alleged Taliban fighter, David Hicks, says the possible release of several British Guantanamo Bay prisoners, while his son is due to undergo a trial by the US military, raises questions about the Federal Government's efforts on his behalf. The British Government has been negotiating for the release of nine of its nationals. His father, Terry, says it is a contrast to the actions of the Australian Government. "The Australian Government has not acted hard enough with the American Government," he said. "All of a sudden you hear the British demanding their people back, and they're negotiating, so what I'd like to know is what the hell has the Australian Government been doing." The US ambassador for war crimes has indicated that seven of the nine Britons may be released, provided they are monitored by police or security services in Britain. A spokesman for Foreign Minister Alexander Downer says he is not aware of any decision on the release of the Britons. He says the treatment of UK detainees is strictly a matter between the US and Britain and the American Government has not offered to repatriate Australians David Hicks or Mamdouh Habib. David Hicks is expected to be among the first detainees to face a US military tribunal. He is currently in solitary confinement in Guantanamo Bay. * * * January 9, 2004 PENTAGON LAWYERS SAY SADDAM IS A POW By Matt Kelley, Associated Press WASHINGTON (AP) - Pentagon lawyers have determined that Saddam Hussein has been a prisoner of war since American forces captured him on Dec. 13, a Defense Department spokesman said Friday. Despite that determination, Secretary of State Colin Powell told CBS News: "I don't know that he has been formally declared a prisoner of war." That decision was up to the Pentagon, Powell said. Whether or not Saddam is a prisoner of war could be key to how he is treated in captivity and eventually put on trial. The Geneva Conventions on treatment of prisoners of war forbid any kind of coercion in POW interrogations, for example. Powell said, "We are certainly treating everybody in our custody in accordance with basic rights and expectations of international agreements that we have." A senior British official said Friday Saddam had not given useful information to his interrogators. The senior official, who briefed journalists on condition of anonymity, said U.S. authorities were taking their time questioning Saddam in the hope that he might eventually open up. Defense Secretary Donald H. Rumsfeld said Tuesday that Saddam and all Iraqi captives are being treated in compliance with the Geneva Conventions. He said Saddam's legal status was being reviewed by several U.S. agencies and no determination had been made. The general counsel office in the Pentagon - the Defense Department's top civilian lawyers - has determined that Saddam is a prisoner of war because of his status as former commander in chief of Iraq's military, spokesman Maj. Michael Shavers said Friday. The lawyers determined that no formal declaration of Saddam's status was needed, he said. U.S. officials have said they plan to turn Saddam over to an Iraqi court for trial. The United States says Saddam's government killed at least 300,000 Iraqis, including thousands of Iraqi Kurds in a poison gas attack in 1988. But the Geneva Conventions say POWs can be tried only for crimes against humanity by an international tribunal or the occupying power - which in this case is the United States. Powell said the Bush administration had to decide when to hand Saddam over to Iraqi authorities. "We believe the credibility of the new Iraqi government will be measured by how they handle this horrible dictator," Powell said. POW status also would entitle Saddam to meet with representatives from the International Committee of the Red Cross. No such meeting has happened. Some human rights groups have complained that other top former Iraqi officials in U.S. custody haven't been given access to Red Cross representatives. Saddam is being held and interrogated by the CIA. Iraqi officials say he is being held in the Baghdad area. * * * Knight Ridder WAshington Bureau: January 9, 2004 SUPREME COURT TO HEAR CASE OF US-BORN DETAINEE By Stephen Henderson, Knight Ridder Newspapers http://www.realcities.com/mld/krwashington/7674202.htm WASHINGTON - The Supreme Court agreed Friday to review another key piece of the Bush administration's war on terror, saying it will decide by July whether Yaser Esam Hamdi can use federal courts to challenge his detention. Hamdi, a U.S. citizen caught fighting for the Taliban in Afghanistan, has been designated an "enemy combatant" by the administration and is being held without charges or access to a lawyer. The administration says Hamdi poses a continuing threat to the United States and that the president's broad authority to wage war includes the ability to detain combatants while hostilities are under way. Hamdi's father filed a challenge to that position, saying his son deserved a chance to fight the accusations against him in court. "I shouldn't even have to make an argument here," said Frank Dunham, a federal public defender who's handling Hamdi's case. "The government has made accusations, and based solely on those accusations, he has been held incommunicado without any trial, without any counsel and without any chance to review the charges. That shouldn't happen to any U.S. citizen." Hamdi's case rounds out an expansive court look at the struggle between national security and civil rights in the wake of the Sept. 11, 2001, terror attacks. The Bush administration has decided to suspend ordinary legal protections for U.S. citizens and foreigners with suspected terrorist ties, over objections from civil rights groups. The high court has waded deeply into the debate by agreeing to review several cases that should produce a string of blockbuster opinions by early summer. In addition to the Hamdi case, the justices will consider whether 16 foreigners nabbed on the battlefields of Afghanistan and detained in Guantanamo Bay, Cuba, should have access to federal courts and whether the government can kidnap criminal suspects - such as Osama bin Laden - in other countries and bring them to the United States for trial. The court hasn't decided whether to hear the case of Jose Padilla, another U.S. citizen being held as an enemy combatant without access to lawyers. The 2nd Circuit Court of Appeals said the president had no right to hold Padilla as an enemy combatant because he's a U.S. citizen and ordered him released from military custody. The administration has asked the high court to hear the case on an expedited basis. All of the cases test the power of the executive branch to bypass judicial review when dealing with national security in the battle against terrorism. They also test how much the government can infringe on the individual civil liberties that are fundamental parts of the criminal justice system. Hamdi initially was successful in persuading a federal judge to question the assertion that he was an enemy combatant. The judge ordered that the government prove its position. But the 4th Circuit Court of Appeals in Richmond, Va., overturned the ruling, saying it would defer to the administration's judgment that Hamdi was a combatant. The court also said that Hamdi's right as a U.S. citizen to a judge's review of his detention was outweighed by the government's interest in preserving national security. The Bush administration, which has argued since the 2001 terror attacks that citizens and noncitizens can be declared enemy combatants, initially asked the Supreme Court to stay out of the Hamdi case. In a brief filed with the court last month, the administration said it would permit Hamdi to meet with a lawyer because he was no longer being interrogated - a move intended to minimize the constitutional issues at stake in the case and dissuade the justices from hearing it. But after the administration lost in the Padilla case, it asked the justices to consider Hamdi's and Padilla's appeals together to weigh the "interrelationship" between the two cases. Justice Department spokeswoman Monica Goodling said Friday that the department would "vigorously defend" its power to detain enemy combatants. "This authority is crucial in times of war whether the enemy combatants are individuals such as Hamdi, who join our enemies on the battlefield to fight against America and its allies, or whether they are individuals such as Jose Padilla, who was found by the president to have infiltrated our border, intent on committing hostile and warlike acts against our nation." Dunham, Hamdi's lawyer, said the administration has yet to fulfill its promise to let him meet with Hamdi, saying it has to work out the "procedures" under which the meeting could take place. Hamdi is being held in the Naval Brig in Charleston, S.C. "They've been telling me, 'It's coming, it's coming,' but that has turned out to be like 'The check is in the mail,'" Dunham said. "This guy now has a case before the United States Supreme Court and he can't even talk to his lawyer about it." * * * Toronto Star: January 9, 2004 LAWYERS SAY TREATMENT OF CANADIAN AT GUANTANAMO 'VULGAR' Canadian Press http://www.thestar.com/NASApp/cs/ContentServer?pagename= thestar/Layout/Article_Type1&c=Article&cid=1073646145567&call_pageid= 968332188774&col=968350116467 EDMONTON - Two lawyers are going to the U.S. Supreme Court to fight for the rights of a Canadian teen who is being held as an enemy combatant at Guantanamo Bay military prison. Omar Khadr, 17, has been locked in solitary confinement in the prison since he was arrested by U.S. forces in Afghanistan in July 2002, said his Edmonton lawyer Dennis Edney. "Omar has not been given an opportunity to tell his story and we don't lock up young children in solitary confinement for years without giving them the opportunity to determine the truth," he said today. "I personally find this whole thing just vulgar." Khadr lost most of the sight in one eye from injuries when he was captured. He is accused of killing an American soldier with a hand grenade, but has not been formally charged with any crime. Nor has the Ontario-born teen been allowed to meet with a lawyer or been given a chance to appear before a judge, Edney said. Edney and lawyer Nate Whitling plan to intervene on Khadr's behalf in two cases before the U.S. Supreme Court. The cases are challenging the U.S. government's imprisonment of people without trial at the Cuban-based prison. The legal brief the lawyers are filing focuses on Khadr's rights as the only juvenile in the facility, Edney said. The court is expected to hear the case sometime in the next four months. Edney asked the Canadian Department of Foreign Affairs to intervene in the case. But a Foreign Affairs spokesman said yesterday from Ottawa that the department won't get involved. Edney was approached by Khadr's family last September to represent the teen. Khadr's 20-year-old brother Abdurahman was freed from the prison last month after almost two years in captivity. He told reporters last month he spent three months at an Afghanistan training camp with links to al-Qaida learning to use Russian assault rifles in 1998, but denied accusations that he has any links to terrorism. The elder Khadr refused to talk about conditions at the top-secret Guantanamo Bay military prison where he spent nine months. But Khadr said he spent three months at Camp Khaldan in Afghanistan near the Pakistan border. He said he regretted attending the camp, which he described as a rite of passage in a country ravaged by war. The camp was one of several militant camps believed to have been financed by terrorist mastermind Osama bin Laden. U.S. authorities have alleged Khadr's father, Ahmed Said Khadr, was a trusted associate of bin Laden. Khadr said his father is dead. The senior Khadr was reported killed in fighting with U.S. authorities in October, along with his eldest son, Abdullah. But other reports have disputed that claim, saying the pair remains in hiding. Members of the Khadr family worked for a relief organization called Health and Education Project International Canada, Khadr said. They visited Canadian mosques to solicit money for Afghanistan. * * * CBS News: January 9, 2004 HIGH COURT TAKES COMBATANT CASE http://www.cbsnews.com/stories/2004/01/09/terror/main592389.shtml (CBS/AP) The U.S. Supreme Court expanded its review of government anti-terrorism measures Friday, agreeing to hear the case of a U.S.-born man with Saudi parents captured during the fighting in Afghanistan and held incommunicado and without charges. The high court said it will consider the appeal from Yaser Esam Hamdi, whom the government has labeled an enemy combatant ineligible for ordinary legal protections and a danger to the United States. CBS News Correspondent John Hartge reports this is considered a test case on the Bush administration's handling of enemy combatants. It is the second major terrorism-related case the high court will hear this term. The court will probably hear the Hamdi case in April, with a ruling expected by July. The high court's decision to review the case is another in a recent series of legal setbacks for the Bush administration in terrorism cases. The administration had strongly urged the high court to stay out of the Hamdi case, or to shelve it for now pending an appeal in the similar case of another U.S.- born terrorism suspect. "This is an enormous step forward for the Supreme Court and it's hard to see how the Court's ruling won't be monumental -- either the justices will significantly limit the president's power over U.S. citizens or they will endorse that power," said CBS News legal analyst Andrew Cohen. The administration won its argument in a lower court that Hamdi may be held indefinitely and without the usual legal rights due to U.S. citizens, and wanted that ruling to stand. Hamdi's father filed a civil liberties challenge on his son's behalf, and a lawyer who has never met Hamdi is pressing the case at the Supreme Court. The 4th U.S. Circuit Court of Appeals wrongly bowed to government arguments about security, lawyer Frank Dunham told the high court is a legal filing. The lower federal appeals court not only "embraced an unchecked executive power to indefinitely detain American citizens suspected of being affiliated with enemies, but it also abandoned procedural safeguards designed to promote truth and fairness." In response, the Bush administration's top Supreme Court lawyer called Hamdi a prime example of a dangerous terror suspect who should be locked up. "Hamdi is a classic battlefield detainee -- captured in Afghanistan, an area of active combat, with an enemy unit," Solicitor General Theodore Olson told the court. Despite that argument, the government recently agreed to allow Dunham to visit his would-be client. The government still contends Hamdi is not constitutionally entitled to a lawyer, and that question will still be a part of the Supreme Court case. Officials decided to grant the access to a lawyer because Hamdi is a U.S. citizen and the military has finished interrogating him, the Pentagon said last month. Hamdi has not been charged with any crime. The move was seen at the time as an attempt to blunt criticism of government anti-terror tactics, and a way to improve the government's legal standing at the Supreme Court. The meeting has not yet taken place. Earlier this week, Olson asked the justices to put off consideration of the Hamdi case, at least until the government finishes a hurry-up appeal in the similar case of Jose Padilla, a former gang member seized in Chicago in an alleged plot to detonate a radioactive "dirty bomb." Padilla was declared an enemy combatant and like, Hamdi, eventually transferred to the South Carolina naval prison. The administration plans an appeal in the Padilla case by Jan. 20, and had suggested that the justices consider the two cases together. The court did not address that request in its brief order granting review in the Hamdi case. It is not clear now whether the court will also agree to hear the Padilla appeal when it comes. The two cases raise slightly different constitutional issues, because Hamdi was captured abroad and Padilla was picked up on U.S. soil. The Padilla case represents one of the largest legal losses for the administration since the Sept. 11 2001 terrorist attacks. A New York federal appeals court ruled last month that President Bush lacks the authority to declare Padilla an enemy combatant and hold him in open-ended military custody. The 2nd U.S. Circuit Court of Appeals gave the government 30 days to release Padilla or try him in a civilian court. Cohen said it is possible the Supreme Court will take up the Padilla case, now that it has accepted the Hamdi case. The Supreme Court has already agreed to hear a challenge from foreigners who, like Hamdi, were seized overseas as suspected al Qaeda terrorist or Taliban fighters. Some 650 foreigners are held at the U.S. naval prison camp at Guantanamo Bay, Cuba, without charges and until recently, with no access to lawyers. Over objections from the Bush administration, the high court said in November that it will decide if those detainees may challenge their treatment and detention in U.S. courts. One detainee has been given a lawyer since the high court agreed to hear the case. A ruling in the Guantanamo case is also expected by summer. Ali Saleh Kahlah Al Marri, a man from Qatar, has also been designated as an enemy combatant of the United States for allegedly paving the way for al Qaeda operatives to settle in America. * * * Tucson Citizen: January 9, 2004 9 AT GUANTANAMO MAY BE RELEASED TO BRITAIN IF CONDITIONS MET http://www.tucsoncitizen.com/breaking/010904guantanamo.html LONDON (AP) - The United States will allow British detainees at Guantanamo Bay to return home only if they are prevented from engaging in terrorist activity, an American official was reported as saying Friday. Pierre-Richard Prosper, the U.S. ambassador-at-large for war crime issues, said the nine Britons being held at the naval base in Cuba posed a serious or medium threat, The Times of London reported. Prosper was quoted as saying they would have to be "detained and investigated, and-or prosecuted" if they came back to Britain. "There can't be a situation where a dangerous person is released and (flies) an airplane into the next tall building around the world. That concern remains," Prosper was reported as saying. "We are not asking for absolutes. We are not asking for a guaranteed conviction," he said. "But we are saying: these are dangerous people, they are engaged in dangerous activity." A spokesman for the U.S. Embassy in London said The Times accurately reported Prosper's comments. He said Prosper left Britain early Friday for an undisclosed location. Prime Minister Tony Blair has said talks are under way to determine the fate of the British detainees. He said Wednesday that he would make an announcement to Parliament on the issue "shortly." "These issues are complex and discussion has been taking place between ourselves and the U.S. as to how it can be resolved," Blair's official spokesman said Friday, briefing reporters on condition of anonymity. He said the prisoners would either face a military tribunal in the United States or be brought back to Britain. Asked to clarify what would happen to the detainees if they came home, the spokesman said: "Clearly, that will be an issue for the prosecuting authorities." The Foreign Office said it couldn't comment, adding that it expected Blair's announcement to be made in the next few weeks. Prosper told The Times that negotiations for the prisoners' return were examining each case individually. "We are asking that they be detained and investigated, and-or prosecuted," he said. "But it is not just a blanket request we have put in. "What makes it much more complex is that we have to have these discussions on each individual." Prosper said the Guantanamo detainees fell into three categories: Those perceived as the most serious threat, those who posed a medium threat and those who posed no threat or a low threat. He said the Britons fell into the first two categories. In Guantanamo Bay, meanwhile, a U.S. general said Thursday that some of the hundreds of prisoners expressed shock when told recently of the capture of Saddam Hussein. Interrogators told some detainees of the war in Iraq in June, and word of Saddam's capture reached others during interrogations in December, Maj. Gen. Geoffrey Miller said. The entire prison population was later informed of Saddam's capture by loudspeaker after officials determined there was no risk to security or intelligence-gathering, Miller said, without specifying the date. "We told them we had a war with Iraq, we told them the United States won, and we told them we captured Saddam Hussein," Miller said. "There was some shock." Some 660 detainees from 44 countries are being held at the base in eastern Cuba on suspicion of links to the fallen Taliban regime of Afghanistan or al-Qaeda terror network. U.S. officials decline to provide a breakdown of their citizenship, ages or the reasons they are being held. Among them are some Iraqis captured in Afghanistan, Miller said, though he declined to say how many. U.S. authorities have not charged them or given them access to lawyers. * * * ABC News: GUANTANAMO BAY TRANSLATOR WANTS RELEASE Guantanamo Bay Translator to Ask for Release Pending Trial for Possessing Classified Documents http://abcnews.go.com/wire/US/ap20040109_895.html WORCESTER, Mass. (AP) -- A former Guantanamo Bay translator who was arrested last fall with classified documents in his luggage wants to be released on bond while he awaits trial, his lawyer said Friday. Michael Andrews said he will ask a magistrate judge to release Ahmed Fathy Mehalba with restrictions. A hearing was scheduled for Friday afternoon at U.S. District Court in Worcester. Mehalba, 31, has been held without bail since he was arrested Sept. 29 at Boston's Logan International Airport after a visit to his native Egypt. Customs agents found 132 compact discs in his luggage, including one that contained hundreds of classified documents labeled "SECRET," according to a government affidavit. He has pleaded innocent to charges of gathering, transmitting or losing defense information and making false statements. Prosecutors say Mehalba lied to federal investigators when he told them he was not carrying any government documents from Guantanamo Bay. More than 650 prisoners have been held at the Guantanamo Bay naval base since the Sept. 11, 2001, terrorist attacks. Mehalba faces a sentence of up to 10 years in prison and a $250,000 fine on the defense information charge, and a sentence of up to five years in prison and a $250,000 fine on each of two false statements charges. * * * Hampton Roads Virginian-Pilot: January 9, 2004 CONGRESSMAN CHALLENGES DETENTIONS OF TERROR SUSPECTS AT GITMO By Dale Eisman, The Virginian-Pilot WASHINGTON -- The Bush administration's failure to bring formal charges or provide access to lawyers for suspected terrorists detained at the Guantanamo Bay Naval Base invites similar treatment of American troops who may be captured abroad, a local congressman warned Thursday. "We are jeopardizing our soldiers by not abiding by the Geneva Convention," said U.S. Rep. Robert C. Scott, D-3rd District. Scott, a lawyer, is among a growing group of lawmakers challenging the administration's detention at Guantanamo of terror suspects captured in foreign countries. About 660 prisoners are currently held there. The administration has said it expects to bring at least some of the detainees to trial before special military commissions. But while some of the prisoners have been held at Guantanamo for two years, none has been formally charged, and only six have been designated for trial. Only two detainees have been given access to lawyers. Scott and 12 other House members wrote Defense Secretary Donald Rumsfeld last month to complain that the detentions are "wholly inconsistent with our basic commitment to fair procedures for determining the guilt or innocence of individuals." Three senators, including Republicans John McCain of Arizona and Lindsey Graham of South Carolina, sent a similar letter to Rumsfeld after a visit to the detention center in early December saying that "a serious process must be established ... either to formally treat and process the detainees as war criminals or to return them to their countries." Rumsfeld had not replied to either letter as of Thursday. In an interview, Scott asserted that the Guantanamo detentions are unprecedented in U.S. history. The lengthy holding of terror suspects, without charges or trials, circumvents the normal "checks and balances" that are central to the American judicial system, he said. * * * Toronto Globe and Mail: January 9, 2004 CHRETIEN WAS KEPT IN THE DARK ABOUT ARAR By Jeff Sallot http://www.globeandmail.com/servlet/story/RTGAM.20040109.uarar0109/BNStory/ National/ Ottawa -- Former prime minister Jean Chretien was kept in the dark about the RCMP's involvement in the case of Maher Arar even as Canada was loudly protesting against the U.S. decision to deport the Ottawa man to Syria, federal documents show. The newly declassified documents, and interviews with officials, also suggest that bureaucrats gave incorrect or incomplete information to Mr. Chretien and other ministers about the way Canadian diplomats handled the Arar case in the crucial days between his arrest by U.S. authorities and deportation. "These documents raise more questions than they answer about who knew what and when," Lorne Waldman, Mr. Arar's lawyer said yesterday. "Only a public inquiry can get to the bottom of this." Mr. Arar, 33, a Syrian-born Canadian, was arrested as a suspected terrorist on Sept. 26, 2002, at New York's JFK airport. The RCMP had previously flagged Mr. Arar for U.S. authorities as a "person of interest," U.S. government sources have told The Globe and Mail. In the early hours of Oct. 8, 2002, he was deported to the Middle East where he says he was tortured. He spent 10 months in solitary confinement in a dark, rat- infested prison cell in Damascus. He has never been charged with a crime and was released by Syria three months ago. As his ordeal was unfolding, Canadian political leaders were getting incomplete and inaccurate information about his case from their officials. Alex Himelfarb, the Clerk of the Privy Council and Canada's most senior public servant, prepared a secret three-page memorandum for Mr. Chretien on the Arar case on Oct. 18, 2002 -- 10 days after Mr. Arar was deported and three days after Canada lodged a formal protest with the United States. The memo details Canadian diplomatic efforts on Mr. Arar's behalf, including the calling in of U.S. ambassador Paul Celluci to receive an official protest. But the memo also says the Privy Council Office -- the very hub of the government -- had no information about RCMP involvement in the case. "It is unknown at this time if Mr. Arar is under criminal investigation by the RCMP," the memo says. The then solicitor-general, Wayne Easter, minister responsible for the RCMP, was also unaware at that time that the RCMP had passed along information about Mr. Arar to U.S. officials, federal government sources said. Privy Council officials said they cannot answer questions about the declassified documents. They noted that the Arar case is being investigated internally by the RCMP complaints commission and an oversight committee for the Canadian Security Intelligence Service. But generally speaking "the RCMP is really under no obligation to inform anybody ... of operational matters of this type," spokesman François Jubinville said. Senior RCMP officers have also said they will not discuss the Arar case. If, in the middle of a diplomatic flap, the prime minister and his most senior official did not know what the federal police were up to -- or could not find out -- "this raises serious concerns about who controls the RCMP," Mr. Waldman said. (U.S. government sources have told The Globe and Mail Mr. Arar became a suspect only after the RCMP identified him to them.) Secretary of State Colin Powell was the first U.S. official to inform a Canadian cabinet minister that the Mounties were in fact involved in the investigation of Mr. Arar. Mr. Powell told Foreign Affairs Minister Bill Graham during a meeting in Ottawa Nov. 14, a month after Canada's diplomatic protest. The documents, declassified this week and obtained for Mr. Arar by researcher Ken Rubin, also indicate that Canadian officials had early knowledge that the Syrians were going to interrogate Mr. Arar about U.S. allegations that he was connected to terrorism. An Oct. 23, 2002, memo prepared by the Privy Council Office for ministers says: "Syrian authorities are investigating the suggestion by U.S. authorities that he has a connection to al-Qaeda." There is no mention in the memo of RCMP involvement in the case. On the contrary, the document indicates that Canadian officials believed Mr. Arar was innocent. "Once he is cleared of such charges, we will seek his return to Canada." Another declassified memo says that Canadian consular officials in New York were informed by U.S. authorities on Oct. 7, 2002, that Mr. Arar's deportation hearing would be held later that day, a holiday Monday in the United States. No consular official attended the hearing. The memo suggests this was because consular officials believed Mr. Arar would be represented by a lawyer. The memo -- dated Oct. 20, or 12 days after Mr. Arar was deported -- is incorrect on several counts, Canadian officials now say. The hearing was held on the Sunday night, Oct. 6, not on Monday. Mr. Arar's lawyer was not present. She did not get the voice-mail notification of the hearing until Oct. 7. And despite what the memo says, Canadian consular officials did not learn about the hearing in advance, Gar Pardy, who was head of the consular affairs branch at the Department of Foreign Affairs at the time, said yesterday. Yet this incorrect version of events was repeated in later memos to senior ministers. "There was a lot of confusion at that time" about when people first learned of the hearing, Liberal MP Dan McTeague, the parliamentary secretary with special responsibilities for consular affairs, said yesterday. As late as April 29, 2003 -- almost seven months after the deportation -- the Privy Council Office prepared a memo for Mr. Chretien and then deputy prime minister John Manley saying: "We were advised that an immigration hearing would be held on the evening of October 7 and it was understood that his lawyer would be attending." * * * Boston Globe January 9, 2004 SUSPECT HELD IN LA BOMB PLAN Former resident of Quebec remains at Guantanamo By Colin Nickerson, Globe Staff http://www.boston.com/news/world/articles/2004/01/09/ suspect_held_in_la_bomb_plan/ MONTREAL -- A former Quebec resident suspected of conspiring in the failed 2000 "millennium" bomb plot against Los Angeles International Airport has been held in secret for two years at the US military detention facility at Guantanamo Bay, Cuba, according to his Canadian wife and officials in Canada. Ahcene Zemiri, 36, who allegedly helped bankroll the foiled attempt by fellow Montrealer Ahmed Ressam to smuggle explosives and detonating devices into the United States from Canada, was captured in Afghanistan in 2001, then transferred soon afterward to the high-security facility at Guantanamo, his wife, Karina Zemiri, told an Islamic activist group in an interview published this week on the group's website. Canadian officials confirmed yesterday that Zemiri is being held at Guantanamo and has been interviewed by at least one Canadian intelligence officer. But unlike in other cases involving Canadians caught in the US campaign against Al Qaeda and affiliated terrorist groups, Ottawa is not pressing Washington on Zemiri's behalf because he is not a Canadian, although he lived for most of the 1990s in Montreal. "We are monitoring the case only because of Mr. Zemiri's Canadian link -- his wife," said Reynald Doiron, spokesman for the Canadian Ministry of Foreign Affairs. "He is an Algerian national, not a Canadian citizen or landed immigrant." According to Canadian media reports, Zemiri has been barred from returning to Canada after being deemed a "threat to national security," apparently because of his affiliation with the Montreal-based Al Qaeda cell that dispatched Ressam and other conspirators on the thwarted attack against the busiest airport on the West Coast during celebrations around New Year's Day 2000. But Zemiri's case offers the latest example of how, despite warnings by US and European intelligence agencies, Canada's generous refugee rules allowed suspected terrorists to easily operate in cities near the American border before the attacks of Sept. 11, 2001. Zemiri came to Canada in 1994 from Algeria by way of Spain using false French travel documents. In 1998, he was caught using a forged Quebec baptismal certificate to try to acquire a Canadian passport, a ploy used successfully by Ressam and other members of a "sleeper cell" linked to Al Qaeda that was organized in Montreal in the mid-1990s. Zemiri was fined $400, but no attempt was made to deport him even though his name was on a "security watch" list maintained by French and Canadian intelligence agencies, officials in both countries said. Karina Zemiri, who still lives in Canada, told the British-based Internet site cageprisoners.com -- run by Islamic opponents of the Guantanamo detentions -- that in 2001 the couple left Canada for Afghanistan, aiming to "undertake relief work for orphans and widows." Volunteers for the terrorist training camps in Afghanistan operated by Al Qaeda routinely used relief or charitable work as their cover story for traveling through Pakistan. In November 2001, amid the collapse of the Taliban regime in Afghanistan, Karina Zemiri returned to Canada at her husband's behest to give birth to their son, Abdul Karim. She did not hear from her husband until summer 2002, when she received the first of a series of postcards from Guantanamo, apparently forwarded by the International Committee of the Red Cross. She said her husband wrote that he had been captured by the American-backed Northern Alliance while seeking to escape into Pakistan in mid-December 2001, and was turned over to US troops. He apparently was flown to Guantanamo Bay soon afterward along with other foreign nationals believed to have fought for the Taliban and Al Qaeda. "We thank Allah that we are alive," he wrote in one card. "I have learned many things since I have been incarcerated; I now know the way to love." In testimony in US court in 2001, Ressam implicated Zemiri in the plot to bomb the Los Angeles airport, according to The Globe and Mail, a Canadian newspaper. Ressam testified that Zemiri, whom he described as "having a jihad" -- that is, Zemiri considered himself a holy warrior of Islam -- provided him $3,500 to help pay for the mission. Ressam was apprehended by a US customs agent in Washington state after driving off a ferry from British Columbia on Dec. 14, 1999, in a rented car loaded with explosives, detonating devices, and maps marking West Coast airports. He was convicted in April 2001 in the United States on nine counts of smuggling and terrorism. He has been seeking to reduce a possible 130-year sentence by giving evidence and testimony against other suspected Al Qaeda operatives formerly based in Canada. Zemiri is one of three detainees at Guantanamo with Canadian ties. The others are Omar Khadr, an Ontario teenager who allegedly killed a US soldier in Afghanistan, and Mohamedou Ould Slahi, a Mauritanian national who lived in Montreal in the 1990s and is suspected of using a mosque in the city as cover for recruiting Al Qaeda volunteers for missions against the United States. © Copyright 2004 Globe Newspaper Company. * * * CBS News: Jan. 8, 2004 Due Process For Terrorists? http://www.cbsnews.com/stories/2004/01/08/opinion/main592130.shtml Discussing a new court for terrorism suspects could help reframe the American civil liberties debate in a responsible and positive way. (The Weekly Standard) This commentary from The Weekly Standard was written by Thomas F. Powers. * * * Chariho Times (RI): January 8, 2004 CHIEF JUSTICE WILLIAMS NAMED TO MILITARY TRIBUNAL BOARD By Will Richmond http://www.zwire.com/site/news.cfm?BRD=1717&dept_id=74264&newsid=10761871 PROVIDENCE - The United States Department of Defense has named Frank J. Williams, Rhode Island's Supreme Court Chief Justice, to serve as a review panel member for military commissions. Williams - who lives in Richmond - will serve in the position for approximately two years. During that time he will be commissioned as an Army Major General. While serving on the panel Williams is expected to participate in hearing the testimony of detainees held in Guantanamo Bay, Cuba concerning the ongoing war against terrorism. The appointment, which was announced last Wednesday, will not interfere with Williams' duties for the state. Travel for the position is considered intermittent and is expected to be scheduled so not to interfere with any of Williams' judicial duties. Williams said that he was honored after learning of the appointment last week. "I am privileged and proud to have been chosen to serve my country in this capacity," Williams said. "I look forward to undertaking this mission with the same sense of justice and honor I value in my role as your chief justice." As a Military Commission Review Panel Member Williams is responsible for reviewing written and oral arguments by the Defense, Prosecution and the government of the nation of which the accused is a citizen. The panel is then able to return cases for further proceedings if they find that there is an error of law. The panel is also able to recommend if an imposed sentence should be approved, mitigated, commuted, deferred or suspended. According to the Department of Defense the panel is similar to that of an appellate court in the civilian court system. Along with Williams, Secretary of Defense Donald H. Rumsfield designated three additional members to the panel. * Judge Griffin Bell, former U.S. Attorney General and former U.S. Circuit Judge, U.S. Court of Appeals for the Fifth Circuit; * Judge Edward G. Biester, Judge, Court of Common Pleas of Bucks County, Pennsylvania, Seventh Judicial District; former Pennsylvania Attorney General, and former member of the U.S. House of Representatives; * Hon. William T. Coleman, Jr., former Secretary of Transportation. Appointees to the panel are selected based on their experience, impartiality and judicial temperament according to the Department of Defense. After his appointment to the panel, Williams explained that accepting the position was an easy decision. "I feel it is my patriotic duty to accept the Department of Defense's invitation to serve on the review panel," Williams said. "It is an honor for both the Judiciary and the state of Rhode Island." Williams has served as Rhode Island's Chief Justice since 2001. Prior to that Williams was the State's Associate Justice of the Superior Court. Williams also served as a Captain in the U.S. Army during the Vietnam War and was awarded the Combat Infantrymen's Badge, the Bronze Star, and from the Republic of Vietnam, the Gallantry Cross with the Silver Star for Valor. Williams is also the founding Chairman of The Lincoln Forum and has served as the President of the Ulysses S. Grant Association since 1990. Locally Williams formally served as Richmond's town moderator as well as Hopkinton's solicitor and judge of probate. * * * KOLR-TV (Springfield, MO): MILITARY RULES ON SEN. DOLAN'S LEAVE TO VOTE By David A. Lieb, Associated Press http://www.kolr10.com/Global/story.asp?S=1591061&nav=0RXJK2xM JEFFERSON CITY, Mo. (AP) - The Missouri senator who left his military assignment in Cuba to cast the critical vote on concealed guns legislation did not knowingly engage in wrongdoing, Army officials said Wednesday. But state Sen. Jon Dolan's political activities did violate rules that bar National Guard members from carrying out functions of political office while on a tour of duty, the Army concluded after an internal investigation. Dolan received a letter of admonition - a relatively light punishment - because the rules he violated were not clear or widely known. "There was no deliberate wrongdoing on anybody's part in this situation," said Steve Lucas, a spokesman for the Southern Command, which oversees U.S. military operations in Latin America and the Caribbean. After receiving a directive to either cease all senatorial duties or end his active military duties, Dolan requested to be released from active duty and left Guantanamo Bay, Cuba, on Dec. 23, Lucas said. Dolan said he officially remains on active duty - although on leave - until next Tuesday and will resume work as a senator Jan. 20. Dolan, a Republican from Lake St. Louis, was assigned to Cuba as a public affairs major through the Missouri Army National Guard. He requested and was granted leave by his immediate supervisors to return to Missouri in September, when he cast a deciding vote to override Democratic Gov. Bob Holden's veto of a bill allowing most Missourians to carry concealed guns. Lucas said Army officials should have made it clear to Dolan in September that regulations prohibited him from engaging in any political activities. Dolan should have been told then that the only way for him to return to the Senate was to request to be released from his active duty assignment. But both Dolan and his supervisors misunderstood the regulation, Lucas said. "It was a mistake, but it wasn't a critical mistake," Lucas said. "It was a violation of the rules, but it was not a deliberate violation of the rules." Had the investigation found intentional wrongdoing, Dolan could have faced a reprimand, forfeiture of pay or court-martial. "I'm pleased that a fair resolution was made in the matter, and that I can complete a tour of duty at Joint Task Force Guantanamo, as well as still serve the people of the Second District," Dolan told the St. Louis Post-Dispatch for its Wednesday editions. A Defense Department regulation and federal law prohibit reservists from carrying out functions of political office when called up for a tour of duty longer than 270 days. Dolan, called up for a period not to exceed 365 days, had contended that the rule took effect only after someone had actually served 270 days - but the investigators determined that it starts on the first day of deployment. Questions about Dolan's actions were raised only after he returned to Missouri for the Sept. 11 vote. Dolan said he was later given "a lawful order to obey the directive," which he said meant either leaving his tour of duty or ceasing all functions of his public post. He said he couldn't put aside his Senate tasks. In the future, officeholders called for duty will be told they should "freeze" all functions of their public job the moment they are mobilized, Dolan said. As correctly interpreted, Army regulations prohibit elected officials in Dolan's situation on active duty from even maintaining an office and paying staff in their absence, Lucas said. * * * The Scotsman: January 7, 2004 PM: ANNOUNCEMENT SOON ON GUANTANAMO BRITONS By Joe Churcher, Chief Parliamentary Reporter, PA News http://www.news.scotsman.com/latest.cfm?id=2381900 An announcement on the future of British detainees being held by the US at Guantanamo Bay may be made "shortly", Prime Minister Tony Blair told MPs today. But he also insisted that information gained from suspected terrorists held at the base on Cuba had proved of "immense importance" in combating terrorism. Nine Britons are among those being held -- most for more than two years after being captured during military action in Afghanistan -- without trial. Labour MP Valerie Davey (Bristol W) told Mr Blair the case for action against Iraq "in defence of human rights" would be strengthened if the situation was tackled. Mr Blair told her: "There are continuing talks on this issue. Not much has happened over the Christmas period for obvious reasons. "But I hope we will be able to tell the House shortly how the issue, particularly of the British detainees, is going to be handled. "I think it is particularly important to emphasise, when there is still rightly a lot of concern about possible terrorist activity, that some of the information we have had out of those detained at Guantanamo Bay has been of immense importance." * * * FindLaw -- January 5, 2004 INTERROGATION, TORTURE, THE CONSTITUTION, AND THE COURTS By Joanne Mariner http://writ.news.findlaw.com/mariner/20040105.html In concluding last month that prisoners held on the Guantanamo naval base in Cuba have the right to challenge their detention in federal court, the U.S. Court of Appeals for the Ninth Circuit focused on the question of Guantanamo's legal status. Much of the court's long and scholarly opinion is taken up by a close examination of the terms of the 1903 lease agreement between the U.S. and Cuba, their meaning in Spanish, their interpretation in analogous treaties, and other fairly technical minutiae. But a few phrases that lie near the end of the majority opinion grab the reader's attention. According to the government's stated position in the case, the detainees have absolutely no legal right to question U.S. actions on Guantanamo. Federal court jurisdiction should be foreclosed, government counsel insisted during oral argument before the Ninth Circuit, even if the plaintiffs were to claim that their captors were committing "acts of torture" on Guantanamo or were "summarily executing the detainees." The government's assertion that torture and summary executions might be carried out without recourse to the law clearly shocked the court. Reminiscent of Argentina's "dirty war" or the Soviet Gulag, the notion of a legal vacuum in which abuses can be freely committed hardly squares with American constitutional traditions. Indeed, the court emphasized, "to our knowledge, prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition." This term, more than two years after the September 11 attacks, the Supreme Court is grappling with some of the most fundamental issues raised by the Bush Administration's response to terrorism. The Court's upcoming rulings will help define the limits of the government's power to detain, interrogate, and -- as the Ninth Circuit's recent opinion suggests -- potentially mistreat prisoners in its custody. These issues are of enormous importance. And how the Supreme Court decides them will be a telling indicator of its commitment to enforcing the rule of law. Guantanamo, Moussaoui, and the Detainees In practical terms, the Ninth Circuit's decision in the Guantanamo case can be viewed as advice to the Supreme Court on how it should rule. In November, the Court already agreed to hear a separate case involving detainees on Guantanamo, one that raises all of the same issues. The Court will, in its upcoming decision, no doubt discuss the arguments set out in the Ninth Circuit's ruling, as well as those set out in a contrary decision issued earlier in 2003 by the U.S. Court of Appeals for the D.C. Circuit. The Court may also, within the next year, decide whether to review the case of Zacarias Moussaoui. Although the U.S. Court of Appeals for the Fourth Circuit has not yet issued a decision in that case, its ruling will be controversial and important whether it favors the government or the defendant. Like the Guantanamo case, the Moussaoui appeal raises critical questions about the government's power to detain and interrogate terrorist suspects in the absence of any legal process or court review. The detainee issue arises in the Moussaoui case because the defendant claims that Al Qaeda leaders in U.S. custody abroad could confirm his lack of involvement in the September 11 plot. According to Moussaoui, these high-ranking captives, among them Khalid Shaikh Muhammad, could offer crucial exculpatory testimony in his defense. While the legal issues overlap to some extent, there is an important factual difference between the detainees under scrutiny in the Moussaoui case and those detained on Guantanamo. Even though the government told the Ninth Circuit that the courts should have no power even to review claims of torture committed on Guantanamo, there is no reason to believe that physical coercion is actually being employed there. None of the detainees who has been released from Guantanamo has made credible claims of serious physical abuse. "Hungry, Frightened, and Tormented" Reports on the treatment of the detainees at issue in the Moussaoui appeal - those possibly held at the CIA interrogation center at Bagram Air Base in Afghanistan, on the island of Diego Garcia, and in "undisclosed locations" in foreign countries - are more worrying. Granted, government secrecy has meant that hard facts about U.S. interrogation techniques are scarce. But anonymous official sources have leaked information to the Washington Post about ill- treatment and coercion, even practices that skirt the boundaries of torture. In an article published in the October 2003 issue of the Atlantic Monthly, titled "The Dark Art of Interrogation," journalist Mark Bowden set out these techniques in detail. Based on his interviews with military and intelligence officials, Bowden described the interrogation of Khalid Sheikh Mohammed in the following terms: "He would most likely have been locked naked in a cell with no trace of daylight. The space would be filled night and day with harsh light and noise, and would be so small that he would be unable to stand upright, to sit comfortably, or to recline fully. He would be kept awake, cold, and probably wet. If he managed to doze, he would be roughly awakened. He would be fed infrequently and irregularly, and then only with thin, tasteless meals." After months of such treatment, a detainee is likely to break. "Isolated, confused, weary, hungry, frightened, and tormented, Sheikh Mohammed would gradually be reduced to a seething collection of simple needs, all of them controlled by his interrogators." The Government's Extreme Position The Ninth Circuit was right to express dismay over the government's claimed power to block judicial review of even the most repugnant physical abuse of its captives. Such a position is, as the court emphasized, "so extreme that it raises the gravest concerns under both American and international law." In the absence of judicial scrutiny, the power to detain prisoners indefinitely can degrade into the power to abuse them physically. It is up to the Supreme Court to set firm limits against such practices. * * * Minneapolis Star Tribune: January 5, 2004 MAN ARRESTED IN MINNEAPOLIS FOR TERRORISM INVESTIGATION FACES MANY POSSIBLE OUTCOMES Pam Louwagie, Star Tribune http://www.startribune.com/stories/1576/4300773.html After a secret arrest in Minneapolis, Mohammed A. Warsame is in the hands of federal authorities in New York, waiting to testify before a federal grand jury in a closed terrorism hearing. What will ultimately happen to the 30-year-old Minneapolis college student is likely to serve as another test of how to balance the government's interest in national security with the individual's interest in personal freedom. If the handling of other material witnesses in terrorism cases since the Sept. 11, 2001, attacks is an indication, the possibilities for Warsame include being released, charged with a crime or kept in prison without access to a lawyer. "Most of us, we don't care if somebody who's connected to Al-Qaida is held as a material witness forever and dies and rots in jail," said Joseph Daly, a law professor at Hamline University School of Law in St. Paul. But people should be concerned about the government's arresting people without having to explain why, he said, because that could extend to anyone. "How do I strike a proper balance between my need for security but also my need for liberty, freedom? . . . I think that's what all Americans are struggling for now," he said. Some also are struggling to find out what happens with those detained. Because of secret arrests and sealed proceedings, the public might never get detailed information about what happens to terrorism-related material witnesses. The government is concerned about keeping information from potential terrorists. Locally, federal prosecutors have declined to acknowledge Warsame's case. Holding for testimony It is unclear what the government wants from Warsame, a Canadian citizen of Somali descent. Authorities quietly arrested, jailed and took him to federal court in Minneapolis in early December before transferring him to New York. As a material witness, Warsame is being held because authorities think he might have information relevant to a grand jury proceeding. Material witnesses are detained rather than subpoenaed because they are considered likely to flee rather than testify. But how long they can be held seems to be in question. Ruth Wedgwood, a former federal prosecutor and international law professor at Johns Hopkins University, said there are limits. Material witnesses can be held as long as a grand jury term, and some terms last as long as 1 1/2 years, she said. "These are serious cases," Wedgwood said, adding that she doesn't think the government has violated anyone's rights. "When I was a prosecutor, you gauge the toughness of your tactics on the seriousness of the case." Other attorneys, however, worry that the government might be treading on civil rights. And because everything is secret, there's no way for watchdogs to check, they say. Fiona Doherty, senior associate of the U.S. law and security program at the Lawyers Committee for Human Rights, said that U.S. law doesn't set a definite time limit for holding material witnesses, a fact that leaves lots of wiggle room. "The big concern is that they're arresting people and detaining them as material witnesses in an effort to essentially get time to interrogate them and then charge them," she said. Other cases The government has said it has detained fewer than 50 material witnesses in connection with terrorism investigations. Several have been charged with crimes. Maher Hawash, a U.S. citizen and computer contractor, was detained as a material witness in March in Oregon and pleaded guilty months later to conspiring to provide services to the Taliban. Others connected to Hawash pleaded guilty to related charges. Osama Awadallah, a California college student, was detained shortly after Sept. 11, 2001, when his phone number was found in a hijacker's car. He was charged later with making false statements about his association with two hijackers. A judge threw out the charges, saying it was unconstitutional to jail him as a material witness for a grand jury investigation, but an appeals court reversed that decision. Awadallah is out on bail. And in another case, Seattle resident James Ujaama was picked up as a material witness in July 2002 and held for about a month before prosecutors charged him with conspiring to support Al-Qaida. He pleaded guilty in April. Warsame's status as a noncitizen could mean that if he were charged with a war crime in the case, he could face a military court, Wedgwood said. That's not what happened to Uzair Paracha, a Pakistani with permanent residency in the United States who was detained in March as a material witness. He was charged four months later in U.S. District Court in Manhattan with conspiring to support Al-Qaida. He has pleaded not guilty and is awaiting trial. Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland School of Law, said material witnesses have been put into highly coercive conditions. "As a practical matter, what has happened is people who are picked up like that end up being interrogated while detained," he said. "And many civil liberties groups feel that, out of coercion, they end up confessing to activities that they never really took part in." In the case of Egyptian student Abdallah Higazy, for instance, authorities detained him after hearing that an aviation radio was found in his Manhattan hotel room overlooking the World Trade Center shortly after the attacks. After initially denying that the radio was his, he later said it was, and he was charged with lying to FBI agents. When the radio's true owner, a pilot, went looking for it later, Higazy was cleared. He filed a lawsuit against the government. In another case, eight Egyptian men were detained as material witnesses shortly after the Sept. 11 attacks on the basis of a tip from one of their wives. Investigators later decided the woman's statements weren't true and released the men. Access key In one highly publicized case, material witness and U.S. citizen Jose Padilla was re-labeled an "enemy combatant" and shipped to a military facility where he was held without access to a lawyer for 18 months. A federal appeals court, however, ruled that the government couldn't do that in Padilla's case. The government contends that such action was warranted because of a November 2001 order by President Bush allowing captives to be detained as "enemy combatants" if they are members of Al-Qaida, if they engaged in or aided terrorism or harbored terrorists or if it's in the interest of the country to hold them during hostilities. Jenny Martinez, a lawyer representing parties who wrote court briefs on behalf of Padilla, said she expects the appeals court ruling will make it more difficult for the government to hold people as enemy combatants. A separate ruling by a federal appeals court in San Francisco also found that more than 600 people detained in a U.S. military base at Guantanamo Bay, Cuba, should have access to lawyers and the U.S. court system. The government argues that because the detainees were arrested overseas on suspicion of terrorism and are being held in a foreign land, they may be detained indefinitely without charges or trial. Because Warsame was picked up on U.S. soil, he isn't a likely candidate for detention at Guantanamo, Greenberger said. Case by case Both Padilla's and the Guantanamo case are likely to go to the Supreme Court, observers said. "I think there has to be more case law on this, and it looks like the case law is going to be coming fairly quickly," Daly said. Until then, legal observers will continue to watch individual cases. "Because so many of these detentions are being held in secret, it's hard to portray an accurate history of the exact circumstances each arrested material witness faces," Greenberger said. [ The Associated Press contributed to this report. Pam Louwagie is at plouwagie@startribune.com ] * * * Information Clearing House: TAKE NO PRISONERS Another proud moment in U.S. Military History. U.S. Marines execute an Iraqi to the cheers of fellow marines http://www.informationclearinghouse.info/article5365.htm * * * Los Angeles Times: January 4, 2004 IN BUSH'S AMERICA, RULES OF WAR TRUMP CIVIL LAW * Applying battlefield justice to the murky struggle against terrorism is dangerous -- and possibly illegal. By Kenneth Roth http://www.hrw.org/english/docs/2004/01/04/usdom6910.htm http://www.latimes.com/news/printedition/opinion/ la-op-roth4jan04,1,4061271.story NEW YORK -- Is the Bush administration's "war on terrorism" a real war, and thus governed by the rules of armed conflict? Or is it a law-enforcement effort governed by traditional rules of criminal justice? Two recent rulings by federal appeals courts offered answers to these questions. One involved Jose Padilla, a U.S. citizen who flew from Pakistan to Chicago in May 2002 allegedly to scout targets for a radioactive "dirty" bomb. Rather than prosecute him, President Bush declared him an "enemy combatant" and claimed that the government had the right to hold Padilla without charge or trial until the end of the "war" against terrorism. The U.S. Court of Appeals for the 2nd Circuit, based in New York, ruled that, absent explicit congressional authorization, the president has no such power. The second case involved several prisoners at the U.S. Naval Base at Guantanamo Bay, Cuba, who sought access to U.S. courts to challenge their detention. The Bush administration claimed that because Guantanamo is leased from Cuba, it should be considered sovereign Cuban territory and thus outside the reach of U.S. courts. The U.S. Court of Appeals for the 9th Circuit, based in San Francisco, rejected this view of Guantanamo, ruling that because the U.S. exercises total control over the base, it is not outside the jurisdiction of U.S. courts. These kinds of issues stem from the administration's view that the rules for traditional armed conflict should apply to the war on terrorism. Even though, as the president said, "Our war on terror will be much broader than the battlefields and beachheads of the past. The war will be fought wherever terrorists hide, or run or plan." The president wasn't waxing metaphorical here. To him, the war on terrorism is quite literal, and that is worrisome because governmental powers are much greater in wartime. In ordinary times, governments are bound by strict rules of law enforcement. For example, police can use lethal force only when facing an imminent threat of death or serious bodily injury. Once a suspect is detained, he must be charged and tried. In times of war, these rules are supplemented by the more permissive ones of armed conflict. Under "war rules," an enemy combatant can be shot without warning (unless he is incapacitated, in custody or trying to surrender), regardless of any imminent threat. If a combatant is captured, he can be detained without charge or trial until the end of the conflict. The existence of war, as in Afghanistan and Iraq, is usually indisputable. But when the scope of war is contested, as in the war on terrorism, there is little law to determine when one set of rules should apply instead of the other. However, the consequences of invoking war rules should make us reluctant to apply them beyond traditional battlefields. Padilla's case shows us why. If he were an enemy combatant, as the Bush administration claims, he could have been shot as he stepped off his plane at O'Hare Airport, regardless of any immediate danger he posed. That is what it means to be a combatant in time of war. But summarily killing Padilla was never a real option for the administration, in part because of the public outrage such an action would have sparked. So why, if Padilla is not an enemy combatant for the purpose of being shot, is he an enemy combatant for the purpose of being detained indefinitely? The Guantanamo case presents a related set of problems. Little information is available about the 660 men and boys currently held on the base, but they seem to include several types of detainees, each with different legal claims. Some were probably seized by mistake, and they should be released immediately. Others were Taliban fighters or foreign volunteers integrated into the Taliban's military. As regular members of Afghanistan's armed forces, they should have been automatically granted prisoner-of-war status under the Geneva Convention. That would have entitled them to repatriation when the war with the Afghan government ended a year and a half ago. As for alleged Al Qaeda members captured during the war, they are at least entitled, under the Geneva Convention, to military hearings to determine their status. They would probably fail the more rigorous test for prisoner-of-war status as it applies to irregular forces. Thus, they could be prosecuted for taking up arms against the United States as well as for plotting acts of terrorism. But the Bush administration makes the radical claim that it should be able to detain these men until the end of the "war" against terrorism, whenever that is -- without a trial or a hearing to contest their detention. Finally, there is the growing number of Al Qaeda suspects picked up far from any recognized battlefield and held at Guantanamo. For example, in October 2001 the Bush administration secured the arrest of six Algerian men in Bosnia. After a three-month investigation, Bosnia's highest court ordered their release for lack of evidence. The administration then pressured the Bosnian government to hand them over anyway. The six now reside at the naval base. Guantanamo thus represents a dangerous pattern of U.S. conduct. When the administration doesn't like the outcome of complying with normal law enforcement rules, it switches to war rules. And even then, it applies only war rules it finds convenient -- not, for example, those governing prisoners of war. Errors, common enough in ordinary criminal investigations, are all the more likely when the government relies on the murky intelligence that drives many terrorist investigations. The secrecy of these investigations, with little opportunity for public scrutiny, only compounds the problem. If law enforcement rules are used, a mistaken arrest can be rectified at a public trial. But if war rules apply, a suspect could be detained for life or even killed without the government ever being obliged to prove his guilt. Terrorism is indeed a serious threat. But the Bush administration's facile and inconsistent invocation of war rules jeopardizes some of our most basic rights. It is high time that the courts stepped in. [ Kenneth Roth is executive director of Human Rights Watch. ] * * * San Francisco Chronicle: January 4, 2004 TORTURE BY PROXY How immigration threw a traveler to the wolves Christopher H. Pyle http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2004/01/04/INGPQ40MET1.DTL On Sept. 26, 2002, U.S. immigration officials seized a Syrian-born Canadian at Kennedy International Airport, because his name had come up on an international watch list for possible terrorists. What happened next is chilling. Maher Arar was about to change planes on his way home to Canada after visiting his wife's family in Tunisia when he was pulled aside for questioning. He was not a terrorist. He had no terrorist connections, but his name was on the list, so he was detained for questioning. Not ordinary, polite questioning, but abusive, insulting, degrading questioning by the immigration service, the FBI and the New York City Police Department. He asked for a lawyer and was told he could not have one. He asked to call his family, but phone calls were not permitted. Instead, he was clapped into shackles and, for several days, made to "disappear." His family was frantic. Finally, he was allowed to make a call. His government expected that Arar's right of safe passage under its passport would be respected. But it wasn't. Arar denied any connection to terrorists. He was not accused of any crimes, but U.S. agents wanted him questioned further by someone whose methods might be more persuasive than theirs. So, they put Arar on a private plane and flew him to Washington, D.C. There, a new team, presumably from the CIA, took over and delivered him, by way of Jordan, to Syrian interrogators. This covert operation was legal, our Justice Department later claimed, because Arar is also a citizen of Syria by birth. The fact that he was a Canadian traveling on a Canadian passport, with a wife, two children and job in Canada, and had not lived in Syria for 16 years, was ignored. The Justice Department wanted him to be questioned by Syrian military intelligence, whose interrogation methods our government has repeatedly condemned. The Syrians locked Arar in an underground cell the size of a grave: 3 feet wide, 6 feet long, 7 feet high. Then they questioned him, under torture, repeatedly, for 10 months. Finally, when it was obvious that their prisoner had no terrorist ties, they let him go, 40 pounds lighter, with a pronounced limp and chronic nightmares. Why was Arar on our government's watch list? Because "multiple international intelligence agencies" had linked him to terrorist groups. How many agencies? Two. What had they reported? Not much. The Syrians believed that Arar might be a member of the Muslim Brotherhood. Why? Because a cousin of his mother's had been, nine years earlier, long after Arar moved to Canada. The Royal Canadian Mounted Police reported that the lease on Arar's apartment had been witnessed by a Syrian- born Canadian who was believed to know an Egyptian Canadian whose brother was allegedly mentioned in an al Qaeda document. That's it. That's all they had: guilt by the most remote of computer- generated associations. But, according to Attorney General John Ashcroft, that was more than enough to justify Arar's delivery to Syria's torturers. Besides, Ashcroft added, the torturers had expressly promised that they would not torture him. Our intelligence agencies have a name for this torture-by-proxy. They call it "extraordinary rendition." As one intelligence official explained: "We don't kick the s -- out of them. We send them to other countries so they can kick the s -- out of them." This secret program for torturing suspects has been authorized, if that is the right word for it, by a secret presidential finding. Where the president gets the authority to have anyone tortured has never been explained. It is time someone asked. What our government did to Maher Arar is worse than anything the British did to our Colonial forefathers. It was worse than anything J. Edgar Hoover did to alleged Communists, civil rights workers and anti-war activists during his long program of dirty tricks. According to the Bush administration, we are at "war" with al Qaeda. If so, then delivering a suspect to torturers is a war crime and should be prosecuted as such. But first, we need to know who was responsible, and that will not be easy -- unless there is a firestorm of protest. Isn't it time to condemn torture by proxy and demand prosecution of the persons responsible? Isn't it time to question how these watch lists are assembled and used, before more of us fall victim to secret detentions and brutal interrogations based on guilt by computerized associations? Christopher Pyle teaches constitutional law and civil liberties at Mount Holyoke College. * * * Media Monitors Network: January 4, 2004 TERROR ALERTS: CANADIAN MUSLIMS LOSING RIGHTS AS US EXPLOITS THE POLITICAL UTILITY OF FEAR by Tahir Mahmoud http://usa.mediamonitors.net/content/view/full/3541/ -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- "Canada is turning into another Colombia, where defence lawyers either disappear or are killed. He could add Egypt, Tunisia and a number of other pro-Western countries to the list as well." -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- Having discovered the political utility of fear, US officials miss no opportunity to invoke the dreaded terror alert, thus keeping the American public scared enough to have no time to think about the real problems confronting them. Another warning against "an imminent terrorist attack" was sounded on December 22, and Air France forced by US intelligence to cancel flights from Paris to Los Angeles over the Christmas holiday period. The flights were later resumed with Air France and French authorities saying they had neither received nor found any evidence of a terrorist threat. It is hard to escape the conclusion that the alerts exist only to persuade the American people of the need for the extreme policies being pushed by George W. Bush and his team of hard-line right wing conservatives. Since September 2001, and to combat the alleged terrorist threat, hundreds of people of Muslim and Arab descent have been rounded up in the US and incarcerated without charge or access to lawyers. Two challenges mounted in two separate courts, one in San Francisco and the other in New York, on December 18 rejected the US government's right to hold people without charge or trial. The courts also challenged the government's right to hold people indefinitely in Guantanamo Bay, Cuba, where detainees are being tortured, according to admissions by US military personnel. While the US government got a setback in its campaign to undermine civil liberties, Muslims in Canada continue to suffer from American paranoia. Canadian citizens have been arrested in the US and Afghanistan and some of them deported to Syria while others remain incarcerated in Guantanamo Bay, beyond the reach of any law. In fact, after months of denial, the Canadian government made an astonishing admission on December 22: its own intelligence agencies, the Canadian Security and Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP), have given the US information on one of its own citizens, Maher Arar, who is of Syrian origin. Arar was arrested on September 26, 2002, by US customs agents in New York as he changed planes on his way from Tunis to Ottawa. The Americans could not hold him in the US, there being no charges against him; instead, he was shipped to Syria via Jordan. Arar spent nearly a year in a Syrian jail, suffering both physical and mental torture. Thanks to the efforts of Mona Mazigh, his indefatiguable wife, he was eventually released last September. The Syrians were apparently trying to appease the Americans by showing them that they were tough on "terrorists"; the only problem was that Arar is not a terrorist. Despite media allegations that he had visited Afghanistan (as if that were a crime), and had some connection with al-Qa'ida, these all turned out to be false, yet nobody apologised to him. The Muslim community has demanded an inquiry into his case. Jean Chretien, the former prime minister, brushed aside the demand; Paul Martin, the new prime minister, who was sworn in on December 12, first said he would hold an inquiry, but in a television interview on December 23 seemed to back off. He said that he would "get to the bottom" of the matter without compromising Canadian security. This has raised concerns, because without a full inquiry it will never be known what role the two Canadian intelligence agencies played in the illegal arrest, deportation and torture of a Canadian citizen. And what was the reason for the Canadian agencies' alleging wrongdoing against a Canadian citizen in the first place? There are also other Canadian citizens in Syrian and Egyptian jails. Since September 2001 Canadians of Muslim or Arab descent have become easy targets. They are not only humiliated at the US border (the Canadian government says it cannot do anything about the behaviour of US officials), but it appears not to care much how its citizens are mistreated even within Canada. Take the case of the Khadr brothers, 20-year-old Abdul Rahman and 16-year-old Omar. Both were arrested by the Americans in Afghanistan, where their father Ahmed Said Khadr had been involved in relief work since the Soviet occupation. While the whereabouts of Khadr senior are unknown, some reports are that he was killed last October when the Pakistan army raided Wana (South Waziristan); others claim that he is running from allegations that he is an al-Qa'ida "financier". The two brothers were taken to Guantanamo Bay; Abdul Rahman was released in October without being charged with any offence, but instead of sending him to Canada the Americans dumped him in Afghanistan without money or documents. Abdul Rahman sought help from the Canadian high commission in Islamabad, but he was rebuffed. At this stage his grandmother revealed at a news conference (organised by Rocco Galati, a human-rights lawyer, in Toronto) that her grandson was getting no help from Canadian missions abroad, and that the Canadian government had abandoned her grandson, who was by now in Sarajevo. Under the glare of media publicity, the Canadian government denied any knowledge of Abdul Rahman's having approached them, but said that he would be assisted if he contacted any Canadian mission. The Canadian embassy in Sarajevo then gave him a temporary travel document and put him on a flight to Toronto. Abdul Rahman spoke at a press conference in Toronto on December 1, which had been arranged by his lawyer. Three days later Rocco Galati received a chilling message on his answering machine, threatening his life because he had dared defend a "f -- -- -- - terrorist." Galati immediately contacted the police and called a press conference about the death threats against him; the police refused to provide him protection. Fearing for his life, Galati resigned from all cases involving national security and terrorism. Until then, he had taken briefs for several Arabs and Muslims on similar charges. He played the message during the December 4 press conference: "Well, Mr. Galati. What's this I hear about you working with the terrorist now, helping to get that punk terrorist Khadr off. You a dead wop," the message was. Galati says that he believes the call is a serious warning that he should give up all national security cases. Toronto police traced the call to a phone-booth in Mississauga, a suburb outside Toronto. Far from appreciating the gravity of the situation, the Toronto Globe and Mail ridiculed Galati's statements editorially on December 5: "Toronto lawyer Rocco Galati has begun taking his own hyperbole a little too seriously. He announced yesterday that he has received an 'institutional' death threat, presumably from the CIA or CSIS, and that he is therefore withdrawing from the half-dozen or so cases in which he represents alleged terrorists before the courts." Galati had also represented Mahmoud Jaballah, a teacher at the Salahuddin Mosque in Toronto, who is accused of being a member of the Egyptian jihad group that is allegedly linked to al-Qa'ida. Galati says that he had heard the man's voice twice before, in similar recorded telephone threats uttered against another former client who later disappeared. This former client was Delmart Edward Vreeland, a US naval intelligence officer who had been held in Toronto, allegedly on charges of credit-card fraud, after he arrived from Moscow in 2001. He claimed to know something about the mysterious death of Marc Bastien, an information-systems handler at the Canadian embassy in Moscow. Vreeland claimed that Bastien had been poisoned by the Russians, but his jailers dismissed his statements until Line Duchesne, the coroner in Quebec, concluded that Bastien had indeed been poisoned. There was also something else that Vreeland had said or written, that was far more explosive and significant. In August 2001 he gave his jailers a sealed envelope with the request that it be handed over to his lawyers. They did not do so until September 14, 2001. In that letter Vreeland had stated that an attack would occur on the World Trade Centre in New York, on the Pentagon and on a number of other US landmarks, on September 11, 2001; the letter further stated that the US government was fully aware of the impending attacks. Vreeland's letter is part of the court record in Toronto. His claim that he was a naval intelligence officer, however, was rubbished by the US government, which demanded his extradiction to the US on credit-card charges. Vreeland's other lawyer, Paul Slansky, a partner of Galati's, had established through a speaker phone to his office in the US from the Toronto courtroom, that Vreeland was indeed a naval officer. But eight months later, while on bail awaiting an extradition hearing, Vreeland disappeared. Slansky told the court that he had gone to Vreeland's apartment to pick him up to bring him for the court hearing, but found it ransacked, with key evidence related to his client's claims against the US government (particularly that government's prior knowledge of the impending attacks) missing. The lawyer is convinced that Vreeland was "killed, kidnapped or harmed" because he had evidence that the US government had prior knowledge of the September 2001 attacks. Both Galati and Slansky are now saying similar threats are being made against them. They say they recognize the voice of the man who said he wants to kill Galati; a similar threat was made against Vreeland, and he disappeared. Galati is concerned that, despite mounting evidence, neither the police nor the media in Canada are taking his claims seriously. The fact that Canadian intelligence agencies have been implicated in fingering Canadian citizens, and sending them to torture in foreign lands, while the Canadian government refuses to inquire into these misdeeds, is cause for concern. The close collaboration between Canadian and US intelligence agencies in targeting Muslims is also a matter of grave concern. Living close to the US means living in perpetual threat of US heavy-handedness. It is one thing for the Canadian government to advise its citizens not to travel to the US if they fear being arrested, and quite another for Canadian intelligence agencies to collaborate with the US against Canadian citizens. One final, equally ironic note: when the Law Society of Canada heard about Galati abandoning his clients, it began an inquiry against him. He may lose his license to practise law. However, the Law Society has not deemed it fit to ask why the police are refusing to provide protection to one of its members. As Galati says, Canada is turning into another Colombia, where defence lawyers either disappear or are killed. He could add Egypt, Tunisia and a number of other pro-Western countries to the list as well. * * * The Village Voice: January 3, 2003 GEORGE W. BUSH'S CONSTITUTION 'Does It Take a Lifetime to Question a Man?' By Nat Hentoff http://villagevoice.com/issues/0302/hentoff.php "It is hard to imagine that America would look kindly on a foreign government that demanded the right to hold some of its own citizens in prison, incommunicado, denying them access to legal assistance for as long as it thought necessary, without ever charging them with a crime." "Nevertheless, that is the position that George Bush's administration has tried to defend in the courts with regard to American citizens whom it has deemed to be 'enemy combatants.'" -- The Economist, London, December 14, 2002 -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- The imprisonment of "enemy combatant" Yaser Esam Hamdi in a naval brig in the United States is not a matter of concern to most Americans, since they do not know of Mr. Hamdi's isolation from the Bill of Rights, and might not care if they did. But the Supreme Court will ultimately decide whether George W. Bush's Constitution will replace -- in significant parts -- the Constitution that most Americans are also not familiar with. When Mr. Hamdi's case -- though not Mr. Hamdi personally -- came before federal judge Robert Doumar in Norfolk, Virginia, that veteran jurist, appointed by Ronald Reagan, was astonished at the sweep of the government's declaration that the president had the right to personally put Hamdi in the brig and strip him of all his constitutional rights after claiming that he was an "enemy combatant." It is also the government's contention that the courts have minimal jurisdiction over the commander in chief as he locks up Americans he calls "enemy combatants" during our war against terrorism. Nonetheless, Judge Doumar insisted that the government explain itself, and was handed a two-page sworn document, written by Michael Mobbs, a Defense Department official, justifying the president's totally depriving Hamdi of his freedom indefinitely -- without his being charged with any crime. Before getting to the judge's angry reaction to the Mobbs statement, it's necessary to note that just about every reference to Hamdi in the media has said -- as printed in the November 1 New York Law Journal -- that "Hamdi was seized while fighting with the Taliban in Afghanistan." How do we know that to be true? Don't you trust your source -- your government? As Katherine Seelye wrote in The New York Times (August 13, 2001) of Judge Doumar's response to the official Mobbs document giving the government's evidence: "He made very clear that he found the statement lacking in nearly every respect." A fuller account of what Judge Doumar said is in an extraordinarily valuable report by the Lawyers Committee for Human Rights: A Year of Loss: Reexamining Civil Liberties Since September 11. Released last September 5, the report quotes more of what Judge Doumar indignantly said to the government prosecutor who had handed him the Mobbs document: "I'm challenging everything in the Mobbs declaration. If you think I don't understand the utilization of words, you are sadly mistaken." Mr. Mobbs had declared that Hamdi was "affiliated with a Taliban unit and received weapons training." Bolstering the government's case -- or so it seemed -- were photographs in some of the media of Hamdi carrying a weapon. So what was Judge Doumar's beef? The Mobbs document, Judge Doumar said bluntly, "makes no effort to explain what 'affiliated' means nor under what criteria this 'affiliation' justified Hamdi's classification as an enemy combatant. The declaration is silent as to what level of 'affiliation' is necessary to warrant enemy combatant status. . . . "It does not say where or by whom he received weapons training or the nature and content thereof. Indeed, a close inspection of the declaration reveals that [it] * never claims that Hamdi was fighting for the Taliban, nor that he was a member of the Taliban *. Without access to the screening criteria actually used by the government in its classification decision, this Court is unable to determine whether the government has paid adequate consideration to due process rights to which Hamdi is entitled under his present detention." (Emphasis added.) Think about that. This American citizen was officially stripped of all his constitutional rights and this flimsy two-page document is the government's explanation before the court. If the government had more information, why didn't it show that evidence in camera (to the judge in his private chambers)? I doubt that the relatively few Americans -- not counting constitutional lawyers -- who have been following this crucial case know how thoroughly Judge Doumar discredited the government's explanation for its indefinite punishment -- without charges -- of Hamdi. Another point, this one entirely ignored by the media, is in an amicus brief to the Fourth Circuit Court of Appeals by the National Association of Criminal Defense Lawyers: "[The government claims] that Mr. Hamdi 'surrendered' not to U.S. forces, but to a group of counter-insurgent Afghanis popularly called the 'Northern Alliance.' However, [the government then proceeds] to repeatedly claim that Hamdi was 'captured' -- an important distinction when evaluating his legal status vis-à- vis the United States and under international law. One who surrenders before engaging in 'combat' can hardly be classified as a 'combatant' logically, much less legally." In addition to Mr. Mobbs's pieces of paper, the government prosecutor also told Judge Doumar that the Defense Department had to hold Hamdi for interrogation. And since the war on terrorism has no defined end in sight, he must be "detained" indefinitely. Said Judge Doumar: "How long does it take to question a man? A year? Two years? Ten years? A lifetime? How long?" Under this intensive fire, the prosecutor, Gregory G. Garre, an assistant to Solicitor General Theodore Olson, had only this response: "The present detention is lawful." As Judge Doumar said after he had denounced the two-page declaration: "So the Constitution doesn't apply to Mr. Hamdi?" I will follow this case through the Fourth Circuit Court of Appeals and then, I expect, to the United States Supreme Court. Those nine men and women will decide whether the essential liberties in the Framers' Constitution have been removed by George W. Bush. It's a pity the Democratic Party cares much less about civil liberties than about Bush's tax cuts. * * * Time: January 2, 2004 THE CIA AGENT FLAP: FBI ASKS FOR REPORTERS TO TALK Investigators are pressing Administration officials to let journalists tell whatever they know about the leak of a CIA agent's identity By John F. Dickerson And Viveca Novak http://www.time.com/time/nation/article/0,8599,570189,00.html FBI investigators looking into the criminal leak of a CIA agent's identity have asked Bush Administration officials including senior political adviser Karl Rove to release reporters from any confidentiality agreements regarding conversations about the agent. If signed, the single-page requests made over the last week would give investigators new ammunition for questioning reporters who have so far, according to those familiar with the case, not disclosed the names of administration officials who divulged that Valerie Plame, wife of former ambassador Joe Wilson, worked for the CIA. While irregular, the move is not unprecedented. Various officials were told from the start that such a request might be made. Along with the recusal this week of Attorney General John Ashcroft, this suggests that investigators are ready to enter the next stage of the probe. U.S. Attorney Patrick Fitzgerald has been named special prosecutor to oversee the inquiry. The FBI has already extensively re-interviewed some White House officials using emails and phone logs from their search to press for the identity of the leaker. "They are taking this very seriously," says one close to the case. Lucy Dalglish, executive director of the Reporters' Committee for Freedom of the Press, says asking people who are in the universe of possible suspects to sign such a document is unusual, though not unheard of. "From the prosecutors' point of view, it is likely a precursor to subpoenaing journalists to testify before a grand jury, and then asking a judge to hold them in contempt if they refuse to do so," she noted. It's plain that White House officials are under some pressure to sign the documents. "They can't refuse," said one individual who's familiar with the case. "The worst thing to be accused of here is not cooperating with the investigation." But reporters are not likely to feel the same pressure. Journalists rarely divulge the identities of confidential sources even when threatened with contempt citations so the releases may make little difference. Still, in a post-9/11 world, a case involving the disclosure of a covert agent's identity could be taken very seriously by a judge, who would have the power to jail a member of the press for refusing to cooperate with a grand jury. For an administration that at times holds a very dim view of the press, the reputation of the Bush White House and the future of some of its officials may hang on the profession's ethical standards. * * * * * * * * *