MISCELLANEOUS NEWS REPORTS * 2004.04.01 to date misc_digest_2004_4.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/ Baltimore Sun: http://www.sunspot.net/ Boston Globe: http://www.boston.com/news/globe/ Chicago Tribune: http://www.chicagotribune.com/ Dawn (Islamabad): http://www.dawn.com/ Hartford Courant: http://www.ctnow.com/news/ Los Angeles Times: http://www.latimes.com/ 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 Age (Melbourne): http://www.theage.com.au/ The Guardian (UK): http://www.guardian.co.uk/guardian/ The Independent (UK): http://www.independent.co.uk/ The Mirror (UK): http://www.mirror.co.uk/ The Observer (UK): http://www.observer.co.uk/ The Scotsman (Edinburgh): http://thescotsman.scotsman.com/ The Telegraph (UK): http://www.telegraph.co.uk/ Toronto Globe and Mail: http://www.theglobeandmail.com/ ================================================================================ The Guardian (UK): April 30, 2004 US MILITARY IN TORTURE SCANDAL Use of private contractors in Iraqi jail interrogations highlighted by inquiry into abuse of prisoners By Julian Borger, The Guardian http://www.guardian.co.uk/Iraq/Story/0,2763,1206725,00.html WASHINGTON - Graphic photographs showing the torture and sexual abuse of Iraqi prisoners in a US-run prison outside Baghdad emerged yesterday from a military inquiry which has left six soldiers facing a possible court martial and a general under investigation. The scandal has also brought to light the growing and largely unregulated role of private contractors in the interrogation of detainees. According to lawyers for some of the soldiers, they claimed to be acting in part under the instruction of mercenary interrogators hired by the Pentagon. US military investigators discovered the photographs, which include images of a hooded prisoner with wires fixed to his body, and nude inmates piled in a human pyramid. The pictures, which were obtained by an American TV network, also show a dog attacking a prisoner and other inmates being forced to simulate sex with each other. It is thought the abuses took place in November and December last year. The pictures from Abu Ghraib prison have shocked the US army. Brigadier General Mark Kimmitt, deputy director of operations for the US military in Iraq, expressed his embarrassment and regret for what had happened. He told the CBS current affairs programme 60 Minutes II: "If we can't hold ourselves up as an example of how to treat people with dignity and respect, we can't ask that other nations do that to our soldiers." Gen Kimmitt said the investigation began in January when an American soldier reported the abuse and turned over evidence that included photographs. "That soldier said: 'There are some things going on here that I can't live with'." The inquiry had centred on the 800th Brigade which is based in Uniondale, New York. The US army confirmed that the general in charge of Abu Ghraib jail is facing disciplinary measures and that six low-ranking soldiers have been charged with abusing and sexually humiliating detainees. Lawyers for the soldiers argue they are being made scapegoats for a rogue military prison system in which mercenaries give orders without legal accountability. A military report into the Abu Ghraib case - parts of which were made available to the Guardian - makes it clear that private contractors were supervising interrogations in the prison, which was notorious for torture and executions under Saddam Hussein. One civilian contractor was accused of raping a young, male prisoner but has not been charged because military law has no jurisdiction over him. Hired guns from a wide array of private security firms are playing a central role in the US-led occupation of Iraq. The killing of four private contractors in Falluja on March 31 led to the current siege of the city. But this is the first time the privatisation of interrogation and intelligence- gathering has come to light. The military investigation names two US contractors, CACI International Inc and the Titan Corporation, for their involvement in Abu Ghraib. Titan, based in San Diego, describes itself as a "a leading provider of comprehensive information and communications products, solutions and services for national security". CACI, which has headquarters in Virginia, claims on its website to "help America's intelligence community collect, analyse and share global in formation in the war on terrorism". Neither responded to calls for comment yesterday. According to the military report on Abu Ghraib, both played an important role at the prison. At one point, the investigators say: "A CACI instructor was terminated because he allowed and/or instructed MPs who were not trained in interrogation techniques to facilitate interrogations by setting conditions which were neither authorised [nor] in accordance with applicable regulations/policy." Colonel Jill Morgenthaler, speaking for central command, told the Guardian: "One contractor was originally included with six soldiers, accused for his treatment of the prisoners, but we had no jurisdiction over him. It was left up to the contractor on how to deal with him." She did not specify the accusation facing the contractor, but according to several sources with detailed knowledge of the case, he raped an Iraqi inmate in his mid-teens. Col Morgenthaler said the charges against the six soldiers included "indecent acts, for ordering detainees to publicly masturbate; maltreatment, for non- physical abuse, piling inmates into nude pyramids and taking pictures of them nude; battery, for shoving and stepping on detainees; dereliction of duty; and conspiracy to maltreat detainees". One of the soldiers, Staff Sgt Chip Frederick is accused of posing in a photograph sitting on top of a detainee, committing an indecent act and with assault for striking detainees - and ordering detainees to strike each other. He told CBS: "We had no support, no training whatsoever. And I kept asking my chain of command for certain things ... like rules and regulations." His lawyer, Gary Myers, told the Guardian that Sgt Frederick had not had the opportunity to read the Geneva Conventions before being put on guard duty, a task he was not trained to perform. Mr Myers said the role of the private contractors in Abu Ghraib are central to the case. "We know that CACI and Titan corporations have provided interrogators and that they have in fact conducted interrogations on behalf of the US and have interacted the military police guards at the prison," he said. "I think it creates a laissez faire environment that is completely inappropriate. If these individuals engaged in crimes against an Iraq national - who has jurisdiction over such a crime?" "It's insanity," said Robert Baer, a former CIA agent, who has examined the case, and is concerned about the private contractors' free-ranging role. "These are rank amateurs and there is no legally binding law on these guys as far as I could tell. Why did they let them in the prison?" The Pentagon had no comment yesterday on the role of contractors at Abu Ghraib, saying that an inquiry was still in progress. * * * Vive Le Canada: April 29, 2004 TORTURE, THE AMERICAN WAY by Reverend Blair http://www.vivelecanada.ca/article.php?story=20040427193758704 "We don't torture people in America. And people who make that claim just don't know anything about our country." George Bush, speaking in Australia, October 18, 2003. In September 2002, Maher Arar was detained by US authorities in New York. Arar, a computer engineer in Ottawa was returning to Canada from a vacation in Tunisia, and was on a stopover in New York. The US flew Arar to Jordan and then took to Syria. In Syria, Arar says, he was held in a small cell in abhorrent conditions and tortured. Authorities in both the US and Canada were involved in the Arar investigation, although it now appears that he has no links to terrorist groups. According to the Village Voice, Syrian authorities say they had no interest in Arar, but took him as a show of goodwill toward the US. Law suits are pending in the United States and Canada. The United States government and the Canadian Government are both signatories to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That convention clearly states, in article 3: 1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. Officials in both the US and Canada were fully aware of Syria's reputation for subjecting prisoners to torture. Arar was the victim of the growing paranoia promoted by the secretive and repressive war on terror, but he was also a victim of the long term practice of some governments of turning a blind eye to torture in some states if torture suits their purposes. When the US began shipping prisoners to Guantanamo Bay to be held indefinitely away from the prying eyes of the world, talk of torture circulated. A December 26, 2002 Washington Post report pointed out that not only prisoners being forced to stand or kneel in uncomfortable positions for hours at the CIA interrogation centre un Bagram, but were being subjected to such interrogation techniques as sleep deprivation and being kept under bright lights for twenty four hour periods. In the same report the Washington Post also said that prisoners who would not cooperate were sometimes "rendered" to other states for further interrogation. In other words, if the milder forms of torture being used by the US aren't getting results, they send the person to be interrogated by a country that will not hesitate to use much harsher forms of torture. It is kind of like outsourcing jobs, but more extreme. Uzbekistan, Pakistan, Egypt, Jordan and Morocco are some of the places where the US has sent prisoners for further interrogation. These are all countries known to use torture during interrogation and as punishment. The US uses other countries so it can maintain the appearance of abiding by international laws and agreements. In reality this no different than performing the torture themselves, but they hide behind the distinction. The US seems much less concerned about even bothering to maintain that illusion under the Bush regime. What about those prisoners in Bagram that were being subjected to techniques such as sleep deprivation and being forced to maintain uncomfortable positions for hours on end? US authorities maintain that such techniques are not torture. They refer to them as "stress and duress" and insist that no torture is going on. Amnesty International, Human Rights Watch, and the Committee Against Torture feel differently. According to Amnesty International, "The Committee against Torture, established to oversee implementation of the treaty, has expressly held that restraining detainees in very painful positions, hooding, threats, and prolonged sleep deprivation are methods of interrogation which violate the prohibition on torture and cruel, inhuman or degrading treatment." In other words the US is torturing people by using techniques that they admit to. Then there are the things the US isn't admitting to. Two prisoners died in Bagram in December of 2002. The autopsy reports listed homicide as the cause of death. Blunt force trauma was noted in both cases. It appears that the men died from being beaten while in custody. That is torture. The men died as a result of it. The incidents continue. We've all seen the footage of prisoners in Iraq; sacks on their heads, arms tied behind them; being made to stand in the sun for hours. Rumours of torture to prisoners being held by the US military, and sometimes private contractors working for the US military, are persistent. Usually the rumours are of the "stress and duress" variety of torture but not always. The apologists say that torture is sometimes necessary to obtain information. That fallacy is shown in an episode of the television series Seven. A man is being tortured, he gives some pertinent information. The torturer passes the information on to an American sitting in the next room, apparently to avoid being involved in the actual torture. The bomb is found and everybody lives happily ever after. Seven is just a television drama, but that scenario is the basic argument for torturing prisoners. It doesn't hold up to scrutiny because a subject of torture will often say almost anything to make the torture stop. The information is unreliable at best, dangerously wrong at worst. What if the subject of torture didn't know where the bomb was? What if he lied? Time and resources would be wasted, nothing having been accomplished except the torture of a prisoner...a crime. The bomb would still go off and there would be no happily ever after. The excuses given to justify torture are as fictional as the television show Seven. We have real-world examples of the reliability of information obtained from torture victims. Maher Arar signed a confession when he was being tortured in Syria. He admitted to being a terrorist and having spent time at al Qaida training camps. He later recanted, saying the cofession was a result of torture. Even the Syrians didn't believe the confession. They knew it was the result of the torture. Torture continues though. It does so in spite of international law and signed conventions. It does so in spite of the fact that even the torturers do not trust any information gained. In July of 2003, CBS News reported the story of Khraisan al-Aballi. al-Aballi's house was raided by US forces one night. His brother was wounded in the attack and Khraisan, his eighty year old father, and his wounded brother were taken into custody. The father and Khraisan were taken to the detention centre at the Bagdad where Khraisan says he was stripped naked and kept awake for over a week. He was made to stand or kneel almost the entire time, with a bag over his head. He was finally released after eight days. In February of 2004 Electronic Iraq released a story written by Jim Loney, a member of the Christian Peacemaker Teams. Loney interviewed two Iraqi men who had been taken captive by US forces after an explosion near their house. Both men reported being hooded, beaten, refused food, having their hands tied behind them, being kept awake, and being forced to maintain uncomfortable physical positions for extended periods. This treatment lasted for days while the men were interrogated. They knew no details of the explosion, both are farmers and drivers for government departments. Their detention and torture was arbitrary, a fishing trip based on nothing more than where they lived and attended Mosque. Such stories are becoming more and more common as the occupation of Iraq drags on and alleged war on terror expands. US military and intelligence agencies are becoming increasingly bold in their defiance of international and domestic laws. They pay no heed to conventions they have signed and refuse to answer for their crimes. The US, while claiming to be fighting injustice and repression, is committing acts of injustice and repression on a daily basis. They are also, undoubtedly, creating new terrorists on a daily basis by doing so. In the end they will learn the hard lesson learned by all nations who seek to dominate others, that you cannot rule by force. In the meantime they are making the world less safe for all of us. And Canada should have no part in it. Related links: http://www.cbc.ca/news/background/arar/ http://www.unhchr.ch/html/menu3/b/h_cat39.htm http://www.hrw.org/press/2002/12/us1227.htm http://www.cbsnews.com/stories/2003/07/20/iraq/main564095.shtml http://electroniciraq.net/news/1367.shtml [ Reverend Blair was raised in Saskatchewan and currently lives in Winnipeg, Manitoba. He comes from a long line of social activists and cried on Tommy Douglas before his first birthday. His column appears biweekly on Vive le Canada. ] * * * The Atlantic: April 28, 2004 GUANTANAMO: WHY THE PRESIDENT IS COURTING DEFEAT http://www.theatlantic.com/politics/nj/taylor2004-04-28.htm The Bush administration seems likely to lose the first big war-on-terrorism case that has come before the Supreme Court -- one regarding due process at Guantanamo Bay. by Stuart Taylor Jr. President Bush seems likely to lose the first big war-on-terrorism battle that has come before the Supreme Court. He richly deserves to lose, for he has claimed absolute, unaccountable power to lock up more than 600 foreigners as "enemy combatants" in his prison camp at Guantanamo Bay, potentially forever, with no semblance of a fair hearing for those who claim to be innocent civilians. I base my prediction -- which some would dispute -- on the justices' questions and comments during the April 20 oral argument in the two consolidated Guantanamo cases, Rasul v. Bush and Al Odah v. U.S. In those cases, the families of 16 Kuwaiti, British, and Australian citizens detained at the naval base claim that their relatives are noncombatant civilians seized by mistake. It also appears quite possible that the Court will rebuff the president's denial of due process to two U.S. citizens, Jose Padilla and Yaser Esam Hamdi, whom he has also labeled "enemy combatants" and has kept locked up in a South Carolina naval brig for two years without criminal charges. The Court has set the Padilla and Hamdi cases for argument on April 28. It will probably decide all of these cases by late June. Karl Rove might want to do some contingency planning: A succession of Supreme Court spankings for unnecessarily trashing civil liberties would not do his candidate much good. During the Guantanamo argument, Chief Justice William Rehnquist and Justice Antonin Scalia predictably embraced the administration's view that no court in the world can inquire into the president's dubious claim that all of the more than 600 prisoners at Guantanamo, from 40-some countries, are Qaeda or Taliban fighters. But Justice Stephen Breyer seemed to speak for his three liberal colleagues when he asserted, "It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want -- whatever they want -- without a check." Instead, Breyer suggested, courts should open their doors to petitions for habeas corpus on behalf of aliens detained overseas by the U.S., while working out "practical" legal rules to avoid interference with battlefield detentions or other sensitive military operations. (Habeas corpus is the common-law writ that prisoners have been able to use for almost 800 years to challenge the legality of their confinement.) The alternative would be to put Guantanamo, over which the U.S. has exercised complete control under a perpetual lease with Cuba since 1903, completely outside the law. Bush will lose if the four liberals pick up the vote of either Sandra Day O'Connor or Anthony Kennedy, the two centrist justices. They were harder to read. But O'Connor rejected Solicitor General Theodore Olson's contention that a 1950 precedent, Johnson v. Eisentrager, bars federal courts from hearing habeas corpus petitions by Guantanamo detainees. (Olson, whose wife, Barbara, died in the 9/11 attacks, has reportedly pushed in internal discussions for the Pentagon to show more respect for due process.) Kennedy, while asking tough questions of both sides, also seemed unpersuaded by Olson. This is not to suggest that the plaintiffs clearly have the better of the legal arguments. Eisentrager and other precedents offer some support for the administration's sweeping claims that federal courts have no power to entertain habeas corpus petitions seeking release of aliens detained outside the U.S., and that such prisoners are unprotected by the Fifth Amendment right not to be "deprived of life, liberty, or property, without due process of law." But O'Connor stressed that Eisentrager, which involved German spies convicted by a military commission and imprisoned by the Allied powers in postwar Germany, could be distinguished from the Guantanamo cases, in which there have been no trials or hearings of any kind. More generally, when presidents push their powers far beyond the legitimate needs of national security, the justices have sometimes put aside their usual deference to the commander-in-chief and pushed back. Bush has foolishly invited such a judicial response ever since his profoundly unwise decision in January 2002 -- when the military started flying prisoners from Afghanistan to Guantanamo -- to spurn both due process and our nation's treaty commitments. The U.S. pledged in the 1949 Geneva Conventions to provide detailed protections for prisoners of war and noncombatants. Bush found these protections inapplicable to Qaeda and Taliban fighters because he said the detainees were "unlawful combatants," who wore no uniforms and systematically murdered and abused innocent civilians. This was correct as to Qaeda terrorists and some, but not all, Taliban fighters. What made Bush's position indefensible was his refusal to provide even an informal military tribunal to hear the claims of many of the detainees that they were neither Qaeda nor Taliban, but rather civilian noncombatants. This was a clear violation of Article V of the Third Geneva Convention, Relative to the Treatment of Prisoners of War. It states that "should any doubt arise" as to the status of captives, "such persons shall enjoy the protection of the present convention until such time as their status has been determined by a competent tribunal." This article was designed to protect both POWs and noncombatants from being mistakenly treated as unlawful combatants. The U.S. military has adopted regulations for Article V tribunals and used them in every war since Vietnam, except for the war in Afghanistan. Had Bush done the same for Guantanamo detainees, some would properly have been freed and most would have been held as unlawful combatants. Any petitions urging federal courts to overrule the military tribunals would have been denied. The courts -- including the Supreme Court, if any cases got that far -- would almost certainly have held that the Article V tribunals satisfied both the Geneva Conventions and any Fifth Amendment due process requirements. But there have been no military tribunals at Guantanamo to which courts can defer. (The military commissions established to try a small number of detainees for alleged war crimes are not yet in business and not authorized to hear claims of noncombatant status.) Instead, Bush and his lawyers have insisted that no Article V hearings are necessary, because there is no doubt that each and every Guantanamo detainee is an unlawful Qaeda or Taliban combatant. "The only thing I know for certain is that these are bad people," Bush said last July 17. In fact, there is a great deal of doubt about that claim. A "senior American military interrogator [estimated] that as many as 20 percent of the Guantanamo prisoners were sent by mistake," the CBS program 60 Minutes II claimed last September. Dozens of the detainees "have no meaningful connection to Al Qaeda or the Taliban ... according to military sources with direct knowledge of the matter," The Los Angeles Times reported in December 2002. Even Defense Secretary Donald Rumsfeld has acknowledged that "sometimes when you capture a big, large group, there will be someone who just happened to be in there that didn't belong in there." And the Pentagon has released more than 130 of the Guantanamo detainees, including the two Britons whose petitions are before the Court in Rasul. If Bush was so sure that all of the men and boys (as young as 13) sent to Guantanamo were dangerous, unlawful combatants, why have so many been freed? The evidence suggests that well over 100 were Arab students and charity workers, other noncombatants, and Taliban conscripts with no loyalty to that now-defunct regime. Some were mistakenly seized in the fog of a war in which there were no uniforms. Others were sold by Afghan and Pakistani bounty hunters to U.S. forces dangling millions in rewards. One might speculate that all of the detainees who would have benefited from Article V tribunals have already been freed. But that seems unlikely. And speculations are no excuse for lawlessness. The Pentagon detailed in February a painstakingly careful, multilayered screening process that it said it uses now before sending new detainees to Guantanamo. It also sketched plans for annual administrative reviews to release any detainees found not to be dangerous. These are welcome steps, but too little and too late. They came only after the administration felt the hot breath of the justices on the back of its neck. And they could be abandoned if Bush wins the absolute power he seeks. The administration argues that even deferential judicial oversight would hurt the war against terrorism. I think that it would help. It would show the civilized world -- which has been horrified by Bush's lawless treatment of foreign prisoners, to the detriment of the alliance against the jihadist barbarians -- that America's judiciary still respects the rule of law, even if the president does not. * * * April 29, 2004 U.S. EXPECTS GUANTANAMO RELEASES TO FRANCE SOON COPENHAGEN (Reuters) - The United States expects to soon begin releasing some detainees from its Guantanamo prison into the hands of French authorities, Secretary of State Colin Powell said on Thursday. Seven French nationals are among around 600 people held at the camp in Cuba because Washington suspects they are members of al Qaeda and Afghanistan's former ruling Taliban militia. The U.S., which has held the detainees caught abroad in its "war on terrorism" at the Guantanamo U.S. naval base in Cuba, has already handed over some prisoners to countries such as Britain and Denmark. "As we examine each of these cases, get as much intelligence information as we can from these individuals and as we can make arrangements with the country of origin, their home country, to return them, then we are returning them," Powell said in answer to a question from students. "I expect action on the French detainees in the very near future." France and the U.S., whose relations became strained over the Iraq war, have been working on the releases for months. Rights groups and many governments have criticized the U.S. for keeping detainees at Guantanamo indefinitely without charges. * * * Toronto Globe and Mail: April 29, 2004 US LEGAL BLACK HOLES By Reed Brody http://www.globeandmail.com/servlet/story/RTGAM.20040429.wxbrody29/BNStory/ Front/ Canadians are familiar with the case of Maher Arar, a Syrian-born Canadian who was sent by the United States, against his wishes, to Syria, where he was reportedly tortured repeatedly during a 10-month confinement. But Mr. Arar's case is unfortunately not unique. This week the U.S. Supreme Court heard arguments on the cases of two American citizens being held by the military as "enemy combatants," and thus being denied a court hearing. Just as Sept. 11 stands as a symbol of a new globalized form of megaterrorism, we have seen in response a new globalized pattern of human-rights violations led by the United States that includes offshore prisons, cross-border arrests that verge on kidnappings, and the "rendition" of terror suspects to countries where information is beaten out of them. The classic case in this brave new world has been Guantanamo, Cuba, which the Bush administration deliberately chose as a detention facility for more than 700 detainees from some 44 countries in an attempt to put them beyond the reach of the U.S. courts - and of any courts, for that matter. The U.S. government has argued that U.S. courts would not have jurisdiction over these detainees, even if they were being tortured or summarily executed. But similar problems are posed by the United States' detention of terrorist suspects in other locations abroad. Indeed, Guantanamo may not be the worst problem; it may even be a diversion from more extreme situations. Perhaps out of concern that Guantanamo will eventually be monitored by the U.S. federal courts, the Bush administration does not hold its most sensitive and high-profile detainees there. Terrorism suspects like Ramzi Binalshibh and Khalid Sheikh Mohammed are detained instead in undisclosed locations abroad, with no access to Red Cross visits or any sort of neutral oversight of their treatment. In Iraq, too, the United States has failed to provide clear, consistent information on its treatment of some 10,000 civilians it has detained there. In violation of the Geneva Conventions, the United States has provided no information at all for at least 200 so-called "high security detainees," as well as persons under interrogation prior to transfer to prison. In Afghanistan, the United States is also holding civilians in a legal black hole at separate off-limits detention facilities at Bagram Air Base and other temporary detention locations around the country - with no tribunals, no legal counsel, no family visits and no basic legal protections. A report released by Human Rights Watch in March presents compelling evidence suggesting that U.S. personnel have committed acts against detainees amounting to torture or cruel, inhumane, or degrading treatment. Released detainees have said that U.S. forces severely beat them, doused them with cold water and subjected them to freezing temperatures. Many said they were forced to stay awake, or to stand or kneel in painful positions for extended periods of time. Three people have died in U.S. custody there. Two of the deaths were ruled homicides by U.S. military doctors who performed autopsies. The Department of Defence has yet to offer adequate explanations. And then there are the so-called "renditions." The U.S. government has not explained why it sent Maher Arar to Syria rather than to Canada, where he resides; why it believed Syrian assurances that he would not be tortured to be credible in light of the government's well-documented record of torture, and why it did not even attempt to monitor his treatment in Syria. Similarly, the Bush administration has still not answered charges levelled in The Washington Post which, citing numerous unnamed U.S. officials, described the rendition of captured al-Qaeda suspects from U.S. custody to other countries, such as Uzbekistan, Pakistan, Egypt, Jordan, Saudi Arabia and Morocco, where they were tortured or mistreated. These countries, like Syria, are ones where the United States itself has criticized the practice of torture. In one case prior to that of Mr. Arar, U.S. operatives were involved in the transfer to Syria for interrogation of a dual German-Syrian national arrested in Morocco, a move protested by the German government. Last June, five prominent Muslims - a Kenyan, Sudanese, Saudi and two Turkish nationals - were arrested in the middle of the night in the small African country of Malawi in a joint security operation involving the Malawian police and the U.S. Central Intelligence Agency. Although a Malawian high court judge issued an injunction barring the men's deportation, ordering the authorities to charge them or release them on bail, the five were spirited out of the country. This sparked three days of rioting by Muslims against Christians. Five weeks later, the detainees reappeared in Khartoum, Sudan, of all places, after having been interrogated for a month, apparently by the CIA in Zimbabwe. Bakili Muluzi, the President of Malawi, has apologized to the families, and the BBC reported him as saying that he did not approve of the arrests but acquiesced in order to please the Americans. In another case, the Bush administration sought the surrender in Bosnia of six Algerian men who were suspected of planning attacks on Americans. After a three- month investigation, Bosnia's Supreme Court ordered the men's release from custody for lack of evidence. When rumours spread of U.S. efforts to seize the suspects anyway, Bosnia's Human Rights Chamber - which was established under the U.S.-sponsored Dayton peace accord and includes six local and eight international members - issued an injunction against their removal. Yet in January 2002, under U.S. pressure, the Bosnian government ignored this legal ruling and delivered the men to U.S. forces, who whisked them to Guantanamo. Around the world, human rights are being assailed in the name of the international campaign against terrorism, but these cross-border practices pose a unique challenge to the rule of law internationally because many of them fall outside the jurisdiction of established courts. Two weeks ago, with the support of Canada, the United Nations Commission on Human Rights approved a Mexican-led initiative to monitor how governments are fighting the campaign against terrorism and whether counterterrorism measures are compatible with international standards. Under the initiative, a new expert will be appointed to assist the incoming UN High Commissioner for Human Rights, Canadian Supreme Court Justice Louise Arbour, in dealing with these new phenomena, as well as the increased use worldwide of prolonged, incommunicado detention without judicial review, torture and other physical and psychological mistreatment of detainees, and security measures that discriminate and curtail freedom of expression and association. Judge Arbour, who begins her new job in June, will have her hands full. [ Reed Brody, special counsel with Human Rights Watch, will be addressing the Canadian Club of Toronto on May 3. ] * * * Herald Sun (Melbourne): April 29, 2004 SOLDIERS CHARGED WITH PRISONER ABUSE From correspondents in Baghdad, Iraq http://www.heraldsun.news.com.au/common/story_page/0,5478,9419622^1702,00.html SIX coalition military personnel have been charged with "criminal offences" after an investigation into alleged abuse of prisoners in Iraq, a US commander said today. US Brigadier General Mark Kimmitt told reporters the six had been charged as a result of an investigation launched in January following complaints from an American soldier. He said footage showing alleged abuse might be shown on US television later today but rejected suggestions that the announcement of the charges was linked to the public exposure which the case might receive. "As a result of the criminal investigations, six military personnel have been charged with criminal offences," Kimmitt said. "The coalition takes all reports of detainee abuse seriously and all allegations are investigated. "We are committed to treating all persons under coalition custody with dignity, respect and humanity. Coalition personnel are expected to act appropriately, humanely and in a manner consistent with Geneva Conventions." * * * Boston Globe: April 27, 2004 US TO PROBE TAKING OF COMPUTER FILES GOP staff leaked Democrats' memos By Charlie Savage, Globe Staff http://www.boston.com/dailyglobe2/118/nation/ US_to_probe_taking_of_computer_files+.shtml WASHINGTON -- The Justice Department has assigned a US attorney to investigate Republican Senate Judiciary Committee staff members who infiltrated the computer files of Democratic staff members on the committee from 2001 to 2003, copying thousands of secret strategy memos about judicial nomination fights and passing some on to the media, according to a letter sent to Democratic senators yesterday. The decision was made on the eve of today's high-profile judicial nomination hearing for Brett Kavanaugh, a former aide to former independent counsel Kenneth Starr and the former associate White House counsel. In the Bush White House, Kavanaugh oversaw judicial nominations before his own nomination to the US Court of Appeals for the District of Columbia Circuit. Democrats on the Judiciary Committee have vowed to question Kavanaugh on whether he knew of the incursion into Democratic files. Yesterday, the Justice Department responded to Democratic calls for a criminal investigation by referring the case to the US attorney for the Southern District of New York. The referral follows a probe by Senate Sergeant-at-Arms William Pickle, who found last month that at least two Republican staff members had taken 4,670 internal documents over 18 months. "This is an important step in getting out the full story of the Republican theft of the Democratic computer files," said Senator Edward M. Kennedy, Democrat of Massachusetts. "We hope to get answers to the questions which the initial investigation by the sergeant-at-arms was unable to answer about the scope of this shameful offense." A Justice Department spokesman declined to comment on or even confirm that the referral had taken place, but a letter from Assistant Attorney General William Moschella to Senator Patrick Leahy, Democrat of Vermont, said US Attorney David Kelley would investigate what Moschella described as "access and dissemination of Judiciary Committee files." At issue will be whether Republican staff members violated the Computer Fraud and Abuse Act of 1984, which makes it criminal to exceed one's authorization to access a government computer. Leahy, the ranking Democrat on the Judiciary Committee, appeared to set the stage for a fight over cooperation by saying he was looking forward to helping Kelley in any way he could. "This is a serious matter that deserves and requires careful investigation," Leahy said. "The Senate sergeant-at-arms made a good start with his investigation and report. With the powers available to a federal prosecutor, this matter can now be more thoroughly investigated, so that those who engaged in criminal conduct may be brought to justice." Senate Judiciary Chairman Orrin Hatch, the Utah Republican who has been criticized by some conservative groups for calling the intrusion "improper, unethical, and simply unacceptable," expressed confidence in the probe. "Senator Hatch has every faith the Department of Justice and the US attorney's office for the Southern District of New York will do the right thing here," said Hatch spokesman Adam Ellgren. The intrusion into Democratic staff computers first became known in November 2003, when the editorial pages of the Wall Street Journal published excerpts showing the influence of outside liberal interest groups in selecting which nominees to target. That led to the Pickle investigation. As first reported by The The Boston Globe and later confirmed by the Pickle report, the scope of the intrusion into Democratic computer files via a password glitch on a shared committee server was much larger than a single instance. Two staff members left under a cloud from the incident. Jason Lundell of Utah, a young committee staff member who copied more than a thousand documents, was said by colleagues to have been planning to leave later in the year anyway. More attention has been paid to the resignation of Manuel Miranda, who had become the judicial nominee adviser to the Senate majority leader, Bill Frist, Republican of Tennessee. Miranda did not return a call yesterday, but in the past has insisted there was no wrongdoing because the documents were freely available from the staff members' own desktop computers and were neither privileged nor private property. * * * Newsday: April 27, 2004 PROBE ON COMPUTER FILES BEGINS By Tom Brune, Washington Bureau http://www.newsday.com/news/nationworld/nation/ ny-usjust273774724apr27,0,48453.story WASHINGTON - The Justice Department has assigned the acting U.S. attorney in Manhattan to investigate a politically sensitive Washington case involving Republican staff accessing internal computer files of Senate Democrats, Sens. Charles Schumer (D-N.Y.) and Patrick Leahy (D-Vt.) said yesterday. The opening of a federal criminal probe follows an inquiry by the Senate sergeant-at-arms that found two Republican staff members had inappropriately accessed more than 4,000 Democratic e-mails, draft memos and other files from 2001 to 2003 through a Senate Judiciary Committee computer server shared by the two parties. In response to a letter from three Democrats and three Republicans on the committee asking for a probe, Justice informed Leahy yesterday it had assigned the case to acting U.S. Attorney David Kelley of the Southern District of New York. Justice officials and Kelley's office declined comment. "This is a very good first step. David Kelley is independent, without conflicts and a very capable prosecutor," said Schumer. Sen. Orrin Hatch (R-Utah), the committee chairman who has condemned the "breach of ethics" by his staffers for accessing and copying the Democrats' files, said he believes Justice and Kelley, who is a Democrat, "will do the right thing." The probe likely will focus on Manuel Miranda, a top Republican aide who has been fired from his job at the Senate. He worked for Hatch, then took a job with Senate Majority Leader Bill Frist (R-Tenn.) this year. Miranda's attorney, Adam Augustine Carter, said neither he nor Miranda had been informed of the investigation, but that they expected it would happen. "We believe any fair-minded investigator will quickly find that no laws have been violated," Carter said. Conservatives want Miranda reinstated and have complained that Justice should investigate Democrats for strategizing with liberal groups. The appointment of Kelley marks the second time that Justice has turned to a top lieutenant of new Deputy Attorney General James Comey, the former U.S. attorney in Manhattan, to conduct a sensitive investigation. On Dec. 31 Comey appointed a former New York colleague, Chicago U.S. Attorney Patrick Fitzgerald, to probe the leak of a CIA operative's identity. * * * Cornell Daily Sun: April 27, 2004 DEBORAH PEARLSTEIN '93 QUESTIONS U.S. LEGAL SYSTEM by Michael Morisy, Sun Senior Writer http://cornelldailysun.com/vnews/display.v/ART/2004/04/27/408def9ce9891 Last night, Deborah Pearlstein '93, director of the U.S. Law and Security Program of Human Rights First, spoke about three upcoming Supreme Court cases involving enemy combatant status and the jurisdiction of the American legal system. The talk, part of the three-day Liberty and Justice for All symposium, was well received by an assembled group of about seventy-five people -- mostly professors and community activists. "The cases the court is hearing this week are ... not all about guilt or innocence, or about combatant sentence or non-combatant status of Yaser Hamdi, Jose Padilla or the Guantanamo Bay detainees," Pearlstein began, "They are much more abstractly about fundamental questions of the rule of law in the United States." She then gave some background information on the upcoming cases. She said that 600 foreign nationals had been held, without access to a lawyer or communication with the outside world, for over two years. Recently, she continued, three youths had been released after two years of detention, one as young as thirteen years old. At Guantanamo, at least thirty-two attempted suicides had taken place, and more are believed to have happened but due to the secrecy surrounding the camps, exact figures were impossible, Pearlstein said. She then discussed the three cases more in depth, outlining the arguments being made on behalf of the detainees. The first case, brought on behalf of 16 Guantanamo detainees, was heard last week before the court. The detainees were picked up in Afghanistan and Pakistan and delivered to U.S. military authorities. President Bush contended that the prisoners are not POWs but enemy combatants and are therefore not protected by the Geneva convention. The President also said that Guantanamo's unique position allows the U.S. to hold them without standard protections afforded by the constitution. Pearlstein said that many in the military were uncertain about the legality of holding prisoners without military tribunal or Geneva-granted rights. "[The military] is only now not following [the Geneva conventions] under the direct orders from the Commander-in-Chief," she said. She added that, aside from being a treaty ratified by the legislature, the military had codified the conventions into their own procedures. Pearlstein also questioned the label of the detainees. "Enemy combatant is a term that doesn't exist in U.S. law," she said. "It's a description, not a legal term." She noted that the government, in each of the three separate cases, defined "enemy combatant" differently. She also explained the three designations of the Geneva convention -- lawful combatant, civilian, and unlawful combatant -- and argued that it covered every possibility for someone picked up off the battlefield. "In Guantanamo Bay, it's a big mix [of types of prisoners]," she said. None, however, were receiving their proper protections. Hamdi's and Padilla's cases, for which Pearlstein will present oral arguments Wednesday, both involve U.S. citizens. The two have also been detained in North Carolina for about two years. "My sense is that there is a bipartisan consensus that this is across the line of what is acceptable," Pearlstein said of the detainments. As evidence of the bipartisan support, she cited that these particular cases had brought an amicus brief -- in favor of the accused -- from the conservative Rutherford Foundation. Following her talk, Pearlstein was open to questions from the audience, many of which focused on whether she thought the government was deliberately eroding liberties as part of a long-term agenda. "I wouldn't underestimate the extent to which the government really believes that it is still trying to get information [from the detainees]," she responded. "I'm always much more inclined to believe in incompetence and bureaucratic infighting than in a nefarious and well-coordinated government plot." She also discussed the problem of raising awareness in the enemy combatant cases. "These aren't the showcase trials of the century," she said. "You don't even have a person." She cited frustration in dealing with major media outlets that had asked about the emotional state of a client who hadn't been seen in two years, missing the point that the client's physical state -- much less their mental state -- was unknown. She said that one thing that students could do to help move the case into national prominence is to write letters and editorials to local media outlets. "The reason CNN doesn't pay any attention to this is because they feel that nobody even cares," she said. "I think the hardest question I get asked right now is, 'What can we do?'" The answer, she says, is to slowly raise public awareness and, depending on how the court cases go, voice feelings on the case to the legislature. She also said that thousands of amicus briefs sent in by students during the Michigan affirmative action case could set an example of possible action. On these briefs, she said that "the court doesn't decide issues on this basis, but it isn't immune to [student briefs]." Those in attendance generally felt that Pearlstein was an excellent speaker. "It was interesting," said James Nuttall '05. He did note, however, that most in attendance already were in agreement and understood the issues that Pearlstein addressed. Prof. Mary Katzenstein, government, had taught Pearlstein during her Cornell days. "It's an underappreciated issue in exactly the way she explained," Katzenstein said. "This [case] is nothing if not about the rule of law." The symposium, which began yesterday, is sponsored jointly by the Center for Religion, Ethics and Social Policy, Cornell for Peace and Justice, the Community for Peace and Justice (Human Ecology), and the Cornell Forum for Justice and Peace. * * * Boston Globe: April 25, 2004 US TO HOLD DETAINEES AT GUANTANAMO INDEFINITELY By Bill Dedman, Globe Correspondent http://www.boston.com/news/nation/washington/articles/2004/04/25/us_to_hold_deta inees_at_guantanamo_indefinitely/ WASHINGTON -- Most of the 595 suspected terrorists detained by the United States at Guantanamo Bay, Cuba, will be held indefinitely, even though there is not yet enough evidence to charge them with crimes, a senior Pentagon official said in an interview with the Globe. The accounting by Paul W. Butler, special assistant to Secretary of Defense Donald H. Rumsfeld, was the first acknowledgment by the government that hundreds of detainees will probably be held without facing military tribunals. Officials have spoken publicly about the prospect of indefinite detentions for some, but they had not disclosed that the majority could be held until the war on terrorism is finished. Unless the US Supreme Court intervenes, the Bush administration plans to hold the prisoners who it believes are dangerous or who can provide useful information in fighting Al Qaeda and other terrorist groups. "What I'm saying is that there is a large percentage right now who are either high threat or high intelligence value, that right now there's no intention to try them before a military commission," Butler told the Globe. "They're dangerous. And we have a responsibility, both to our forces . . . and the rest of the world, to not let those people back out." Butler and other officials also described the factors that are being used to assess how dangerous a detainee might be (joining Al Qaeda after Sept. 11, 2001, for example, might be worse than joining earlier); the interrogation booths at Guantanamo (Arabic posters on the wall encourage confession as a ticket home); and the difficult negotiations with more than 40 countries to take back some of the detainees (if the countries agree to US terms). The officials discussed for the first time the military's Criminal Investigation Task Force, which has interrogated detainees and followed leads around the globe to find evidence of guilt or innocence. Butler expressed frustration that the United States has not gotten the word out about the investigations, that painstaking action is taken for inaction. "One of the things that doesn't seem to come across is that there is this extensive process to try to figure out who these detainees are, what kind of intelligence they have, what threat they represent, and to treat them accordingly," Butler said in the interview Thursday in Rumsfeld's suite at the Pentagon. "We're not in the business of just holding people for the sake of it. . . . We realize that we can't do that. We have to have justifiable reasons to hold on to people." Butler's assurances did not persuade lawyers representing some of the detainees before the Supreme Court, where arguments will continue this week on the limits of the president's authority in the war on terrorism. Two of the lawyers said they were not surprised to hear that the government plans to hold so many people without trial or access to attorneys -- they had noticed that the government had not hired enough attorneys to handle hundreds of prosecutions -- but they said it confirms their worst fear. "It's shocking to anyone who believes in the rule of law," said Michael Ratner, an attorney for several detainees with cases before the court. "Indefinite detention without any legitimate court process is unheard of in this country." Of the approximately 8,000 to 10,000 detainees scooped up in Afghanistan and Pakistan, about 738 were shipped to the US naval base in Cuba. The United States has released 131 and transferred 12 others to their home countries for detention. Of the remaining 595, only two have been charged with crimes so far. More detainees will be charged, Butler said. Some have been at Guantanamo since January 2002. "In a traditional investigation, you show up at a crime scene, you grab some evidence, and you go try to find a suspect," said Colonel Brittain P. Mallow, commander of the investigation task force, whose 150-plus members were drawn from every military investigative agency. "What we have is a pool of suspects, and the United States has asked us, 'What have they done, and have they done something that's worthy of prosecution?' . . . This has been one of the great lessons we've learned, how complex these cases are, and how time consuming it is to gather the facts on them and be able to prove them." The first obstacle was establishing a detainee's true name and date of birth, even his home country. Some who claimed to be Yemenis turned out to be Saudis, or vice versa. They were arrested without passports, cellphones, or calling cards. Some were turned in by Afghans who were paid bounty in the search for Taliban and Al Qaeda members. Even the "pocket litter," the money or scraps of paper that a police officer finds on a suspect, may have been scattered by Northern Alliance troops who handed over a prisoner. "With a lot of these detainees," Butler said, "everything you know about them comes from what they tell you or what someone else in the camp tells you." In the interrogation booths at Guantanamo, they can see only glimpses of home, in the form of posters of a Middle Eastern oasis, with Arabic implorations such as, "Daddy, please tell them what you know and come home." The detainees speak eight major languages, and 20 or more dialects. The need for translators raised a question of who should sit where. "In the early days, an uninitiated investigator would have the interpreter facing the subject and talking to him, perhaps across a table, and the investigator would be sitting over to the side with notes, feeding the translator the questions," said Mallow, a career Army officer and Middle East specialist. But that seating arrangement makes the translator the person in control. "If I'm going to ask you questions, I want to face you. I want to establish contact with you, even if I'm not speaking your language. And so the interpreter may sit behind you." Each detainee is rated in three areas: intelligence value, threat, and potential for prosecution. A rating above the minimum in any category can keep a detainee at Guantanamo. The facts gathered by interrogators and analysts are supplemented by reports from behavioral scientists. This task force, or CITF, is separate from Joint Task Force Guantanamo, or JTF GTMO, the more public unit that runs that Camp Delta prison and also interrogates the detainees for intelligence information to prevent future attacks. The officials would not say exactly what benchmarks they use to calculate a detainee's threat rating. But some of the indicators include the extent of contact with senior Al Qaeda officials; special skills or training (Butler has described one unnamed detainee as a shoe bomb designer); financing ("if someone was captured with $3,500 in cash, US bills, that would be what we would call a clue," Mallow said); deception during interrogation, which is known to be part of Al Qaeda training; and commitment to holy war against Americans, either before or after the attacks of Sept. 11. "Someone who joined the cause after 9/11, that might mean something, particularly if they admit to us, or somebody else admits to us, the reason they came is to fight the Americans -- they came to join the jihad," Mallow said. Even after two years, the detainees continue to help investigators learn a great deal about Al Qaeda and a web of affiliated terrorist groups, the officials said. How was the detainee recruited, at a mosque or university? How did he get in touch with the person who knew where the safehouse was? How does one become a bodyguard for Osama bin Laden? How are nonprofit groups used in financing terrorism? How do leaders communicate orders? "Actual operational, tactical information does wane as time goes by," Butler said. "But we're looking at a broader goal here, trying to understand how these terrorist networks operate, how they morph." For the detainees judged to be less dangerous, or those whose intelligence value has been exploited, some of the delay in releasing them is caused by the complicated negotiations with more than 40 countries to take back their citizens, Butler said. In some cases, the United States insists that the person be detained in the home country, but that may not be possible under that country's laws. Or the detainee could face a trial back home, except that evidence gathered at Guantanamo may not be usable in that country's courts. The closer another country's legal system is modeled on the US Constitution, the less likely it is to be able to use evidence gathered at Guantanamo. "Most of the statements that we've gotten from someone -- if you're dealing with countries that have a Miranda-type law -- are inadmissible, and so what do you have?" said Butler, a former federal prosecutor who worked on the embassy bombings case against bin Laden before becoming responsible for detainee operations and other special operations at the Pentagon. "We don't want to be in the business of just turning people back to a country to have them let go." There's also the reverse situation, countries where the United States might fear for the safety of the detainees if they're shipped home. One case involves China and the Uighurs, an ethnic group of Muslims living mostly in northwestern China. The United States picked up more than two dozen Uighurs at the Afghan camps, where apparently they hoped to learn how to fight for independence from China. The United States no longer considers them a threat, and has negotiated with China about returning them. But Uighur exiles in the United States say that China can be expected to torture and execute the detainees, as it has executed other suspected separatists. This has put Human Rights Watch in the odd situation of campaigning for the release of most detainees, but against the release of these detainees. Butler said that any country receiving a detainee must agree to treat him humanely. Each detainee has been photographed, fingerprinted, and swabbed for a DNA sample. The great fear, the officials said, is that they will release a prisoner, and then find his DNA on the wall of a bombed nightclub in Kuala Lumpur -- or a Starbucks in Columbus, Ohio. Each released detainee is added to the watch lists of people not to be allowed into the United States. The Bush administration has contended that it has sufficient authority to hold the detainees as enemy combatants, not prisoners of war, because they did not fight according to the Geneva Conventions and therefore cannot benefit from its protections. The government says that the prisoners have been treated more humanely than international law requires. And Rumsfeld has said that detainees not put on trial will be able to meet annually with a military review board, although its rules have not been finished. Tom Wilner, a lawyer who argued last week at the Supreme Court on behalf of 12 Kuwaitis who want judicial review of their detention, said he was glad to see the government confirming that most detainees won't go on trial. He has been trying to focus more attention on those detainees, he said, but the press and public have mostly thought of the process as one in which most detainees will either be convicted or acquitted. "The ones who get a trial are the lucky ones," Wilner said. "My 12 guys will never go before a tribunal, because they have no evidence against them." Some detainees are cooperative, and some have hardly said a word in two years. Some seem to have been radicalized by their long detention, the officials said, and others seem to have been mollified by contact with Americans, even Americans who are their jailers, and by medical care and literacy programs at Guantanamo. "I've heard everything," Mallow said, "from 'I just want to go back and be with my family' to 'I'd kill you today if I could get out of this chair.' " [ Bill Dedman can be reached at dedman@globe.com ] * * * DEBKAfile: April 25, 2004 BUSH DIPS INTO BLAIR’S ADVICE AND SHARON’S TACTICS TO FIGHT IRAQ INSURGENCY Repercussions feared of holding back US offensives in Fallujah and Najef hotbeds http://www.debka.com/article.php?aid=833 Before Black Saturday descended on Iraq on April 24, President George W. Bush had expected to quickly squash the various elements of the Iraqi insurgency and their spring offensive and was banking heavily on a decisive autumn offensive to stamp them out just before the presidential election. On Saturday, however, not an hour went by without rockets, exploding cars, mortar fire or roadside bombs spreading havoc across Iraq, leaving at least 10 US troops and 35 Iraqis dead, many more injured and a trail of rage. To cap the grim day, three al Qaeda-style seaborne bombs driven by suicide killers attempted to destroy Iraq’s main revenue lifeline, Basra’s offshore oil terminals that have been handling up to 21.6 million barrels a day. Two US sailors were killed and five injured intercepting one of the three lethal speedboats. Two more blew up near the oil rig 7 miles out to sea where two tankers were moored. This was a strategic attack in the direst sense. DEBKAfile’s Gulf sources report that in recent weeks, gunrunners and smugglers have carved out dozens of illegal anchorages on the Iraqi and Iranian banks of the Shatt al Arb that opens out into the Persian Gulf opposite Basra. Our terror experts detect clear al Qaeda fingerprints in the first bombing of Basra’s oil installations, launched no doubt from the Iranian bank, on the pattern of previous al Qaeda waterborne strikes against the USS Cole in October 2000 and the French tanker Limburg two years later in the Gulf of Aden. The official announcement that the Basra terminals will stay shut down for at least two days may be an understatement. Any damage would take much longer to repair, as would the installation of new counter-measures. Before Saturday and its potential ramifications, the White House had charted a five-point strategy for the run-up to the June 30 transition. It was based on a blend of advice received from British prime minister Tony Blair who visited the White House earlier this month and the tactics Israeli prime minister Ariel Sharon and his defense minister Shaul Mofaz have designed for combating Palestinian terrorists in the West Bank and Gaza Strip. It consists of five main steps: 1. Using a US siege force to cage the instigator of this months’ radical Shiite uprising, Moqtada Sadr in the shrine city of Najef. Only last week, mediation initiatives by senior Shiite clerics and top Iranian officials were abandoned. The Iranians returned to Tehran empty-handed. Sadr continues to defy US threats to turn himself in and face an Iraqi court, preferring to risk capture or death in his Najef stronghold. 2. Using a US Marine force to trap in Fallujah the Iraqi Baathists, ex-Saddam military men, Arab fighters from Syria and al Qaeda combatants pouring in additionally from Saudi Arabia, Chechnya and Kuwait. To fortify the siege, the US Marines and 7th and 121st Engineering corps units built a barrier around most of the flashpoint Sunni Triangle city and had it finished by April 15. The barrier concept was borrowed from Israeli thinking behind the fence surrounding the Gaza Strip and the West Bank fence under construction. For the moment, a general Marine offensive to capture the city is in abeyance, mainly because the army though keen to go forward is overextended. Part of the Fallujah force has been diverted to securing the vital Baghdad-Amman highway supply route. Most military experts believe US troop level should be raised by at least 70,000-100,000 to an optimum of quarter of a million troops. In both Fallujah and Najef, Bush’s generals are counting on siege tactic forcing the rebels to accept a truce on terms of surrender. That advice came from Blair, who did not count on the enemy coming instead from the rear to hit Iraq’s main oil export terminal off shore of British-controlled Basra. In Fallujah, it was understood, house-to-house battles would be costly in casualties; in Najef, a US troop incursion to capture or kill Sadr would inflame the entire Shiite community. Rather than singeing US military fingers, the Americans in both trouble spots adopted the Israeli tactic of encirclement rather than conquest -- as in the Gaza Strip and such West Bank towns as Nablus, Bethlehem and, notably, Yasser Arafat’s Ramallah headquarters, with occasional pinpointed forays. 3. Reversal of the de-Baathisation process instituted by Paul Bremer, which is one reason why Bush is terminating his tour of duty in Iraq in six weeks time. The President is critical of the US administrator’s performance in negotiating with the heads of Iraq’s majority Shiites and the creation of the New Iraq Army. He regards Bremer’s adamant stand against rehiring former Saddam regime members for the military or the civil service as being at the root of the poor showing made by the new Iraqi military and police as well as giving jobless officers an incentive to join the guerrillas. The Bush administration is now recruiting Saddam’s former generals and intelligence chiefs, out of jobs for a year, hoping their long familiarity with the former Iraqi soldiers and their commanders now fighting Americans to help wind down the insurgency that is taking a mounting toll of American and Iraqi lives. In April alone, the US military have so far taken 110 dead and another 900 wounded. 4. On April 16, DEBKA-Net-Weekly 153 named the Mosul-born former Maj.-Gen Mohammed Abdullah Shehwani, 57, recently appointed to head Iraq’s National Intelligence Service, as the man Washington has secretly tipped as Iraq’s future ruler. His Director of Operations will be a Jalal Talabani loyalist, United Kurdish Party intelligence chief, Kosart Rasul, who led the Americans to Saddam Hussein’s hidey hole in December 2003. To further strengthen the hierarchy-in- waiting, the US administration in Baghdad named three new heads for Iraq’s armed forces: Gen. Baker al-Zibari, 56, a Kurd, to be senior defense adviser to the caretaker government and liaison between government and army; Gen. Amer al- Hashemi, 58, a Sunni, as chief of staff and a Shiite, Lt-Gen. Daham al-Assal, 63, as his deputy. These key appointments representing Iraq’s three main communities are aimed at smoothing the way for the fifth step. 5. Barring unforeseen obstacles, Kurdish leader Jalal Talabani is slated to head the Iraqi caretaker government when it replaces the Iraqi Governing Council ahead of the June 30 handover of sovereignty. This step reflects two important developments: A. US planners have discarded their original power-sharing formula that was based on a top-level Shiite-Kurdish nucleus and switched instead to a Kurdish-Sunni combination. B. Talabani owns an interest in a fairly weak federal government in Baghdad compared with strong Kurdish government in Arbil. This attitude suits Bush planning. As the June 30 deadline nears and havoc continues, the White House feels bound to cut down on the sovereignty to be handed to the Iraqi caretaker government, hemming it in with restraints on its control of the army and legislative powers. In the meantime, until stable government rules in Baghdad and a trustworthy Iraqi security force is in place, Bush has no army but his own to put in the field against the terrorists and insurgents troubling Iraqi cities. In the four months since Saddam Hussein was captured, the level of violence has not subsided but increased. * * * April 24, 2004 SENATORS URGE INQUIRY INTO ARMY CHAPLAIN'S CASE By Charlie Savage, Globe Staff http://www.boston.com/news/nation/articles/2004/04/24/senators_urge_inquiry_into _army_chaplains_case?pg=full WASHINGTON -- Senator Edward M. Kennedy yesterday asked Secretary of Defense Donald H. Rumsfeld for a formal investigation into the case of Army Captain James "Yousef" Yee, demanding to know whether the former Muslim chaplain at the Guantanamo Bay Navy base ever had classified materials that would have justified his detention. Kennedy, joined by fellow Democratic Senator Carl Levin of Michigan sent a letter to Rumsfeld saying the treatment of Yee, who was locked up for 76 days in a brig while the military investigated suspicions of espionage, "raises serious questions about the fair and effective administration of military justice." "We ask you to conduct an investigation into the Army's handling of this case, including whether the extensive pretrial confinement and the charges against Chaplain Yee were supported by the evidence," the senators wrote. "The investigation should also address how and why information on this case was released to the press." A spokesman for the Office of the Secretary of Defense said he had not yet seen the letter but was "sure that we will be happy to review whatever the request is from the senators." Yee's civilian lawyer, Eugene Fidell, said he welcomed the congressional interest in his client's case. "Senators Levin and Kennedy are to be commended for saying in public what a lot of Americans have been saying privately, which is that this is a baffling case that requires some explanation," Fidell said. Yee, who is now on leave, has not spoken publicly about his experience and did not respond to a request to be interviewed by the Globe. His current commander has ordered him not to make any speech that would be "disrespectful" toward military authorities or other officials or to criticize military policy in a "disloyal" manner -- restrictions Fidell says amount to a gag order. The case against Yee began on Sept. 10, when he flew to Jacksonville, Fla., from the base in Cuba where he ministered to Muslim soldiers and to roughly 650 accused Al Qaeda and Taliban prisoners being held there. A customs agent, tipped off by waiting FBI and military counterintelligence officials, searched Yee's bag and discovered that the chaplain had some kind of papers with information apparently related to the military's detention and interrogation of the prisoners. The military has never explained why they grew suspicious of Yee. Yee was detained in a brig in South Carolina -- much of that time in maximum- security conditions during which he was allowed outside his cell in shackles for one hour a day, Fidell said. Yasser Hamdi and Jose Padilla, the two US citizen "enemy combatants" whose cases will be heard by the Supreme Court on Wednesday, are also being held there. At one point, a military prosecutor told the military defense lawyer to add someone with death penalty qualifications to his team. News of Yee's arrest was first reported Sept. 20 in a front-page article in The Washington Times. Citing a "law enforcement source," the newspaper reported that Yee had been charged with "sedition, aiding the enemy, spying, espionage, and failure to obey a general order." Other news outlets, following that report, amplified the negative publicity. Speculation that Yee was part of a spy ring at Guantanamo echoed across 24-hour cable news television as two translators at the base were also arrested. In fact, Yee was never charged with any of those crimes. The Army eventually accused him of mishandling classified information by taking papers home and transporting them without the proper covers, along with adultery and downloading pornography onto his government computer -- offenses alleged during the investigation. He still faced up to 13 years in prison. But in a single day of a pre-court-martial hearing in December, prosecutors spent most of the day talking about sex, not security. That hearing was then suspended because prosecutors acknowledged that they had not completed a classification review on the papers taken from Yee. Earlier this year, the then-Guantanamo commander, General Geoffrey Miller, downgraded the case to administrative proceedings and dropped the charges relating to classified materials. That meant the military never had to say exactly what the evidence taken from Yee at the time of his arrest showed. Last month, Miller found Yee guilty of adultery and accessing porn on his government computer and ordered him punished by placing a letter of reprimand in his permanent file. Last week, General James Hill of the US Southern Command decided on appeal to set aside Yee's reprimand and withhold mention of the entire matter from his military file. Hill cited Yee's confinement and the "extreme notoriety of his case in the news media" to support his decision to set aside the punishment, saying he did not believe "that further stigmatizing Chaplain Yee would serve a just and fair purpose." Fidell said he hoped Rumsfeld would give the case his attention because the secretary of defense "can do that which the uniformed Army has thus far failed to do, which is provide an apology." * * * Reuters: April 23, 2004 DEMOCRATS SEEK PROBE OF ARMY CHAPLAIN'S TREATMENT http://www.reuters.com/newsArticle.jhtml?type=domesticNews&storyID= 4927054§ion=news WASHINGTON (Reuters) - Two Democratic members of the Senate Armed Services Committee called on Friday for the Pentagon to conduct an investigation into its treatment of a Muslim Army chaplain who was suspected of spying, detained for months and then quietly released. Sens. Carl Levin of Michigan, senior Democrat on the committee, and Edward Kennedy of Massachusetts said the manner in which Capt. James Lee was detained and prosecuted "raises serious questions about the fair and effective administration of military justice." They urged Defense Secretary Donald Rumsfeld in a letter "to give this issue your immediate attention." The military initially held Lee, 36, on suspicion of espionage at the Guantanamo Bay detention center in Cuba, where he was a Muslim chaplain ministering to terror suspects. He was arrested last September and placed in solitary confinement for 76 days. When the military finally brought charges, Yee was accused only of "mishandling classified documents," not espionage. Then, earlier this year, that charge and all other criminal counts against Yee were dropped and he was released. In a non-criminal hearing in March, Lee was found guilty on lesser charges of adultery and possessing pornography and received only a written reprimand from the Army. The senators said the Pentagon should investigate the Army's handling of the case, "including whether the extensive pre-trial confinement and the charges against the chaplain were supported by the evidence." They said the probe should look into "how and why information in the case was released to the press," noting that media reports had cited anonymous government sources saying Yee was suspected of espionage, aiding the enemy and treason. * * * Johns Hopkins Newsletter: April 23, 2004 GITMO CASE PITS PRESIDENT VS. COURT Laying down the law By Eric Wolkoff http://www.jhunewsletter.com/vnews/display.v/ART/2004/04/23/408856b90f99b The Supreme Court heard oral arguments Tuesday in a case with far-reaching consequences for the war on terror and the status of detainees in present and future military conflicts: the Guantanamo Bay cases, Rasul v. Bush and al-Odah v. United States. Lawyer John Gibbons argued on behalf of British, Australian and Kuwaiti citizens who were captured in Afghanistan or Pakistan and are currently being held at the Guantanamo naval base in Cuba. Gibbons argued that the statutory writ of habeas corpus (the ability to have complaints heard in a formal American legal process) should be extended to such prisoners because they are being detained by the federal government under the authority of the U.S. The government argued through Solicitor General Theodore Olson that foreign nationals detained abroad by the U.S. military do not have access to the American court system and argued that Guantanamo Bay should be considered foreign soil. The Bush administration's case relied heavily upon Johnson v. Eisentrager, a case in which the majority on the Court held that German nationals, under custody of the U.S. Army in Germany following conviction by a military tribunal of having engaged in military activity against the U.S. after the surrender of Germany, had no right to a writ of habeas corpus to test the legality of their detention. During oral argument, it seemed clear that Justices Stevens, Ginsberg, Breyer, Kennedy and Souter were extremely concerned with the administration's interpretation of the habeas corpus statute and found Johnson v. Eisentrager to be too difficult to interpret in light of its reliance not only on constitutional and statutory law, but also on the specific merits of the case. Thus, since Eisentrager relies heavily on precise circumstances that are obviously different than those in the Guantanamo case, these justices seemed to question whether or not Eisentrager applied to the situation at hand. Although it appeared as though those justices favored Gibbons' argument, they also struggled with its limits. It has always been clear that either a foreign national captured on American soil or any American citizen is unconditionally afforded the writ of habeas corpus and due process rights not only under statutory law but also the Constitution. The current case greatly expands the scope of such protections. What about a prisoner captured on the field of battle and detained during the course of conflict? Gibbons' response that "habeas corpus has never run to the battlefield" seems inadequate given the war on terror - a war in which neither the battlefield nor the scope of conflict is easily defined. Furthermore, when does the war on terror end? For legal purposes, is our country at war for an unlimited duration of time? The case is monumental not only because it opens the doors of American civil and criminal procedure to enemy combatants, but also because it will serve to legally redefine the boundaries of presidential power. As a western society built upon the foundation of the rule of law and access to the judicial process, it is troubling that the executive branch would have the opportunity to create a "zone of lawlessness," but ultimately the decision to define the jurisdiction of the courts and the law itself should lie with Congress and not the judiciary. As Olson noted, after Eisentrager, a case that many interpreted to narrowly define the jurisdiction of the American courts, Congress had many opportunities to redefine habeas corpus to cover any foreign national held by the U.S. government. By failing to do so, Congress has acquiesced to the Executive branch. The Court, as Justice Scalia pointed out in oral argument, is ill equipped to define the boundaries of jurisdiction as they relate to the field of battle because the Court has no access to the specific commissions and witness testimony that Congress would be able to gather in finding a properly tailored solution. Furthermore, after granting habeas corpus, there will be many due process questions which should be defined by the Executive branch under the check of the Congress and the American people. The Court is ill equipped to properly define the boundaries of American foreign policy and security during a time of war. Although the government has erred in not providing any sort of review for these prisoners, this is not a time for judicial activism but for thorough and careful review. The Court should act slowly but deliberately in affording the executive and Congress their proper authority. [ Previous columns by Eric Wolkoff can be found online at http://www.jhunewsletter.com ] * * * April 22, 2004 ACCUSED TERRORISTS FACE DIFFERENT KIND OF JUSTICE By Toni Locy, USA TODAY http://www.usatoday.com/news/washington/2004-04-22-gitmo-cover_x.htm WASHINGTON -- In letters to his father, terrorism suspect Moazzam Begg has lamented that he has not been charged with a crime but is being held, with no end in sight, at a U.S. military base in Cuba. "I believe there has been a gross violation of my human rights, particularly to that right of freedom and innocence until proven guilty," wrote Begg, 36, a British citizen who U.S. officials believe was trained by al-Qaeda to use chemicals and explosives. "I still don't know what crime I am supposed to have committed." That could become clear soon. Of the 595 suspected al-Qaeda and Taliban operatives being held at Guantanamo Bay, Cuba, Begg is among six who have been designated for possible trial by military tribunal. President Bush ordered the Pentagon to create the tribunal system to try foreign terrorism suspects while guarding U.S. intelligence-gathering methods. But Begg and the others won't have the range of traditional rights that defendants get in U.S. civilian courts. A year after the Pentagon began releasing rules for the tribunals, a picture is emerging of a system in which the scales of justice are tipped against foreign terrorism suspects in favor of protecting national security. The system contains twists on defendants' rights that likely will be unfamiliar to U.S. citizens who are used to civilian and military courts anchored by independent judges and unbiased juries. In the tribunals: * There will be no independent judge, and no jury will be selected to decide a case. The tribunals -- made up of three to seven military officers picked by the Pentagon -- will act as judge and jury. One of the members will be a legally trained "presiding officer," whose power will be limited: He or she cannot consider defense motions that could result in the dismissal of charges. Other panel members will be able to overrule the presiding officer on whether evidence has "probative value to a reasonable person." That is a lower standard for relevancy than what is used in U.S. civilian courts, and it allows the prosecution and defense to use evidence gathered on the battlefield. A vote of two-thirds of the members is needed to convict and to impose a sentence -- except in a death-penalty case, in which the tribunal must be unanimous. * The government will have broad discretion to hold portions of trials in secret. U.S. officials can close sessions by designating evidence with a new, legally untested secrecy label, called "protected information." In civilian courts and courts-martial, judges and lawyers use a lengthy process to find ways to present classified evidence to juries. * Terrorism suspects who are acquitted by tribunals still could be detained indefinitely. The Bush administration says the laws of war allow it to hold acquitted detainees as "enemy combatants" if it believes they pose a threat to national security. * Defendants can hire civilian attorneys, but they will be backups to military defense lawyers. The Pentagon-assigned military lawyers can see secret evidence against detainees. Civilian lawyers must be screened to get security clearances. The defense lawyers must report potential threats to national security if they learn of any from their clients. * Defendants will have the right to call witnesses. But the rules don't say how the tribunals will resolve disputes over whether the government must produce other al-Qaeda or Taliban captives when defendants seek their testimony. * Appeals are limited. A review panel, whose members have been selected by the secretary of defense for two-year terms, can order charges dismissed if it finds a "material error of law" in a case. The rules prohibit defendants from appealing to U.S. civilian courts. But legal specialists expect defense lawyers to try. This week, the Supreme Court began considering broader challenges to the administration's legal war on terrorism. On Tuesday, the court heard arguments on whether the Guantanamo detainees should have access to U.S. courts to challenge their detentions. Next week, the justices will consider whether Bush has the power to designate two U.S. citizens as enemy combatants who can be held indefinitely without being charged or granted a hearing. Critics say the tribunal rules show that Bush's terrorism policies contradict American ideals of fairness. But Air Force Maj. John Smith, a spokesman for the tribunals, says critics distrust the new system because it is different from U.S. civilian and military courts. "Different," he says, "doesn't mean unfair." Pentagon went 'back in time' To carry out Bush's November 2001 order to create a separate justice system for foreign terrorism suspects captured abroad, the Pentagon relied on rules for tribunals that followed World War II. In going "back in time," officials ignored nearly 60 years of advances in international and U.S. military law, says Wendy Patten of Human Rights Watch, a human rights advocacy group. Patten says times have changed since World War II. Back then, prisoners of war had few protections, suspects in police custody in the USA had no "Miranda" right to remain silent during interrogations, and U.S. soldiers could not appeal convictions in military courts to the Supreme Court. "The world has turned a great deal since 1951, when the last World War II commission was completed," says retired Marine Lt. Col. Gary Solis, who teaches the laws of war at Georgetown University in Washington. "And the world has come to expect a higher level of judicial procedure, even for the most nefarious criminal," Solis said. Air Force Brig. Gen. Thomas Hemingway says the new tribunals will be better than the World War II panels. Unlike Nazi and Japanese war criminals, defendants in the new system can't be forced to testify, and the burden of proof is on prosecutors, he says. Supporters of the Pentagon's plan, such as Douglas Kmiec, a law professor at Pepperdine University in Malibu, Calif., say the detainees don't deserve the panoply of defendants' rights because they ignored the laws of war by blending in with civilians. The suspected Taliban and al-Qaeda captives have been labeled as "enemy combatants," not as prisoners of war, because Bush says they violated the laws of war by not wearing uniforms and other insignia. POWs are entitled to the same judicial procedures that their captors give their own troops. Solis, a former military prosecutor, says the Pentagon is "flipping the bird" at the rest of the world by refusing to give Taliban fighters POW status, requiring civilian defense attorneys to pay for security clearances and insisting that even if detainees are acquitted, they might not be set free. Bush says his war powers allow him to hold the detainees without charging them and without giving them access to U.S. courts, for as long as the war on terrorism lasts -- in essence, indefinitely. U.S. officials say the detentions keep suspected al-Qaeda and Taliban operatives from joining terror plots. The White House strategy has many critics, especially in Great Britain, where some members of Parliament have called the tribunals a "charade of justice." Fueling charges of unfairness is the Pentagon's decision not to seek the death penalty against two Britons --including Begg -- and an Australian who face possible tribunals. Civil libertarians say the decision shows bias against detainees from countries that are not U.S. allies. Pentagon officials say evidence against the three men does not warrant death sentences. "It's already a second-class system for non-citizens," says Timothy Edgar of the American Civil Liberties Union. "Now, there will be two or more tiers within it." The 'worst of the worst'? Who are the 595 men held at Guantanamo Bay? Are they hard-core terrorists, the "worst of the worst," as administration officials say? Are they ordinary people scooped up by mistake in the chaos of the war? Or are they victims of Afghan "bounty hunters," who sold them to U.S. soldiers, as some detainees claim? The Pentagon says the detainees include a shoe bomb designer, al-Qaeda bookkeepers and a trainer who plotted to use cell phones to detonate bombs. U.S. officials say that round-the-clock interrogations have yielded significant details about al-Qaeda's goals. But military justice analysts say the indefinite detentions and endless questioning could lead to false confessions by captives seeking privileges such as group housing and Islamic prayer rugs. Interrogations would be limited if the detainees were labeled as POWs, Solis says. POWs can be questioned. But they cannot be coerced into revealing more than name, rank and serial number. "I understand their problem," Solis says of the U.S. government. "They want information." But Solis worries that in future conflicts, captured U.S. soldiers could face tribunals with fewer rights than the Guantanamo detainees will get. "What goes around, comes around," he says. Pentagon officials can continue to tinker with the rules because no tribunals have been scheduled for the two detainees charged so far. They have relaxed a rule that defense attorneys agree to government surveillance of their meetings with detainees. The Pentagon promises to notify them first. And Hemingway says current or former military judges will be the tribunals' presiding officers. "They're trying to create a system that's not only fair but appears to be fair," says Neal Sonnett, a Miami lawyer who led an American Bar Association panel that made several suggestions that the Pentagon adopted. "But they just can't get there because of these flaws." Tribunal's rules questioned Air Force Lt. Col. Sharon Shaffer says she is "gravely concerned" about the tribunal rules. She represents Ibrahim Ahmed Mahmoud al Qosi, 43, of the Sudan, who faces conspiracy charges. The tribunals aren't an issue before the Supreme Court. But in a brief filed in the Guantanamo case, Shaffer and other military defense lawyers say Bush cannot try anyone he wants before a tribunal without civilian court review. Navy Lt. Cmdr. Charles Swift is asking a federal judge in Seattle to allow him to challenge the detention of Salem Ahmed Salem Hamdan, 34, of Yemen. Hamdan faces a tribunal but has not been charged. The military defense attorneys also may demand access to witnesses in U.S. custody who detainees say could exonerate them. Accused terrorist Zacarias Moussaoui, a French citizen who was arrested in Minnesota before the Sept. 11 attacks, has made similar demands in his case in federal court in Virginia. What would happen if a tribunal granted a defense request for access to another captive? The rules don't say, but Hemingway says a trial could be halted while prosecutors appealed to the "appointing authority" or review panel. Critics say the rules provide such broad powers to the appointing authority -- John Altenburg, a retired Army lawyer -- that he could control virtually every aspect of a tribunal. He will approve charges against detainees, select tribunal members and rule on defense motions that could result in cases being dismissed. "Could you have done (the tribunals) differently? Sure," Smith says. But "the bottom line is, did the accused have his day in court?" * * * Newsweek: April 21, 2004 BLAMING SADDAM How the Pentagon considered extending its controversial 'enemy combatant' label in a bid to prove links between Iraq and Al Qaeda By Michael Isikoff and Mark Hosenball http://msnbc.msn.com/id/4799686/ April 21 - In the run-up to the war on Iraq, a top Pentagon official pushed a highly unorthodox plan to deploy one of the U.S. government’s most controversial legal tactics -- the designation of suspected terrorists as "enemy combatants" -- in hopes of finding new evidence of alleged connections between Saddam Hussein’s regime and Al Qaeda, NEWSWEEK has learned. The proposal, pressed by Deputy Secretary of Defense Paul Wolfowitz, called for President George W. Bush to declare Ramzi Yousef, the convicted mastermind of the 1993 World Trade Center bombing, as an enemy combatant in the war on terror. This would have allowed Yousef to be transferred from his cell at the U.S. Bureau of Prison’s "supermax" penitentiary in Florence, Colo., to a U.S. military installation. Wolfowitz contended that U.S. military interrogators -- unencumbered by the presence of Yousef’s defense lawyer -- might be able to get the inmate to confess what he and the lawyer have steadfastly denied: that he was actually an Iraqi intelligence agent dispatched by Saddam to blow up the World Trade Center in 1993 as revenge for the first Persian Gulf War. The previously unreported Wolfowitz proposal -- and the high-level consideration it got within the Justice Department -- sheds new light on the Bush administration’s willingness to expand its use of enemy-combatant declarations inside the United States beyond the three alleged terrorists, two of them American citizens, who have already been designated by the White House. It also underscores the persistence with which Wolfowitz and his allies within the Pentagon pursued efforts to uncover evidence of links between Saddam’s government and Al Qaeda -- a key, and still disputed, element in the Bush administration’s case for war. One principal reason for that persistence, sources say, was Wolfowitz's fascination with the conspiracy theories of academic Laurie Mylroie, who has argued in a series of books and magazine articles that Saddam Hussein was responsible for the 1993 World Trade Center bombing, along with virtually every other terrorist strike in the years since that have been commonly attributed to Al Qaeda. In his new book, "Plan of Attack," Washington Post reporter Bob Woodward writes that at a Camp David meeting shortly after September 11, 2001, Wolfowitz, who was pushing for an immediate invasion of Iraq, "estimated that there was a 10 to 50 percent chance Saddam was involved in the 9/11 attacks -- an odd conclusion that reflected deep suspicion but no real evidence." A spokesman for Wolfowitz had no comment. An administration official familiar with the deputy Defense secretary's position told NEWSWEEK today that Wolfowitz "simply has asked repeatedly over the past two and a half years whether there were ways to use our custody of Ramzi Yousef to get information on his uncle, Khalid Shaikh Mohammed, mastermind of the September 11 attacks and his two brothers, his cousins and other family members and friends -- all of whom are known to be terrorists." President Bush has since acknowledged there is no evidence of any Iraqi involvement in September 11. But administration officials, including Vice President Dick Cheney, continue to assert that there is abundant evidence of past Iraqi support for terrorism, including possibly the 1993 World Trade Center bombing. The Wolfowitz proposal involving Yousef was repeatedly pressed on top Justice Department officials, including Attorney General John Ashcroft and then Deputy Attorney General Larry Thompson, in 2002, law-enforcement officials tell NEWSWEEK. At one point, the high-level discussions apparently prompted a top Bureau of Prisons official to make an unauthorized entry to Yousef’s cell at Florence to sound out his willingness to talk -- a move that prompted strong protests to the Justice Department from the bomber’s lawyer, according to department officials and correspondence between the lawyer and Justice officials. (The official, G. L. Hershberger, a regional director of the Bureau of Prisons, told NEWSWEEK he could not comment on his dealings with Yousef. In a Feb. 10, 2003, letter to Yousef's lawyer, he acknowledged he had visited Yousef "in a manner consistent with sound correctional management," but stated: "I have never threatened to change your client's conditions of confinement based on whether he provides information to the United States.") The plan also stirred strong opposition from the FBI, whose top officials argued that the proposal -- like other Wolfowitz-inspired efforts to prove links between Iraq and Al Qaeda terrorism -- were a waste of time and effort, sources said. FBI officials, led by Pasquale J. Damuro, then the FBI's chief of counterterrorism and now assistant director in charge of the New York field office, contended the bureau had already exhaustively investigated the theory that Yousef was working for Iraqi intelligence -- and found no evidence to support it. "We’ve already covered this," Damuro said at one high-level Justice meeting. (A spokesman for Damuro said he did not recall making the comment.) Still, the plan was forwarded to the Justice Department’s Office of Legal Counsel, which under White House-directed procedures, is supposed to review candidates for enemy-combatant status, sources said. The office quickly concluded that Yousef didn’t meet the standards and never forwarded a proposed designation to the White House. "We talked it to death," said one lawyer involved in the discussions. President Bush’s authority to declare U.S. citizens enemy combatants in the war on terrorism is due to be argued next week when the Supreme Court hears oral arguments in separate cases involving Yaser Hamdi, a former Taliban fighter captured in Afghanistan, and Jose Padilla, a former Chicago gang member accused of plotting to set off a radiological "dirty bomb" in the nation’s capital. As reported in this week’s NEWSWEEK, the concept of enemy combatants has been the subject of intense, sometimes acrimonious debates within the administration. Once an enemy-combatant designation is made, the detainee is transferred from the U.S. courts to the custody of the U.S. military and is stripped of virtually all constitutional protections, including the right to counsel and the right to trial. The administration has argued that, because the United States is "at war" with Al Qaeda and its allies, enemy combatants can be detained indefinitely -- until the end of the conflict. In addition to Hamdi and Padilla, the White House also last year designated a third man -- Ali Al-Marri, a former Bradley University student from Qatar who was living in Peoria, Ill. -- as an enemy combatant. But some officials within the administration, led by Cheney, have pushed for more designations, prompting vigorous opposition from Justice Department officials who have warned that the extraordinary tactic might not pass muster in the Supreme Court. Wolfowitz’s interest in the procedure, sources said, stemmed from his longstanding interest in the theories of Mylroie, a controversial academic and former fellow of the conservative American Enterprise Institute. Her 2001 book, "Study of Revenge: The First World Trade Center Attack and Saddam Hussen's War against America," cites Wolfowitz in the acknowledgements for providing "crucial support" for the project. Others who merit expressions of gratitude in Myleroie's acknowledgements are three top aides to Cheney -- chief of staff Lewis (Scooter) Libby and foreign-policy advisors John Hannah and David Wurmser -- as well as Undersecretary of State John Bolton and Francis Brooke, a principal Washington lobbyist for the Iraqi National Congress. At the heart of Mylroie’s theory is her contention that, after the invasion of Kuwait in 1990, Iraqi intelligence agents arranged for Yousef to assume the identity of Abdul Basit, a Pakistani man who was then living in Kuwait, and dispatched him to the United States to commit acts of terrorism. Wolfowitz’s interest in proving Mylroie’s "switched identity" theory got him to persuade the Justice Department shortly after September 11 to provide a government jet and FBI staff support for a secret mission to England by former CIA director James Woolsey. The idea behind the mission was to check fingerprints on file in Swansea, England, where Basit had once gone to school, and compare them to the fingerprints of the Ramzi Yousef in prison. Mylroie had postulated that Basit and Yousef were actually two different people and the fingerprints therefore wouldn’t match. The FBI instead has long contended that Basit and Yousef are one and the same; that Yousef is a Pakistani (and the nephew of the September 11 mastermind Khalid Shaikh Mohammed) and not Iraqi. Justice Department officials tell NEWSWEEK that the results of the Woolsey mission were exactly what the FBI had predicted: that the fingerprints were in fact identical. After the match was made, FBI officials assumed at the time that it had put the Mylroie theory to rest. But Wolfowitz, who remained immersed in details of the 1993 World Trade Center case, continued to push his attempts to prove links between Yousef and Iraqi intelligence. This has led to his proposal to have the terrorist designated an enemy combatant. His determination was emboldened by the unyielding stand of Yousef’s defense lawyer, Bernard Kleinman, who strongly objected whenever federal officials tried to question his client without his being present. The defense lawyer couldn’t interfere if Yousef could be transferred to military custody and questioned by military interrogators, Wolfowitz argued. "They didn’t give up," said one senior Justice official about Wolfowitz and his allies, who include ex-CIA director Woolsey. "They are very determined." The main problem with the Wolfowitz proposal, the official said, is that Yousef didn’t meet any of the criteria the White House had laid out for designating enemy combatants. He was captured in Pakistan in 1995 -- long before September 11, 2001, which the administration has argued was the triggering event in the war against Al Qaeda. Moreover, because Yousef was being housed in the most secure federal prison in the country under the most restrictive conditions (he is in solitary confinement and denied access to television and current periodicals), he could hardly be described as an ongoing threat to the safety of Americans. Kleinman, Yousef's lawyer, said he was unaware that the government had ever considered designating his client as an enemy combatant. But when told of the proposal today by NEWSWEEK, he described the idea as "absurd." "If they had ever tried that, I would have fought like hell to stop them," he said. As for the continued theories about his client, Kleinman said: "There is nothing in the record that would corroborate that he was ever an agent of Iraqi intelligence ... They were grasping at straws." * * * Published April 20, 2004 PADILLA CASE SEEN AS LANDMARK FOR CITIZEN DETAINEES Jose Padilla's mother doesn't plan on going to the U.S. Supreme Court next week, when her son's fate will be argued. "It might be harder than she could imagine to be there," said Susan Tipograph, the attorney for Estela Ortega Lebron of Plantation. Padilla won't be there, either. He's still in a military brig in South Carolina. He has been held by the government for almost two years, and it's getting harder to say whether he's in custody or captivity. Having been declared "an enemy combatant" and "a bad guy," having been publicly branded a terrorist plotting a radiological bomb attack for al-Qaida, Padilla now finds himself at the center of a landmark court case. It's a case that has chilling and profound ramifications for all Americans. The question: Can a U.S. citizen detained on U.S. soil be stripped of almost all his legal rights simply on the president's say-so? "We don't understand how important this is," said Tipo graph, who will attend the court hearing on Ortega's behalf. "We might not under-stand for another 50 years." Padilla, a former Broward County resident who was picked up at Chicago's O'Hare Airport in May 2002, has not been charged with a crime. Yet he finds himself serving an open-ended sentence, not allowed any contact with his mother or other relatives. Since being declared an enemy combatant by President Bush in June 2002, he has had only one brief series of meetings with his lawyers, last month. "He looked OK," said Donna Newman, one of Padilla's New York-based attorneys. "Everything was monitored. There was no attorney-client privilege." On Monday, Newman had the frantic voice of a student cramming for the biggest test of her life. Either she or Stanford law professor Jenny Martinez will handle the justices' questions next week. If the court rules against Padilla, he could be held indefinitely or tried by a military tribunal. "This will set a precedent," Newman said. It's among three key cases the Supreme Court will hear in the next two weeks concerning the legal boundaries of the war on terrorism. First comes today's argument over the noncitizens captured in Afghanistan and Pakistan who have been held at the U.S. military base in Guantanamo Bay, Cuba. On April 28 come the cases involving Padilla and Yaser Esam Hamdi, a U.S. citizen seized in Afghanistan while allegedly fighting for the Taliban. Padilla's case is the only one involving an American detained in the United States. "This is about whether the government has the right to snatch citizens off the streets and throw away their access to the courts just by declaring them an enemy, with no charges or proof," Tipograph said. The Bush administration argues the president has the power as commander-in-chief to prosecute wars as he sees fit. But the 2nd U.S. Circuit Court of Appeals in New York ruled it's Congress' job to designate enemies. The cases involving those picked up overseas are murky, tinged with nuances of international law and diplomacy. But Padilla's should be crystal clear. When it comes to Americans detained in America, the justice system is supposed to go like this: The government brings charges, the accused is entitled to his day in court, and a jury sifts through the facts and evidence before issuing a verdict. I still haven't heard an explanation why this case should be any different. It's not the first one involving national security or terrorism. There must be some way for the government to produce records, phone intercepts, witnesses. There must be some way the government can make the case to a jury for what it has so loudly claimed. Because we all know that the U.S. government would never exaggerate a case involving "weapons of mass destruction," right? If a president is going to be allowed a sweeping and scary new justice system for Americans picked up in America, there better be a damn good reason. Maybe next week we'll hear one. Michael Mayo can be reached at mmayo@sun-sentinel.com or 954-356-4508. * * * Legal Times: April 20, 2004 A VETERAN GIVES VOICE TO GUANTANAMO CASE Ex-judge, WWII vet John Gibbons will argue that even suspected terrorists deserve access to the courts Vanessa Blum, Legal Times http://www.law.com/servlet/ContentServer?pagename=OpenMarket/Xcelerate/View&c= LawArticle&cid=1082131845779&t=LawArticle John Gibbons, a retired Republican appointee to the federal bench and name partner in a 175-lawyer corporate law firm, seems an unlikely advocate for the rights of detainees at Guantanamo Bay. But today, the 79-year-old Gibbons will play that part before the U.S. Supreme Court. The case presents the justices with their first opportunity to consider whether federal courts have power to review the lengthy detentions of suspected al-Qaida members in the war on terror. Gibbons, former chief judge of the 3rd U.S. Circuit Court of Appeals, says he has no apprehension about walking into one of the term's most contentious and closely watched cases. "I've been involved in many, many controversial and high-profile cases," he says. Appointed to a seat on the 3rd Circuit by President Richard Nixon in 1970, Gibbons earned a reputation for being tough, fair and insightful. Since retiring his robes in 1990, he has championed the causes of society's underdogs and become a vocal opponent of capital punishment. In his only previous appearance before the Supreme Court, in the 2000 case Williams v. Taylor, Gibbons won the reversal of a Virginia state death sentence on the basis of ineffective assistance of counsel. At his Newark, N.J.-based law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Gibbons helps administer a firm-sponsored fellowship that routinely takes up the cases of death row inmates, welfare recipients, battered women, political asylum-seekers and others in need of free legal assistance. "The breadth and depth of his knowledge is extraordinary," says Lawrence Lustberg, a former federal public defender who joined Gibbons Del Deo as the first "Gibbons fellow" in 1992. "A lot of lawyers and judges are very good at spotting issues. Judge Gibbons knows the law in a concrete, specific way. He knows the cases from the founding of our republic until yesterday." Gibbons became involved in litigation challenging the indefinite detentions at Guantanamo Bay in 2003, signing on to an amicus curiae brief on behalf of several retired federal judges and government officials who urged the Supreme Court to accept the case. "What drew me to the case was that the court of appeals decision created a legal black hole, a no-law zone," says Gibbons, a former constitutional law professor at Seton Hall University School of Law who testified in support of Clarence Thomas' 1991 Supreme Court nomination. "I'm very uncomfortable with no-law zones anywhere in the world." U.S. POSITION 'FRIGHTENING' More than 600 individuals picked up in the war on terrorism are currently held at the U.S. naval base at Guantanamo Bay, Cuba. The case before the Supreme Court arose out of two separate lawsuits -- Rasul v. Bush and Al Odah v. United States -- brought by family members of 16 Australian, British and Kuwaiti detainees. At this week's oral arguments, Gibbons will face off against Solicitor General Theodore Olson, who will argue that American courts have no authority to second- guess the status of foreign citizens held outside the borders of the United States. Gibbons calls the administration's position "frightening." "The only possible law that can apply in Guantanamo Bay is American law. Cuban law can't apply," Gibbons says. "There should not be a place where the executive branch can detain people with no access to any court in any country." The Guantanamo case marks the first of three landmark cases in the war on terrorism that the Supreme Court will hear this month. Oral arguments in suits challenging the detentions of U.S. citizens Jose Padilla and Yaser Esam Hamdi as enemy combatants are scheduled for April 28. Deputy Solicitor General Paul Clement is expected to represent the government in both cases. Federal Public Defender Frank Dunham Jr. will argue for Hamdi. Meanwhile, lawyers working with the Padilla camp report jockeying between Padilla's longtime lawyers Donna Newman and Andrew Patel over who should handle oral arguments. Newman says the pair plans to file a motion asking to split their 30-minute argument. Under Supreme Court rules, dividing an argument is not favored and permission is rarely granted. Patel says the issue is "still up for discussion." Recruiting Gibbons to argue on behalf of the Guantanamo detainees helped to thwart similar tensions from developing between the legal teams in the two underlying cases. Minneapolis criminal defense lawyer Joseph Margulies, the lead lawyer in Rasul, and Shearman & Sterling D.C. partner Thomas Wilner, the lead lawyer in Al Odah, both acknowledge that when the two cases were consolidated neither wanted to step aside. The legal teams hoped to avoid conflict and boost their jurisdictional arguments by reaching out to a neutral party and a retired federal judge. "One of the things I'm most gratified about is that all the major decisions in this case have been amicable. It has always been a matter of what was in the best interest of our respective clients," says Margulies. He adds, "We consider ourselves very lucky to get someone who can bring to the table what Judge Gibbons brings. He is extremely credible and knowledgeable about the role the judiciary plays in our society." Wilner says Gibbons came highly recommended from colleagues and academics familiar with his reputation as a judge and as an advocate. The fact that Gibbons' personal politics are hard to pin down made him an even more compelling choice. "His involvement demonstrates that this case is not about politics," Wilner says. Michael Ratner, president of New York's Center for Constitutional Rights and co- counsel on Rasul, says Gibbons is no "gun for hire." "The fact is that he feels very firmly that every person detained by the government deserves to have some kind of review," Ratner says. "Couple that with the fact he is a Republican and former chief judge of the 3rd Circuit, and it says this case is about fundamental justice." A LIFE OF SERVICE A father of seven and grandfather of 13, Gibbons was born in Newark in 1924. In 1943, his studies at the College of the Holy Cross were interrupted by World War II. Gibbons enlisted in the Navy and was at one point stationed at Guantanamo Bay. After returning from service, Gibbons resumed his academic career, graduating from Harvard Law School in 1950 and then returning to Newark to start a private law practice. By 1970, when he was nominated by Nixon for a seat on the 3rd Circuit, Gibbons was well-established in the New Jersey Bar, having served as president of the local bar association, chairman of the New Jersey Board of Bar Examiners, a member of the Governor's Select Committee on Civil Disorders, and a member of the New Jersey Council Against Crime. Gibbons held his judicial seat for 20 years, to the day, acting as chief judge from 1987 until his retirement three years later. Former D.C. Circuit Chief Judge Abner Mikva says fellow federal judges regarded Gibbons as "careful" and "thoughtful." "He clearly understands a judge's role in our society, and that as a judge you sometimes need to be able to swim upstream and to take positions that may be unpopular," says Mikva, now a law professor at the University of Chicago. "He was that kind of judge. He took tough positions if necessary and stood with them." Chester Keller, the No. 2 lawyer in New Jersey's federal public defender's office, says Gibbons was considered fair but not sympathetic to criminal defendants. "He was clearly one of the brightest and fairest individuals that you could ever hope to have hearing your appeal," Keller says. "He knew the record and the applicable case law, and attorneys that appeared before him had to anticipate many probing questions." Even Solicitor General Olson expresses admiration for Gibbons, calling him a "remarkable man, a wonderful lawyer, a great scholar." After retiring from the bench, Gibbons rejoined his old law firm, which launched the Gibbons Fellowship in Public Interest and Constitutional Law in his honor. Since 1992, the program has funded 16 full-time attorneys who have worked exclusively on public interest litigation. Recent matters include a case challenging the conviction of a pregnant woman for manslaughter based on a suicide attempt that killed her unborn child; a case seeking enhanced special education services from Newark Public Schools; a case challenging New Jersey's prohibition on same-sex marriage; and numerous death sentence appeals. Gibbons' personal involvement in the cases varies, but former fellows say he provides advice and frequently participates in moot courts. ("Having the former chief justice of the 3rd Circuit help moot you is tremendously helpful," notes one.) In conversation, Gibbons comes across as reserved, grandfatherly, even shy. Lustberg, the first Gibbons fellow, now serving as director of the program, says Gibbons leaves his retiring, scholarly persona outside the courtroom. "People who work with him are often surprised by the contrast between his personal way of thinking about legal issues and his courtroom advocacy," Lustberg says. "In the courtroom, you will see a very vigorous advocate. He will be passionate and strenuous for his convictions." * * * St. Louis Post-Dispatch April 20, 2004 IT'S MARINES' JOB NOT TO GET ANGRY By Ron Harris, of the Post-Dispatch One year ago, Post-Dispatch reporter Ron Harris and photographer Andrew Cutraro accompanied the 3rd Battalion, 7th Marines, during its invasion of Iraq and the ensuing war. The battalion returned to Iraq last month, and Harris and Cutraro rejoined it to report on the Marines' new mission. On Saturday, they were the only journalists with the unit during a daylong offensive that followed an ambush in Husaybah. Five Marines died in the fighting. http://www.stltoday.com/stltoday/news/stories.nsf/News/World/E1C0DFDEE6C300B9862 56E7D00158583?OpenDocument&Headline=It's+Marines'+job+not+to+get+angry HUSAYBAH, Iraq - Lance Cpl. Dustin Myshrall peered into the darkness through his night vision goggles, trying to keep up with the truck in front of him as the Marine convoy made its way down the treacherous stretch of road without headlights for security purposes. In the rear of his truck were the bodies of four dead friends: Lance Cpl. Michael J. Smith, Lance Cpl. Ruben Valdez, Lance Cpl. Gary VanLeuven and Cpl. Christopher Gibson; and the body of the company commander, whom he so much respected, Capt. Richard J. Gannon. They had all been killed hours earlier Saturday in a 14-hour battle with Iraqi insurgents who had ambushed the Marines early in the morning and fought with them deep into the night. Some of the enemy had fired at Marines and then hid behind children. In front of Myshrall was another truck, this one filled with Iraqi prisoners, their hands tied behind their backs, white blindfolds covering their faces. They were the men who that very day may have killed his friends and wounded 12 other Marines. For 90 minutes, Myshrall, 22, of Baton Rouge, La., would have to look at these men and be reminded that they were the people who were responsible for taking away his friends. And he wasn't supposed to get angry. In fact, it was his job and the job of Lance Cpl. Francisco Villegas, also a friend of the men in the back of Myshrall's truck, to get them to their destination safely. Thus is the dichotomy of what the Marines do here, and nowhere is that dichotomy more manifest than at the battalion detention center, where scores of Iraqis are kept prisoner by the same Marines they have tried to kill. They are supposed to feed them, give them water, make arrangements for them to say their daily prayers and walk them to an average five daily bathroom breaks. It is part of Staff Sgt. Drew Glazier's job to make sure that while the Marines are doing all that, their emotions don't overtake them and they try to do to the prisoners what the prisoners did to their friends. "It's tough, because some of the guys who work here have had a friend killed or wounded," said Glazier, 43, a Marine reservist who has worked for nearly 18 years as a correctional officer in Essex County, Mass. "We're not here to punish them," he said. "We're here to hold them. We're here to provide care, custody and control - and sometimes another 'C' that isn't in our mission statement: compassion." He knows that the Marines who rotate into the detention center from various infantry units don't come in feeling that way, and he must deal with that. "You keep their feelings out in the open," he said. "You don't hide it. You don't suppress it. I talk to them about it. I explain that we're going to treat them with dignity and respect, not because of who they are, but because that's who we are. "But these guys are Marines. They're very good at separating what we do here from how they feel. I've had two incidents where a detainee lunged at a guard, and the Marines handled it appropriately. I have not had to pull even one guard off a detainee." Along with Lt. Jesse Larca, Glazier oversees the Marines' detention center for the region of Al Qaim. Currently, they have 104 prisoners. Dozens more have passed through the facility since the Marines arrived here nearly two months ago. Most have been released back into their communities. The rest have been pushed further down the line for more interrogation or to be held as permanent prisoners. Glazier has drawn on his civilian experience to set up a booking system similar to the ones in the United States, where each inmate has a number and the numbers are connected to records and pictures to keep track of them. Inmates eat three meals a day, "the same thing as the Marines eat," Glazier said, and are afforded at least 4.5 liters of water daily. "That's my minimum standard," Glazier said, "and when it gets hot, they'll get them more." The prisoners are kept in makeshift cells made of wire and wood and topped with razor wire. Marines armed with shotguns loaded with nonlethal rounds watch them from two 12-foot-high guard towers. The Iraqis are not allowed to talk to each other. They are allowed out of their cells only for bathroom breaks, to wash or for interrogation. So far, Glazier said, the prisoners have been very well-behaved. "They've been very passive," he said. "The majority of what we do is housekeeping." Marines at nearby Kilo Company claim they hear the inmates screaming and crying at times when they are interrogated. But Glazier and members of the Marines' interrogation teams, called Humanint Exploitation Teams, say that is perception, not reality. There is never any physical abuse; international rules and strict orders disallow it. Glazier says he physically searches each inmate before and after interrogation, looking for any signs of abuse. If he finds any, he must report it. Staff Sgt. Justin Holder, an HET interrogator, said they are not allowed to physically harm a prisoner under the rules of the Geneva Conventions. They can use sleep deprivation, reduced food rations and screaming and yelling, but nothing else. Besides, said one HET member, information gained through torture would be unreliable because prisoners would say anything to relieve the pain. "If I'm pulling your fingernails out, you'll tell me that you wear women's clothes on the weekend," said one HET member. But they admit that they do create the perception that physical harm could occur, Holder said. They do it in part by yelling and screaming. "Perception is reality," said Holder, 32, of Murray, Utah. "If they perceive something is going to happen, that can be as effective as if it really did happen." Killed in action Marines have released the names of these five Marines killed Saturday in a daylong battle with Iraqi insurgents: Capt. Richard J. Gannon, 31, Escondido, Calif. Cpl. Christopher A. Gibson, 23, Ventura, Calif. Lance Cpl. Michael J. Smith, 20, Brooke, W.Va. Lance Cpl. Ruben Valdez, 20, Duval, Texas. Lance Cpl. Gary F. VanLeuven, 20, Klamath Falls, Ore. Reporter Ron Harris E-mail: ronharris6852@hotmail.com Phone: 314-340-8214 * * * Los Angeles Times: April 19, 2004 MARINE CORPS SNIPERS AIM TO STRIKE FEAR * With their 'One bullet, one kill' motto, the sharpshooters try to clear the streets and undermine insurgents in Fallouja, Iraq. By Tony Perry, Times Staff Writer FALLOUJA, Iraq -- Taking a short breather Friday, the 21-year-old Marine corporal explained what it was like to practice his lethal skill in the battle for this city. "It's a sniper's dream," he said in polite, matter-of-fact tones. "You can go anywhere and there are so many ways to fire at the enemy without him knowing where you are." Sniping -- killing an enemy from long distance with a single shot -- has become a significant tactic for Marines in this Sunni Triangle city as three battalions skirmish daily with armed fighters who can find cover among buildings, walls and trees. Marine sniper teams are spread in and around the city, working night and day, using powerful scopes, thermal imaging equipment and specially modified bolt- action rifles that allow them to identify and target armed militants from 800 yards or more. Sniping experts -- there are several here with the Marines -- say there may not have been such a "target-rich" battlefield since the World War II battle for Stalingrad, during which German and Russian snipers dueled for months. As a military tactic, sniping is centuries old; the first snipers used bows and arrows. Leonardo da Vinci is said to have been a sniper in fighting against the Holy Roman Empire. Weapons change, but the goal of the sniper remains the same: harass and intimidate the enemy, make him afraid to venture into the open, deny him the chance to rest and regroup. The Marines believe their snipers have killed hundreds of insurgents, though that figure alone does not accurately portray the significance of sniping. A sign on the wall of sniper school at Camp Pendleton displays a Chinese proverb: "Kill One Man, Terrorize a Thousand." "Sometimes a guy will go down, and I'll let him scream a bit to destroy the morale of his buddies," said the Marine corporal. "Then I'll use a second shot." In negotiations aimed at ending the standoff in the city, the insurgents have demanded the Marines pull back their snipers. A shaky truce exists between the Marines who surround the city and the fighters within the circle. But the cease-fire allows the Marines to carry out defensive operations within the city, which they define as, among other things, allowing fire on insurgents who display weapons, break the curfew or move their forces toward U.S. troops. Although official policy discourages Marines from keeping a personal count of those they have killed, the custom continues. In nearly two weeks of conflict here, the corporal from a Midwestern city has emerged as the top sniper, with 24 confirmed kills. By comparison, the top Marine Corps sniper in Vietnam had 103 confirmed kills in 16 months. "As a sniper your goal is to completely demoralize the enemy," said the corporal, who played football and ran track in high school and dreams of becoming a high school coach. "I couldn't have asked to be in a better place. I just got lucky: to be here at the right time and with the right training." The military has asked that sniper names not be published. Insurgents were said to have put a bounty on Marine snipers. A website linked to the insurgents attempts to provide information on snipers and their families. During the Vietnam War, the Viet Cong also put a bounty on snipers. "If you're going to be a sniper," said the corporal, "you just have to accept the things that come with it." The corporal was a scout during last year's battle to topple Saddam Hussein's regime, helping a sniper find a target and align the shot. This year, he's the shooter, assigned to a scout partner. He remembers his first time as a sniper in action. "The first time you get the adrenaline rush afterward," he said. "During the shooting, you have to take care of your breathing. It felt good to do my job, good to take a bad guy out." Marine snipers, whose motto is "One shot, one kill," fire from rooftops in crowded urban areas of Fallouja, as well as explore the city by foot. It sometimes takes hours to set up a shot, as the sniper hides in the distance, waiting for the opportune moment. The sniper rifle, a M-40A3, is a bolt-action model specially assembled at the Marine Corps armory in Quantico, Va. The scope magnifies to the 10th power. Some snipers give pet names to their rifle, taken from girlfriends or movie characters. The corporal, allowing himself a small laugh, has not. "I guess it's the gun that cannot be named," he said. "It's been good to me. I take care of it and it takes care of me." Marine officers credit the snipers, all of whom are enlisted men, with saving Marine lives by suppressing enemy fire and allowing their comrades greater freedom of movement. "The snipers clear the streets for us," said Capt. Douglas Zembiec. "The snipers are true heroes." Sniper teams have come under fire and suffered casualties. Marine intelligence suggests that the insurgents -- using Russian- and Chinese-made rifles and optics -- have their own sniper teams, but there have been no reports of Marines killed by sniper fire. The corporal grew up fishing and hunting -- he killed his first deer at age 12, with a bow and arrow -- and remembers trips in the backwoods of Canada with his father, an academic. Not ready for college, he enlisted in the Marine Corps and gained a spot in the elite sniper school at Camp Pendleton. An uncle was a Marine sniper in Vietnam. Unlike most Marines, the sniper sees his enemy before killing him. The enemy has a face. Most combatants get only a glimpse of their enemies. The distance is too great, the spray of bullets too rapid. But the sniper, with time to set up his shot, sees his victims more clearly through a powerful scope: their faces, their eyes, the weapons in their hands. And their expression when the bullet hits "their center mass." "You have to have a combat mind-set," the corporal said. Unlike other infantry troops, the sniper has greater confidence that his shot won't hit a civilian or a "friendly." The corporal hopes to get back home by late fall, in time to take his girlfriend to a college football game and go deer hunting with his father. "When I go hunting for whitetail, it's for food and sport," he said. "Here, when I go hunting, it's personal, very personal." If you want other stories on this topic, search * * * Newsweek: April 18, 2004 THE ROAD TO THE BRIG After 9/11, Justice and Defense fought over how to deal with suspected terrorists. How a new system was hatched By Michael Isikoff and Daniel Klaidman http://msnbc.msn.com/id/4767208/ April 26 issue - In September 2002, just before the first anniversary of the September 11 attacks, a group of senior Bush administration officials convened for a secret videoconference to make a difficult decision: what to do with six Americans suspected of conspiring with Al Qaeda. The Yemeni-born men from Lackawanna, N.Y., were accused of training at a camp in Afghanistan, where some had met Osama bin Laden. The president's men were divided. For Dick Cheney and his ally, Donald Rumsfeld, the answer was simple: the accused men should be locked up indefinitely as "enemy combatants," and thrown into a military brig with no right to trial or even to see a lawyer. That's what authorities had done with two other Americans, Yaser Hamdi and Jose Padilla. "They are the enemy, and they're right here in the country," Cheney argued, according to a participant. But others were hesitant to take the extraordinary step of stripping the men of their rights, especially because there was no evidence that they had actually carried out any terrorist acts. Instead, John Ashcroft insisted he could bring a tough criminal case against them for providing "material support" to Al Qaeda. On that day, at least, the attorney general won the debate, and the Lackawanna Six eventually pleaded guilty. It wasn't the first time, or the last, that top Bush officials would spar over such weighty legal issues. For government lawyers, the detention of foreign fighters at Guantanamo Bay, Cuba, hadn't been a tough legal call. After all, they were soldiers fighting on behalf of a hostile enemy, captured on the battlefield. But the administration hadn't anticipated that U.S. citizens might occasionally turn up in the mix. In the months after 9/11 there were fierce debates -- and even shouting matches -- inside the White House over the treatment of Americans with suspected Qaeda ties. On one side, Ashcroft, perhaps in part protecting his turf, argued in favor of letting the criminal-justice system work, and warned that the White House had to be mindful of public opinion and a potentially wary Supreme Court. On the other, Cheney and Rumsfeld argued that in time of war -- there are few limits on what a president can do to protect the country. "There have been some very intense disagreements," says a senior law-enforcement official. "It has been a hard-fought war." It's far from over. Officials say they eventually settled on "informal" rules to decide whether a detained American should be thrown into the brig or brought to trial. But Hamdi and Padilla have challenged their enemy-combatant status. Next week the Supreme Court will hear their arguments, in what could be the most profound legal issue in the terror war: whether the president can lock up American citizens suspected of terrorist links indefinitely, without charges. This week the court will also hear a case to decide if foreign detainees at Guantanamo have any legal rights. In a speech earlier this year, White House counsel Alberto Gonzales tried to reassure critics, saying the White House had an "elaborate" and "painstaking" system to identify enemy combatants. But it didn't start out that way. In truth, the enemy combatants policy evolved in fits and starts. In the spring of 2002, U.S. soldiers discovered Hamdi, a Louisiana-born, Saudi-raised U.S. citizen, among the hundreds of ragtag Taliban fighters sent to Guantanamo. They realized they had a problem. The other detainees could be tried before military tribunals. But Bush's order authorizing the tribunals had exempted U.S. citizens -- a decision intended to disarm critics. Hamdi was flown to a naval brig in Norfolk, Va., while administration lawyers tried to figure out what to do with him. When a local public defender who read about Hamdi in the newspaper petitioned to meet with him, an assistant U.S. attorney made a novel argument in court: Hamdi was an "unlawful enemy combatant," and had no right to counsel. Administration lawyers concede that there was a seat-of-the-pants quality to the way events unfolded. "There is a sense in which we were making this up as we went along," says one top government attorney. "You have to remember we were dealing with a completely new paradigm: an open-ended conflict, a stateless enemy and a borderless battlefield." Before long, administration officials would extend the battlefield to Chicago's O'Hare airport, where agents picked up Jose Padilla on May 8, 2002. The Muslim convert was arrested while returning home from Pakistan, where he had allegedly met with a top Qaeda operative and planned to set off a dirty bomb in the United States. He was named a material witness and appointed a lawyer. But prosecutors soon realized they didn't have enough evidence to charge him with any crime. To avoid releasing him, Bush decreed on June 9 that Padilla, too, was an enemy combatant. He was sent to a military brig in South Carolina. At first, administration officials saw no problems with Padilla's treatment. But as the months wore on, Justice lawyers became increasingly uneasy about holding him indefinitely without counsel. Solicitor General Ted Olson warned that the tough stand would probably be rejected by the courts. Administration lawyers went so far as to predict which Supreme Court justices would ultimately side for and against them. But the White House, backed strongly by Cheney, refused to budge. Instead, NEWSWEEK has learned, officials privately debated whether to name more Americans as enemy combatants -- including a truck driver from Ohio and a group of men from Portland, Ore. Last month, as the Supreme Court arguments approached, the White House backed off slightly and allowed Padilla to speak with his lawyer -- but only in the presence of military handlers. Padilla wasn't even allowed to tell his lawyer how he was being treated. The administration hoped the meeting would show the court that it isn't indifferent to the rights of Americans, even those suspected of terrorism. The justices will have to decide if the concession was too little, too late. * * * Atlanta Journal-Constitution: April 18, 2004 GUANTANAMO CAPTIVES TO GET DAY IN COURT THIS WEEK By Ron Martz, The Atlanta Journal-Constitution http://www.ajc.com/news/content/news/0404/18gitmo.html Some have been behind bars more than two years, some as little as two months. For those prisoners being held at the controversial Guantanamo Bay Naval Base prison in Cuba as suspects in the U.S. war against terrorism, this week may mark a major turning point in their captivity. The U.S. Supreme Court on Tuesday will hear arguments in two cases addressing the legal rights of foreign fighters held at the rocky, wind-swept southeastern edge of Cuba. The Bush administration will argue that these fighters, referred to by the government as detainees rather than prisoners, have no legal standing in U.S. courts and that the courts have no jurisdiction over Guantanamo because it is foreign territory. If the court rules in favor of the prisoners, it would give those who have not been charged access to lawyers and could upset the administration's plans for military tribunals. Since the start of the war on terrorism following the Sept. 11, 2001, attacks, Pentagon officials say they have screened more than 10,000 people in Afghanistan as possible enemy combatants. Fewer than 1,000 have been sent to Guantanamo, beginning in January 2002, for questioning and possible trial before a military tribunal. About 595 detainees are on the base, most of them in a closely guarded open-air seaside compound known as Camp Delta. Only two detainees have been charged with crimes relating to terrorism: Ibrahim Ahmed Mahmoud al Qosi of Sudan and Ali Hamza Sulayman al Bahlul of Yemen. They have been moved to another facility on the base, known as Camp Echo, along with three other prisoners who have not been formally charged. One, David Hicks, is Australian. The names and nationalities of the other two have not been made public. Air-conditioned cells Camp Echo is being referred to as a "precommissions" compound, where those awaiting trial before the tribunal, or commission, will be held. It is separate from Camp Delta and can house 30 prisoners. Each is assigned to an air- conditioned cell measuring 16 by 10 by 10 feet -- larger than the 8-by-7-by-8- foot cells at Camp Delta. At Camp Echo, detainees charged and awaiting trial are separated from the general prison population and have better access to their lawyers, said Paul Butler, who heads the Pentagon's office of special operations and low-intensity conflict, in a recent briefing. Qosi and Bahlul are charged with conspiracy. Qosi is identified in the charges against him as a former bodyguard for terrorist leader Osama bin Laden and paymaster for the al-Qaida terrorist network. Bahlul is alleged to have been a propagandist for bin Laden. No trial date for either has been set. The proceedings against them are to be held on the first floor of a yellow, two-story building near one end of Camp Delta. The Pentagon will not release the names of other prisoners, but two top al-Qaida operatives, Abu Zubaydah and Khalid Shaikh Mohammed, are believed to be housed at Guantanamo. Zubaydah, captured two years ago in Pakistan, has been described as a member of bin Laden's inner circle. Mohammed, also captured in Pakistan, is believed to be the mastermind behind the Sept. 11 attacks. The population at Camp Delta has fluctuated but has usually ranged between 600 and 650. At one time, the prisoners represented 40 countries. The only two Americans held as suspects, Jose Padilla and Yaser Esam Hamdi, are at the Charleston Naval Base. In a bargain with prosecutors, a third American, John Walker Lindh, who was captured in Afghanistan, has pleaded guilty to charges of being in the Taliban army and carrying weapons to avoid a more serious charge of conspiracy to murder U.S. citizens. Suicide attempts In October 2002, the Pentagon began releasing some of the detainees it believed had provided as much information as they could and were no longer a threat to U.S. interests. The latest group, of 15 from Afghanistan, Turkey, Tajikistan, Sudan, Iraq, Jordan and Yemen, was released April 2. That brought to 146 the total released to their home countries. All but 12 are essentially free. Those 12 were transferred for what the Pentagon calls "continued detention" in other countries: four to Saudi Arabia, seven to Russia and one to Spain. Among those released were three people under age 16. The Pentagon would not provide specific ages or home countries, but it said two of the three were captured during raids on Taliban camps, while the third was taken into custody while trying to obtain weapons to fight U.S. forces. Once their ages were determined, they were held in a separate facility, according to the Pentagon statement. Officials at Guantanamo have reported 34 suicide attempts by detainees since the camp opened, but none since August. About 15 percent of the prisoners are believed to suffer from mental problems and are being prescribed anti- depressants. News services contributed to this article. * * * April 18, 2004 WAR FEARS SPAWNED SUPREME COURT'S BIGGEST LOSERS Justices again face an executive branch arguing for national security By Mark Curriden, Special Contributor to The Dallas Morning News http://www.dallasnews.com/sharedcontent/dws/dn/opinion/sundayreader/stories/0418 04dnedilosers.db987.html Eugene Debs, Richard Quirin and Fred Korematsu are names buried in dusty old law books. One was an American turned political subversive, another was a suspected saboteur, and the third guilty of being a Japanese-American. Each was jailed by wartime presidents who viewed them as threats to national security. Each appealed to the U.S. Supreme Court, claiming their constitutional rights were violated by a power-hungry executive branch. Despite strong legal arguments, they all lost their cases. Those three decisions are now viewed by legal scholars as among the worst opinions ever issued by the Supreme Court. Law professors teach them as prime examples of justices' allowing themselves to be misguided by the executive branch, making decisions based on fear or intimidation and turning their backs on their duty to uphold and protect the Constitution. "It is fair to say that the Supreme Court has not exactly shown great courage in protecting constitutional rights during times of crisis," says University of Georgia law professor Eugene Wilkes. Despite being universally criticized as bad law, the three cases have never been technically reversed by the Supreme Court and remain the law of the land. In fact, the Bush administration cites those decisions as the legal precedent supporting its actions in the war against terrorism. In a series of potentially monumental cases scheduled to be argued at the Supreme Court during the next two weeks, the federal government says the three old cases demonstrate that the judicial branch should defer to the executive branch during a national emergency, even if that means civil liberties are set aside for the sake of national security. The current cases before the Supreme Court involve the fate of 660 detainees at the Guantánamo Bay Naval Base in Cuba and two U.S. citizens being detained in near isolation in a military prison in Charleston, S.C. The Bush administration has labeled the detainees, including the two Americans, as enemy combatants, and claims that the president can hold them indefinitely without allowing them to see a lawyer and denying them access to the federal courts because they are threats to national security. The cases of Yaser Hamdi and Jose Padilla, both U.S. citizens, have drawn the most attention. Mr. Hamdi, who was born in Louisiana, was captured by U.S. forces in Afghanistan as he fought with the Taliban. Mr. Padilla, a Chicago native, was initially arrested by the FBI and held as a material witness. Before his lawyer could seek a federal court hearing, the Bush administration declared Mr. Padilla an enemy combatant and outside the jurisdiction of the federal courts. How has the Supreme Court historically handled constitutional conflicts during times of national crisis? Not very well. "There are many examples in history when the Supreme Court should have stood up to the executive branch but did not," says John Attanasio, dean at Southern Methodist University's Dedman School of Law. Adds University of Houston law professor Leslie Griffin, "In times of war is when we know personal rights tend to be violated most often, and that is when we need the Supreme Court to be more diligent and courageous in protecting our Constitution. Unfortunately, that is not our history." The case of Eugene Debs arose when President Woodrow Wilson ordered authorities to arrest him and scores of other newspaper publishers for publicly opposing America's efforts in World War I. "There was this hysteria throughout the country that there was an internal threat from anarchists who wanted to overthrow the American government," says Tom Baker, a law professor at Florida International University in Miami. "So the U.S. attorney general rounded up thousands of dissidents ... recent immigrants with funny names, strange religions and strange politics. "What these guys did make John Ashcroft look like a raging liberal or a member of the ACLU." In 1917, the justices sided with President Wilson, saying constitutional guarantees of free speech and political dissent take a back seat during times of war. Then came World War II and the cases of Richard Quirin and Fred Korematsu. Mr. Quirin was one of eight German saboteurs sent by Hitler to the U.S. to wreak havoc. The evidence was shaky as to whether the saboteurs were committed Nazis or had accepted the mission just to escape Germany. One of the saboteurs, upon landing in New York by boat, immediately contacted the FBI in June 1942 to inform the U.S. government of the plot. Within days, the other men were also in custody; two were U.S. citizens. Because the evidence against the men was so weak, President Franklin D. Roosevelt established a secret military tribunal that required a lower standard of evidence to guarantee a conviction and death sentence. Mr. Quirin filed an appeal with the Supreme Court. Before the hearing, a handful of the justices met secretly with President Roosevelt's aides, who told them that for the sake of national security, the president needed the court to go along. A couple of justices were told the president would have the eight men shot if the Supreme Court didn't rule in his favor. When the eight were convicted and sentenced to death, the Supreme Court unanimously upheld the government's actions. Legal scholars who have studied the Quirin case say it is disturbing how improperly influenced the justices were by fear and intimidation from the executive branch. The same was true two years later when the Supreme Court confronted the case of Fred Korematsu, a U.S. citizen among the thousands of Japanese ancestry interned in camps during World War II. President Roosevelt told the justices that Mr. Korematsu threatened national security, even though there was no supporting evidence. The Supreme Court sided with the administration in an opinion that has been universally denounced since. "But remember, the justices are creatures of their time," Mr. Baker says. "They are people with fears and worries just like the rest of us. It's easy for us to second-guess them now." The same is true today, he says. These justices knew people who died in the 9-11 attacks. And they've had to evacuate the Supreme Court building due to anthrax scares. "This current Supreme Court is very cognizant of the criticism of those past decisions, such as Korematsu and Debs, and how those decisions undermined the credibility of the Supreme Court as an institution," Mr. Attanasio says. He points out that the Supreme Court has ruled against the executive branch: During the Korean War, the justices said President Harry Truman's efforts to federalize steel mills were illegal. Professor Baker agrees: "These justices are very self-conscious of their place in history. They do not want to be remembered as the Korematsu and Quirin court of the 21st century. "This Supreme Court has been bold before in tackling the most controversial issues of our day. Now let us see if they will be bold again." [ Mark Curriden is a lawyer and director of media relations at Vinson & Elkins in Dallas. ] * * * April 18, 2004 THE SECRET OF THE B-29 A DAUGHTER DISCOVERS WHAT REALLY HAPPENED * At last, the Internet reveals how Al Palya died. Why had it been kept secret? Because the government wanted the legal right to be more secretive. By Barry Siegel, Times Staff Writer SECOND OF TWO PARTS http://www.latimes.com/news/nationworld/nation/la-na- b29parttwo19apr19,1,6146905.story There were days, growing up in her family's New Jersey home, when the attic beckoned to Judy Palya Loether. That's where her mother had stored every mention of Judy's late father. Elizabeth Palya had no time for grieving or falling apart after her husband died in 1948. She remarried three years later, and after that didn't even leave photos around the house. She didn't talk much about Judy's father, either. Once on Veterans Day, Judy asked whether her dad was a veteran. "In a way," her mom said. Judy knew only that Al Palya had died in the crash of an Air Force B-29 in Waycross, Ga. She knew there'd been a lawsuit and thought they'd won. She carried deep pride about her father, a vision of a fabulous person. Whenever people did talk about him, they went on about his genius, his enthusiasm, how he was a great musician, a carpenter, a photographer. Judy's family still lived in Haddon Heights. Her stepfather, William Sacker, was a butcher. Her mom taught home economics and carried herself with a brave grace that drew admiration from all who knew her. They had a Dutch Colonial house on a quiet street with a big backyard. Upstairs in the detached garage, Judy's brothers, six and ten years older, made booby-trapped forts while she practiced birdcalls -- oy-oh-oit -- with the boy next door. In those days, Judy didn't know what she was missing, not having her father. There was always a daddy in the house, after all. She wasn't aware of loss. Yet one of Judy's childhood friends sensed something. Susan White felt there was an "elephant in the closet" at Judy's house. She believed that the elephant was Judy's father. One afternoon, she and Judy visited the attic. Only with great reluctance did Judy point out her father's things. In time, the family moved to Cherry Hill, N.J. Judy's mom and stepfather now had their own daughter. Judy became aware that this new sister, six years younger, had a different last name. Later, she came to feel that in her stepdad's eyes, she and her two brothers weren't the same as his own daughter. How hard is it, she wondered, at least to pretend you love your kids equally? At 20, Judy married a computer specialist and left for Illinois, then Spain, then Massachusetts. In 1975, when she was 27, she gave birth to her first son. Loving her own child brought to mind her father. She began to grasp what she'd been missing. Judy bore a second son. With her boys, she spent more and more time at her mother's house. They'd go in the summer and on vacations. During those stays, Judy often found herself climbing up to the attic. It was a cool, comfortable place to visit. One morning, she opened a trunk full of costumes and other neat stuff. By nature, she liked to put things in order, so she set to work. Soon enough, she came across newspaper articles about her father. She read them all. She also looked through her dad's notebooks, which were full of arcane diagrams, computations and terms. She found most of them incomprehensible. Shoran. Rheostat. Banshee. What did they signify? It depended on how much you wanted to figure out, Judy reasoned. She knew so little then. She didn't know the courts had awarded her mother and two other widows compensation after government lawyers refused to turn over an accident report about the fatal B-29 crash. She didn't know the U.S. Supreme Court had reversed those judgments in 1953, after government lawyers declared that the accident report contained "military secrets" so sensitive not even judges should see them. She didn't know this Supreme Court ruling, U.S. vs. Reynolds, had formally established the government's "state secrets" privilege -- a privilege that a growing number of legal experts had come to believe was based on a falsehood. Judy Palya Loether knew only that she'd lost her father when she was 7 weeks old. He was a mystery to her. Who would she be now if she'd had him, if she'd had a daddy who loved her and made her feel like his darling girl? Sifting through documents in her mother's attic, she sought connection to her father. It had not yet occurred to her to ask the Supreme Court to correct a decades-old error. She was trying only to find her own past. On occasion, in that cool, quiet attic, she held up certain documents, the ones stamped "secret." That's what truly fascinated her: the word secret. Government's 'Absolute Privilege' To this day, U.S. vs. Reynolds represents the Supreme Court's only substantive examination of the state secrets privilege. Law professors consider Reynolds the judicial foundation of national security law. On paper, Reynolds offered what many consider to be a reasonable compromise between the public's right to information and the government's need to keep secrets. How that compromise came to be applied is what troubles a number of lawyers and legal experts. Their objections often echo the concerns voiced half a century ago by William Kirkpatrick and Albert Maris, the trial and appellate judges who, in finding for the three widows, declared it "contrary to sound public policy" to let the government decide what could be kept secret. In the end, critics maintain, Reynolds put judges in the position of ruling blindly, without knowing the contents of requested documents. Amid such uncertainty, government lawyers found it hard to resist invoking state secrets in all sorts of cases. To some opponents, the impulse to protect military secrets began to look like the impulse to cover up mistakes, avoid embarrassment and gain insulation from liability. What was meant as a shield to protect national security, plaintiffs' lawyers started complaining, now was being used as a sword to kill litigation. At the least, one law professor observed, the interests of the administration in power sometimes seemed to get confused with the interests of the nation. The use of Reynolds started slowly but grew: The government invoked the state secrets privilege only five times between 1953 and 1970, then 50 times between 1970 and 1994. The current Bush administration has formally invoked it at least three times. The scope of what constitutes a state secret has also expanded, from military technology to all sorts of domestic intelligence operations. Even unclassified information has become subject to national security claims. Government lawyers argue that judges can't see the whole picture, can't tell when separate pieces of seemingly innocuous information might be gathered into a revealing "mosaic." Over the years, the types of information protected by the state secrets privilege have included: alleged collusion between defense contractors; alleged malfeasance and incompetence by contractors; alleged civil rights violations by the FBI and CIA; the purchase, insurance and inspection records of a government mail truck involved in an accident; and an FBI file on a sixth-grade boy who received a large amount of mail from foreign countries because he was writing an encyclopedia of the world as a school project. In 1975, a group of Vietnam War protesters claimed the FBI and CIA conducted intelligence operations against them, but they had to drop the lawsuit after a district court upheld the government's state secrets claim. In 1990, families of 37 crew members killed when Iraqi missiles struck the frigate Stark sued contractors responsible for the ship's antimissile system, but the United States again successfully invoked the state secrets privilege. In 2000, a similar claim of privilege stopped a gender discrimination lawsuit filed by a CIA employee. In early 2003, yet another claim killed a suit filed by a senior engineer who'd maintained that a defense contractor had submitted false test results on an antimissile vehicle. Although these types of claims have multiplied, such direct invocations of the state secrets privilege are by no means the broadest legacy of Reynolds. Far more often, Reynolds is simply cited or referred to in courtroom arguments and legal briefs, producing what George Washington University law professor Peter Raven-Hansen calls an "atmospheric effect." By waving the Reynolds flag in the background, government lawyers have learned they can often gain a degree of judicial deference, especially since the 9/11 terrorist attacks. Such deference allowed them to confine the "enemy combatants" Yaser Esam Hamdi and Jose Padilla for months without access to lawyers. It encouraged them to keep accused terrorist Zacarias Moussaoui from contacting other accused terrorists. And it permitted them to hold hundreds of detainees without charges or judicial review at the U.S. Navy base at Guantanamo Bay, Cuba. A handful of judges have started to question the Bush administration's claim to this type of unilateral power, and the Supreme Court will weigh in soon. Judicial deference, though, is still what lawyers and professors point to as the greatest consequence of Reynolds. Faced with ominous claims about national security, judges today, as in 1953, often find it hard to deny the government. What the Department of Justice sought 50 years ago, it now has firmly in hand. Atty. Gen. John Ashcroft did not reply when Sen. Charles E. Grassley (R-Iowa) and Rep. Howard L. Berman (D-North Hollywood) wrote him in late 2002 to express concern about abuse of the state secrets privilege. As it happens, just seven weeks earlier he had invoked it again, in a case involving an FBI whistle-blower who'd alleged defects in the agency's translation program. "To prevent disclosure of certain classified and sensitive national security information," a Department of Justice news release advised, "Attorney General Ashcroft asserted the state secrets privilege.... The state secrets privilege is well-established in federal law.... This privilege has been applied many times to protect our nation's secrets from disclosure.... It is an absolute privilege that renders information unavailable in litigation." 'I Can Tell You What Happened' One day in 1977, in her mother's attic, Judy Palya Loether came across an old news article about Eugene Mechler, a civilian engineer who'd survived the B-29 crash. It said he lived in Earltown, part of Cherry Hill -- right nearby. On impulse, Judy looked him up in a phone book and dialed a number. Mechler's daughter answered. It turned out Mechler split his time between Maine and Florida. The daughter gave Judy an address. Mechler wrote first, having heard of Judy's inquiry from his daughter. His handwritten words sprawled across the page. I was in a B-29 accident in which Al Palya was also involved. Do I have the right Palya? You called my daughter to ask for more details on the accident. I can send you a copy of the report I made, and if you wish I can look for the newspaper accounts.... I think you will find my account interesting. Al was sitting in the nose gunner's position in front of the pilots. I was in the mid- section aft of the bomb bay. So I didn't see anything of him after the plane began to have trouble. But I can tell you what happened to the plane. Be glad to answer your questions. Judy wrote back, asking about the fatal flight, the mission, her father. Mechler responded, his scrawl interspersed with assorted sketches. I am sure the plane was not sabotaged. Quite a few B-29s had the same problem about this time.... I knew your father only as a business associate.... Your father was a capable administrator and engineer.... The only other thing I know is that your father had a woodworking shop in the garage with several power tools. This was one of his hobbies. The [Banshee project] equipment on the plane was what we were supposed to improve. It was no more or less secret than any other experimental equipment classified as "Secret." ... Our particular project was probably never declassified. Judy read Mechler's letters with interest but didn't know what more to ask. It seemed to her this well had run dry. The years 1979 to 1994 were busy ones. She had two children to raise and a host of volunteer activities to tend, including work at the local schools, the Cub Scouts, the county fair and a garden association. There was her mother to help as well: In 1992, widowed a second time, burdened by taxes, living on a small pension, Betty ran out of money and had to give up her Cherry Hill house. When Judy was with her aunt, Al Palya's younger sister, she would ask questions about her dad. She never questioned her mother, though. Nor did she talk to her brothers about their father. She couldn't say why. It was just a tender area, something they had to put aside. And once you put it aside, you didn't know when to bring it up. For that matter, Judy found it hard to have any intimate conversations with her mother, whom she considered an old-fashioned Victorian in many ways. Still, Betty had always made Judy feel loved. She'd seen her mother cry just once -- when one of Judy's brothers left to join the Marine Corps in Vietnam. Betty had devoted her life to her children, waving her wand, trying to make everything beautiful. Not even a magic wand, of course, could cure everything. Life became more complex as you grew older. The hurts piled up, the patterns started to appear, if only because you'd been around long enough to recognize them. Books provided one form of solace to Judy. Then, in 1995, the Internet began to take form. Sitting before her new monitor one day, she typed in her maiden name, Palya, and started tracing her family's genealogy. She was in her mid-40s then -- older, she realized, than her father was when he died. In 1996, she wrote a letter to his close colleague Walter Frick, who had escorted Al Palya's body home from Waycross. Writing back, Frick reminisced about the sad trip from Georgia, calling Judy's dad "the friendliest person I ever knew." Time passed. One day in 1999, at her computer, Judy typed in her father's full name. That took her to a page about Shoran, a military radar guidance system mentioned often in his workbooks. On EBay, she found an old RCA advertisement for Shoran, and bought the ad for $7. More months passed. Judy kept typing in different combinations of words, seeing where they might lead. Finally, one day in February 2000, she happened to type in "B29 + accident." In an instant, that took her to a website titled, in bold black capital letters, "USAF & USAAF AIRCRAFT ACCIDENT REPORTS 1918-1955." Below that was a second line: "Complete accident reports from 1918 through 1955 now available." At the bottom of the page, Judy found a fuller explanation: "There were thousands of aircraft accidents in early U.S. Air Force history.... Air Force regulations denied any public access to those records until 1996, when they were changed to allow unlimited access to all reports up to December 31, 1955. It's because of this we're able to offer these complete investigation reports!" Judy stared at her computer screen. Oh my God, she thought. Wow. She hadn't known there was such a thing as an accident report. She still didn't know the government had refused to produce it 50 years ago. All she knew was that there had been a lawsuit and money paid to her mother. She thought her mom had won. What interested her now wasn't why the plane crashed. As before -- as always -- she wanted to know why her father was on the plane. She wanted to know what was so "top secret" about his work. She e-mailed the operator of the website, who had bought the old microfilmed reports and started a small business selling them. In return for $63, she received 220 pages and 15 photographs. By the end of February, Judy Palya Loether held in her hands the Air Force accident report that her mother and the patrician Philadelphia lawyer Charles Biddle had so strenuously but vainly sought from the government half a century before. For a moment, she hesitated to pull it from its large envelope, fearing what gruesome details it might contain. But pull it she did. As she began to read, she felt disappointment. There was nothing about confidential research being done on the plane. In fact, other than a reference to removing secret equipment from the crash site, there wasn't anything about her father's project. Shoot, Judy thought. This doesn't have what I want. She kept reading though, and as she did, her consternation grew. While this report didn't describe anything secret, it seemed to involve all sorts of mistakes and negligence. It looked to Judy as if an awful lot of bad things had happened in that plane. She understood human mistakes, such as the pilot turning off the wrong engine. But the maintenance supervisors -- why hadn't they complied with those technical orders? Why hadn't they installed heat shields to fix the B-29 engines' fire hazard? Finding an Ally and Digging Deeper Despite its disturbing elements, something about the accident report gave Judy Palya Loether great comfort. Her father no longer seemed so unreachable and unknowable. She went back to the old newspaper articles and studied them. What jumped out was the name Susan Brauner, daughter of William Brauner, a civilian engineer who'd flown that day with Judy's father. According to the papers, Susan was 4 years old when her father died in the B-29 crash. It occurred to Judy: There was a woman out there, a mom close to her own age, who'd grown up with the same situation. No daddy; a daddy who had died on that plane. Again, Judy searched on the Internet, typing in Susan's name. She came up with 20 possibilities and sent them all postcards. My name is Judy Palya Loether.... My dad was killed in a U.S. Air Force B-29 crash in October 1948.... I'm looking for the Susan Brauner who lost her Dad in the same plane. Ten days later, she found a note in her mailbox from the right Susan Brauner. She lived in the same state, Massachusetts. She had a phone number. Judy dialed it. I found an accident report, she told Susan. There's lots of negligence. This interested but did not overwhelm Susan Brauner. Finding Judy Palya Loether's postcard in her mailbox had been more of a curiosity than a thunderbolt. She was 55 then, and had a sister, Cathy, born after their father's death. They'd talked often in the Brauner home about their lost father, so he was never a mystery. Susan's mother, Phyllis, had not remarried. She'd earned a doctorate in analytical chemistry and had enjoyed an honored career as a professor at Simmons College. All the same, Phyllis Brauner had forever wrestled with limited funds and unanswered questions. The family twice had filed Freedom of Information Act requests about the plane crash, only to receive blacked-out documents. A void had never entirely been filled. Judy and the Brauner family -- Susan, Cathy and Phyllis -- agreed to meet for lunch at the Wellesley Inn, which offered a staid charm in the middle of a college town. The Brauners arrived first. Twenty minutes late, Judy bustled in bearing two large canvas bags. She'd suggested they bring photos of their fathers. The Brauners offered one; she offered several, including one in a frame. She also offered presents -- homemade soaps with shells set in them. Susan considered this thoughtful, but told herself: First let's see who you are. From her bags Judy pulled a pile of documents, including copies of the accident report. She talked about the report as she handed it out. The Brauners listened rather than read. Judy started with a factual account but grew emotional as she spoke. Although Susan did not share Judy's righteous indignation that day, she did feel it important to hear all this, to know how her father died. So did Phyllis Brauner. At 83, she found it hard to get around, but had been adamant about walking into this dining room, however slowly. She grew upset listening to Judy's account of negligence. If the Brauners focused on anything, other than being polite to Judy, it was this negligence. The lack of national security secrets didn't draw much conversation. Judy still didn't know there'd been a pivotal battle with the government over the state secrets privilege. Not until this lunch did she even know there'd been a Supreme Court case. When Susan Brauner told her, she felt stunned. As soon as she got home, she looked up U.S. vs. Reynolds on the Internet. It wasn't easy to read all the legalese. Still, it seemed clear to Judy that the justices were talking about an accident report full of national security secrets. No, Judy thought. That's not in the report. It's not there. Now she was full of new questions. Once more she read through her pile of newspaper articles, court documents and correspondence. She laid everything out in chronological order. She forced herself to digest the legalese. She tracked the process as it unfolded through the district court, the court of appeals, the Supreme Court. Clearly, the Reynolds decision was all about national security. But she had the accident report right in front of her, and it contained nothing related to national security. No longer was Judy thinking about negligence. Now she was thinking: What's going on here? At Last, an Answer Judy Palya Loether turned back to the Internet to do more research. She also wrote once again to the surviving engineer Eugene Mechler. He responded. I often lie awake at night thinking about the B-29 crash.... Most if not all the civilian passengers didn't know enough.... I didn't know where the escape hatch in the bomb bay wall was located.... I remember thinking my wife was six months pregnant. "Poor Alice, this is going to be tough on her!" All my life God has watched over me and this was one more instance ... In a second letter, Mechler repeated that thought: I realize that it was only God's looking after me that saved me from the accident. I calculated that if it had taken me 10 more seconds I would be dead. Judy stared at those words. She couldn't help it, they irritated her. God saved Eugene Mechler? Then why not her father? Something else gnawed at her. Why did those top government officials lie? Why on earth? There hadn't been a lot of money involved, not for the United States government. The federal district judge had said, if you don't want to show the accident report, pay the money. The government could have just done that. Judy didn't understand why the secretary of the Air Force and the judge advocate general would instead lie to the Supreme Court. There was a difference between the pilot making a mistake under stress and these guys sitting in a conference room deciding. Often Judy had an image in her mind of that room, of those two high officers signing false affidavits. She didn't know where a person got the wherewithal to lie before the Supreme Court. In the late spring of 2000, Judy decided to send an e-mail to the Philadelphia law firm that had represented her mother 50 years before. I'm researching the circumstances of my father's death, she wrote to Drinker Biddle & Reath. Your firm represented my mother. Do you have any files? Do you know of any lawyers who might help me? Charles Biddle died in 1972, but the firm still bore his name. Judy's message drew attention. The lawyers couldn't find the relevant case files, though. They'd moved twice and thrown out many aging documents. They found only a card showing that they indeed had handled the case. They wrote Judy back advising her of this. Because she seemed focused on a negligence claim, they provided the names of several aviation lawyers. Judy and the Brauners tried vainly to interest some of them. Judy's agitation deepened. That fall of 2000, her mother died, and then that December so did Phyllis Brauner. Soon after came word that Eugene Mechler was gone. Those with memories were disappearing. The passage of time pressed on Judy. At the end of 2001, she drove with a friend to Florida, where their families spent New Year's Eve. Studying a map, she saw their route home would take them close to Waycross. She reexamined old news stories that mentioned the Zachry family farm. On a computer, she found a phone number for one of the Zachrys. She called him. Bernard Zachry answered -- the boy who'd been 6 years old on the day of the plane crash. Right off, he started recollecting. I was 6. I was on the school playground. Parts of the plane fell nearby. Mom came to get me. We'd tied a little girl to a tree. We left her on the tree ... Judy next called Bernard's brother Michael, who'd been 4 that day. He remembered running crying to the house. Then she called their sister Millie, who in 1948 hadn't been born yet. They all arranged to meet for lunch at an Applebee's in Waycross. When Judy and her Florida friend got there, they found no fewer than 15 Zachrys waiting -- children, spouses, everyone. Bernard and Michael's father, well over 80, couldn't talk or hear very well, but the others chatted away. Judy brought out the accident report and photos, which intrigued them. The elder Zachry gave her an aerial photo of his farm at the time of the crash. On it, Bernard drew where the plane's parts had landed. By the time lunch was over, they were all nearly crying. Then Bernard's sister, Millie, took Judy and her friend to the farm. After giving them a golf-cart tour and providing refreshments, she escorted Judy to the spot where the B-29 had crashed. What had been pasture half a century ago was now densely wooded. Judy asked to be alone. She plunged into the dark forest. High branches offered a sheltering canopy. She sat down on a tree stump and looked around. Stumps and trunks and branches. This was the edge of the Okefenokee Swamp, a marshy, messy place. Judy would later talk about this moment to every publication that called, including the Courier Post, the local New Jersey paper that for years landed daily on her family's doorstep. OK, she thought. Something big should happen. What's it going to be? On her mind just then was how nice the Zachry family had been to her. To have a weird person on their farm, sitting out here, her father dead more than 50 years. She had thought maybe they wouldn't care, would just say, "It happened over there." Instead -- 15 Zachrys! Judy felt hugely loved. She felt enveloped by love, overwhelmed by how the Zachry family was treating her. Then she found that she could see the sky through the trees. She began to think of her father. It distressed her to think of him falling to earth. Better if he'd been found in the plane. It came not as a bolt or epiphany, only a sense: Here on this stump, Judy finally felt as if she'd found her father. He no longer was a mystery. Al Palya had become real to his daughter. She felt connected to him. Utterly connected. She tried to imagine his thoughts in those last moments. Who will take care of my family? Yes. Judy just knew. He was thinking of her; he loved her. Here she was, 53 years old, and she hadn't gotten it until now. 'We Are Intrigued With the Cause' Back home, Judy Palya Loether decided to find Patricia Reynolds, the third B-29 widow in U.S. vs. Reynolds. From old correspondence, Judy knew she was now Patricia Herring. Judy sent postcards to 30 Herrings in Indianapolis. Within days, a card came back saying, "I'm really impressed that you have been able to track me down." Patricia Reynolds Herring was 74 then. She'd been married to her second husband, Don, for more than 50 years and had three grown children. She'd had a richly varied career as a school volunteer, Head Start organizer, employment agency manager, school district program director and hospital coordinator. Late in life, she'd also become an accomplished painter of watercolors. Hearing from Judy and reading the accident report opened the door to a long-buried past. What she read upset her; she hadn't known Bob Reynolds was conscious as the plane plummeted. Still, she welcomed Judy's inquiry, for it gave her the chance to go through a process she'd never started. She'd gone straight into denial on the day of the crash, shedding no tears, treating the tragedy as if it hadn't happened. She'd never met, spoken to or heard from the other two widows. Yet Bob Reynolds -- sweet, glowing Bob -- had always been a ghost in her house. That spring of 2002, Judy also called Susan Brauner and said, "I want to sue." Again they sent letters to lawyers. Some didn't answer, others declined to take their case. Then the women found a website about their mothers' old lawyer, Charles Biddle. He had been brilliant before the Supreme Court, Judy felt, and had lost only because the government lied. What a shame he couldn't know this. A notion seized her: His law firm should challenge U.S. vs. Reynolds. Judy turned a second time to Drinker Biddle & Reath. At its website, she found a form. She typed out a message, trying not to ramble, not to fume. She explained who she was. She explained about an accident report that contained no national security secrets. This time, Judy received an e-mail in late July from the law firm's then-head of litigation. "I am interested in following up with you about the Reynolds case," wrote Wilson M. Brown III. "This was well before the time of most of us, but the past of this firm means a great deal to all of us who carry on in its name, and we are intrigued with the cause you have outlined." Brown wanted to see the accident report. Soon after, he wanted to set up a conference call. In November 2002, with members of all three families on the line, Wilson Brown introduced himself and briefly talked about the firm. Judy sat on the edge of her seat, wondering what these lawyers meant to do. A moment later, Brown told her: "We're going to take the case." The Supreme Court Has Its Say Wilson Brown was too young to know Charles Biddle, but he had heard that this revered name partner in his firm had never liked the outcome of the B-29 case. What an opportunity. Although Brown and two associates couldn't find the law firm's original files, the Supreme Court's records had been preserved, and that gave the lawyers a foothold. They dived into the facts and the case law. Right off, Brown felt shocked by the role of the government attorneys back then, particularly the solicitor general. Brown couldn't believe that this man would stand flat-footed before the Supreme Court and say the documents contained national security secrets. The solicitor general had only his integrity. How could he relinquish that? It took Brown the longest time to come up with an answer: The solicitor general didn't know. That had to be it. He hadn't been told. How to cure this fraud? Brown could go to federal district court, but the trial court had nothing to fix; it had ruled in the widows' favor. So had the court of appeals. It was the Supreme Court that had overturned -- only there had the fraud worked. Brown felt he had to get this case back before the high court. He and his colleagues pondered and studied. When Supreme Court jurisdiction is unclear, he'd learned at law school, you should consider the All Writs Act, which gives the court the power to issue all recognized writs necessary to bring about a just remedy. Brown pulled Black's Law Dictionary off a shelf in his office. He began to read treatises on unusual writs. His eyes stopped at mention of a writ of error coram nobis. He'd studied this rare writ in law school but needed a refresher. He read on. This writ essentially provided a means for a court to correct an error -- an error made in proceedings "before us." That would be the path, Wilson Brown decided. They'd petition for a writ of error coram nobis. Their goal wasn't to overturn the legal precedent of U.S. vs. Reynolds; they were seeking justice for three families by challenging the facts of the case. They wanted the balance of the original judgment, $55,000, plus compounded interest -- an estimated $1.14 million. When the day came to send its petition to the Supreme Court, Wilson Brown's law firm dispatched its most reliable filing clerk, Francis "Franny" Bisicchia, on a southbound train to Washington, D.C. It was Feb. 26, 2003, a Wednesday. Franny had the required 40 copies of the petition in booklet format in a box that she'd loaded on a handcart. In Washington, she rode a taxi from the train station to the court, where police officers, for security reasons, accept all large packages. They took her box and file-stamped one petition for her as proof of receipt. The box of petitions, addressed simply to the Clerk of the Court, traveled then from the police to the clerk's office. There it apparently reached the hands of a junior clerk, Clayton R. Higgins Jr. The next Monday, Higgins called the law firm to say that the petition had been rejected on its face by the clerk's office. Wilson Brown's associate, Jeff Almeida, took the phone call. Almeida believed the clerk was wrong to say their type of petition couldn't even be filed. Over several conversations that Monday, he explained why, citing court rules and cases. In response, the clerk said only that he'd consult others in his office. Two days later, Christopher Vasil, the chief deputy clerk, called Almeida and advised him to refile the petition with a covering "motion to file." Almeida didn't believe Supreme Court rules required this, but he conceded. On March 4, Almeida sent the box of petitions back to the Supreme Court, once again under the care of Franny Bisicchia. Weeks passed before the law firm learned that the clerks this time had passed the petition to the court. There, the justices on April 4 took the step of asking Solicitor Gen. Theodore B. Olson if his office wished to file a response. Olson did. For a time, Wilson Brown and his clients entertained the notion that the solicitor general might share their sense of dismay at what his office had done 50 years ago. Olson did not, however. On May 30, he asked the Supreme Court to reject the motion to file. He did so for a variety of reasons, among them that "the law favors finality," but his most startling argument was that no fraud had been committed. The government in 1950, Olson maintained, never stated that "the particular accident reports or witness statements in this case in fact contained military or state secrets." Rather, the Air Force secretary was "legitimately concerned" that classified information might be embedded in the Air Force's internal memos and in the letter Frank Folsom of RCA wrote to Gen. Hoyt Vandenberg weeks after the crash. This Olson argued even though Folsom's letter had made only vague, passing reference to Project Banshee and hadn't been the issue back then. In truth, the Air Force's experiments with remote-controlled aircraft had not even been a secret: A drone plane had been featured in Washington, D.C., newspapers in January 1947, when it flew over the nation's capital carrying members of the news media, who reported that the "purpose of the flight is to demonstrate the effectiveness of remote control of bombers, which will be a major aerial weapon in the future." Olson, as others before, finally invoked the context of the times to justify his stance: "[I]n this type of proceeding, it is easy for parties to make hindsight judgments.... The proper focus for the courts is to seek to evaluate the claim of privilege from the standpoint of the day and context in which it was asserted. The claim of privilege in this case was made in 1950, at a time in the Nation's history -- during the twilight of World War II and the dawn of the Cold War -- when the country, and especially the military, was uniquely sensitive to need for 'vigorous preparation for national defense.' ... The allegations of fraud made by the petition in this case ... must be viewed in that light." By the time Olson filed his response, Judy Palya Loether's quest had drawn the attention of print and broadcast journalists. There'd been a flurry of interviews and feature articles. Although Wilson Brown kept pointedly saying that this case is "about three families.... It is not about national security law," many accounts found larger meaning beyond the human interest. Parallels with current times couldn't be ignored: the heightened concerns about national security, the Bush administration's desire for expanded powers to fight perceived threats, Atty. Gen. Ashcroft's refusal to produce documents or witnesses in sensitive cases involving accused terrorists. One news report declared the new Reynolds claim "a case to shake the foundation of national security." Another thought "it could serve as an important lesson about the potential consequences of expanding the government's homeland security powers." In Massachusetts, Judy suggested to one reporter that "this story is all about America. It isn't about a plane crash. It's about my country doing the wrong thing." She and Susan Brauner talked often now of "rectifying an injustice" and "getting the word out." They also, tentatively, exchanged messages about how the families should divide whatever money the courts might award them. Judy marveled at what they had set in motion. "What is very rewarding," she said one day last June, "are all the people who are involved in this. People are joining me on this journey. I have found my father. Patricia has found the opportunity to face this finally. Then there's Charles Biddle's law firm. How right can that be?" Other voices, however -- less enthusiastic voices -- also could be heard around Washington in the early summer of 2003. At the George Washington University Law School, Jonathan Siegel told the National Law Journal, "I would have to guess this lawsuit isn't going to work. It's a basic principle of law that once a case gets decided and the decision is final, that's it." At the Center for National Security Studies, Kate Martin literally sputtered at the import being given to fraudulent government claims: "That facts of the original case are not true is irrelevant to the state secrets privilege. The idea that it undercuts the privilege is ridiculous. Often in cases, after they're decided, the facts are proven to be not true. That's the nature of the legal system. Sometimes people lie. Sometimes there's new information." George Washington University law professor Jonathan Turley -- whose own office had been sealed by a federal court concerned that it might contain state secrets related to a sensitive case -- said: "For the Supreme Court to address the fact clearly that it had been lied to would open difficult issues. It would be like Claude Rains saying, 'I'm shocked, I'm shocked.' The court used the facts of Reynolds to say the government could be trusted.... Reynolds was based on trust, on willful blinders. There's much danger in going back now, in recognizing that the government routinely lies. For that reason, they won't reopen this. I think Reynolds is like discovering an unfaithful wife after 50 years of marriage. You're hurt by the betrayal, but you can't turn back half a century. You preserve the marriage for the children's sake." Turley spoke those words in Washington on Friday, June 20. The Supreme Court term ended the following week, and it proved to be an extraordinary five days. Banner headlines proclaimed two seminal court decisions: one to preserve affirmative action in university admissions, the other to recognize the due process rights of gay men and lesbians. Amid the cascade of stories, columns and editorials, few noticed another action by the justices. On Monday of that week, the Supreme Court delivered a simple one-sentence ruling in the case titled In Re Patricia J. Herring, Et Al: "The motion for leave to file a petition for a writ of error coram nobis is denied." Friends for the Journey By the end of summer, an impulse to party had supplanted feelings of disappointment among those who'd thought to challenge U.S. vs. Reynolds. Invitations began to arrive in dozens of mailboxes. "The Court Has Decided ..." they read. "You Have Been Ordered To Appear at a Clam Bake on Cape Cod." Besides a traditional shore dinner, the "docket" promised "Dart Throwing at Justices." All nine targets were depicted right there on the invitation, in eerily convincing sketches drawn by Patricia Reynolds Herring. Eight justices were dancing; one, Sandra Day O'Connor, was perched on a swing -- "a vote swing," the caption explained. Everyone came to Susan Brauner's home in Harwich Port, Mass. It was the first time they had all gathered as a group. Pat Reynolds Herring and her husband, Don, flew from Indianapolis. Judy Palya Loether and her husband, John, drove from western Massachusetts. So did Cathy Brauner and her daughter, Hyacinth. Susan Brauner's daughter and son-in-law showed up, and her grandchildren, and family friends who'd known Phyllis Brauner. From Philadelphia came the Drinker Biddle & Reath lead attorney Wilson Brown, with his wife, Anne. They all stood together in Susan Brauner's backyard, minutes from Nantucket Sound, sampling Cape Cod wine, Nantucket ale and homemade clam chowder. Then came lobster rolls, steamers, corn on the cob, potato salad, fruit salad and a table full of desserts. Children darted around and scooted off to the beach. Jokes flowed easily about government officials and high court justices. The partygoers dropped their dart-throwing idea, but only because they expected a congressman to show up. Their fight wasn't over. They were lobbying Congress for a remedy, and within weeks would file an action seeking relief in federal district court. However those efforts turned out (a judge in Philadelphia will hear arguments on May 11), they'd already realized a type of success: Lawyers challenging other state secrets claims had started to study and use their petition. When the government invoked Reynolds, these lawyers could now introduce the story of Reynolds' genesis. All the same, an elegiac tone colored the day's celebration. Pat Reynolds Herring felt that whatever happened "wouldn't be the same as the Supreme Court admitting fault." Susan Brauner allowed that the court's wordless denial had "stung," had been "a kind of revelation." Judy Palya Loether confessed that she'd expected the Department of Justice to be "appalled" at what transpired 50 years ago. She'd had a fantasy, even, that President Bush would call her to say this was wrong, we'll make it right, we're very sorry. "It didn't happen that way," Judy said, as the clambake wound down. "Maybe the law isn't about right or wrong. The concept that the government lied to the Supreme Court seemed to me a terrible thing to do. It appears that the justices were not as appalled as I was." That thought did not devastate her, though. Instead, she found comfort in what she still, repeatedly, called her "journey" -- and in all those who'd joined her along the way. At nightfall, from a corner, she watched them gather in the dimly lit family room of Susan Brauner's home, four generations together, many of them laboring over a mammoth jigsaw puzzle -- an image of the globe -- brought as a present by Pat Reynolds Herring. Their fathers and husbands, Judy believed, would be happy to know they were all together. At the clambake that afternoon, she'd risen to say, "I hope we have another chance to gather, to celebrate victory." Now she thought: I would put a higher value on this experience than on winning the Supreme Court decision. She weighed that notion, then said it out loud: "Yes. If I had to trade my experiences for a Supreme Court ruling, I wouldn't. The government is a cold entity. These are real people." Researcher Nona Yates contributed to this report. * * * Los Angeles Times: April 17, 2004 The Secret of the B-29 HOW THE DEATH OF JUDY'S FATHER MADE AMERICA MORE SECRETIVE * A plane crashes at the dawn of the Cold War, and the government seeks a special legal privilege. Its claim sows the seeds of the Patriot Act. By Barry Siegel, Times Staff Writer FIRST OF TWO PARTS http://www.latimes.com/news/nationworld/nation/la-na-b29partone18apr18.story In a box delivered by rolling handcart on the morning of Feb. 26, 2003, the U.S. Supreme Court received 40 copies of a petition so unusual a clerk decided he couldn't accept it for filing. First, though, he turned through its pages. In a preliminary statement, he read these words: Three widows stood before this court in 1952. Their husbands had died in the crash of an Air Force plane. The lower courts had awarded them compensation. But the United States was bent on overturning their judgments, and -- to accomplish this -- it committed a fraud not only upon the widows but upon this Court. Filed by a prominent Philadelphia law firm, this petition asked for an exceedingly rare writ of error coram nobis -- an error committed in proceedings "before us." The petition's true author -- at least in spirit -- was a middle- aged woman from Bolton, Mass., named Judy Palya Loether. Her father had perished on that doomed Air Force plane when she was 7 weeks old. For most of her life, he'd been a mystery. She felt certain he would have had an effect, would have contributed to shaping a different Judy, perhaps a better Judy. Instead, she'd had a stepfather who seemed to withhold love. She'd raised a family and served her community, but she'd never lost her sense of wonder about her father, her desire to know him. In time, this impulse drew her into the past. What Judy Palya Loether wanted the Supreme Court to do was fix that past -- to fix its own 50-year-old error. The clerk read on: At the heart of the case is a set of reports the Air Force prepared on the accident.... The Air Force refused to produce these reports, even to the district judge.... The United States took the case to this Court ... contending that the reports contained "military secrets" so sensitive not even the district court should see them.... This Court took the government at its word, and reversed. But, it turns out that the Air Force's affidavits were false. The Air Force recently declassified the accident reports. They include nothing approaching a "military secret." ... In telling the Court otherwise, the Air Force lied.... It is for this Court in exercise of its inherent power to remedy fraud, to put things right. The clerk didn't need to puzzle over which long-ago case the petition addressed. Although U.S. vs. Reynolds wasn't familiar to the public, law students everywhere knew it to be the landmark 1953 ruling that formally established the government's "state secrets" privilege -- a privilege that has enabled federal agencies to conceal conduct, withhold documents and block troublesome civil litigation, including suits by whistle-blowers and possible victims of discrimination. U.S. vs. Reynolds' ramifications reach beyond civil law: By encouraging judicial deference when the government claims national security secrets, it provides a fundamental basis for much of the Bush administration's response to the Sept. 11 terrorist attacks, including the USA Patriot Act and the handling of terrorist suspects. Although some judges and the Supreme Court may be starting to resist, the "enemy combatants" Yaser Esam Hamdi and Jose Padilla, for many months confined without access to lawyers, have felt the breath of Reynolds. So has the accused terrorist Zacarias Moussaoui when federal prosecutors defied a court order allowing him access to other accused terrorists. So have hundreds of detainees at the U.S. Navy base at Guantanamo Bay, Cuba, held for more than two years without charges or judicial review. By asking the Supreme Court to "remedy fraud," Judy Palya Loether and others in the crash victims' families were taking dead aim at the factual foundation of the state secrets privilege. Long ago, Judy's mother and two other widows had tried to challenge the power of the federal government. Now here came the families once again. Two days after their petition arrived at the Supreme Court, the clerk's office returned all 40 copies to the Philadelphia law firm. Enclosed with the petitions were the firm's $300 check for the filing fee and a letter explaining that "there are no provisions in the rules of this Court to allow you to file such a document." For 48 hours, the law firm and the clerk's office debated whether the Supreme Court could, in fact, be asked for a writ of error coram nobis. In the end, the clerk's office advised the firm to resubmit the petition with an attached motion asking the justices, in effect, for leave to file something the clerk thought unacceptable. This time the petition didn't get sent back. Judy Palya Loether typed e-mail messages and roamed the Internet. She fielded calls from reporters. She heard from her father's aging colleagues. She began to imagine that she might prevail. Here, she sensed, was a powerful way to right a wrong. More important, here was a powerful way to find her father. Judy began to feel like Dorothy in the "Wizard of Oz." "This whole journey of mine," she told those around her, "has changed my life." * Code-Named Project Banshee As a young girl, Judy Palya Loether thought her father had invented everything. This wasn't so, she later discovered, but to her, Al Palya could fairly be called a Renaissance man. She knew he'd been born on a farm in northern Minnesota. She knew he could play a mean saxophone and once saved a ship at sea with his ham radio. In family scrapbooks, she found evidence that he'd won a Charleston dance contest. She read reports about the summer he played his sax on a ship cruising to the Orient. She looked at travel films he made in half a dozen of the country's national parks. Old letters, photographs, clippings -- they told Judy her father was a tournament bridge player, a photographer, a bandleader, a singer, a carpenter. They told her also that he was a genius at making things miniature. That's how he eventually came to earn a living. First as an engineer at Minneapolis-Honeywell, then, beginning in 1945, at RCA in New Jersey. His role at RCA mesmerized her. There, at the dawn of the Cold War, he had been assigned to secret experimental work that RCA was doing for the military. In early 1946, RCA contracted to develop a guidance system for pilot-less aircraft, code-named Project Banshee. The goal, in an era before intercontinental missiles, was to launch drone planes that could travel long distances and drop bombs on pinpoint targets. Other engineers thought this notion defied the laws of physics. Judy's father insisted it could be done. In 1947, he and his team of engineers began testing the Banshee system on board B-29 Superfortresses, the type of plane used to drop the atomic bomb on Hiroshima and Nagasaki. Poking around, Judy found a letter he wrote that summer to a colleague: All phases at present going smoothly and expect to complete Banshee sometime in October. I had some results on flight tests.... The plane [flies] in the right direction, but the run is by no means a straight line. We have not progressed far enough to determine exactly what the trouble is ... Other notes showed the deep love shared by Judy's father and mother. They'd met while Al was studying engineering and playing in a popular dance band at the University of Minnesota. He stood 5-feet-9, weighed 150 pounds, had blue eyes and brown hair. She thought he had a wonderful smile. They married in June 1937 and drove to a Canadian honeymoon in his new red convertible. They had a son, then another son. By May 1948, after four merit raises at RCA, Palya was earning $6,720, the equivalent today of about $100,000. On Aug. 16 of that year, his third child -- Judy -- was born. In the family archives, she could never find this event mentioned by her father. She found only a photo of her as an infant sitting in her mother's lap; was her father looking at his daughter through the camera? She could not say. She knew only, from a note he scribbled, that six weeks after her birth, on Oct. 1, he flew to Chicago and spent a weekend with his sister Lillian, talking about the care of their widowed mother. Then, on Monday, he flew to Atlanta. He was headed to Robins Air Force Base, south of Macon, Ga. They had one final Banshee mission in a B-29 scheduled for Oct. 6. Al Palya didn't need to ride in the plane but planned to anyway. As usual, he wanted to boost the morale of the technicians who had to handle the daily grind. * In an Instant, a Pilot Without Power Later, there would be some confusion at Robins as to why the scheduled 8 a.m. takeoff was postponed. The copilot thought a gasket had to be replaced on their B-29. The flight engineer thought the RCA team hadn't arrived. Whatever the reason, 1 p.m. became the new start time. Standard procedure called for both crew and civilians to be briefed on emergency measures, but it didn't happen. Like the initial delay, this lapse would be blamed on the troublesome gasket and the late-arriving engineers. It didn't seem to matter to the crew. The Air Force personnel, after all, were well-informed, and among the civilians, Judy's father and Bob Reynolds, a young engineer on his RCA team, were squadron regulars. Shortly after 1 p.m., 13 men climbed into the B-29's two pressurized cabins. One cabin was fore and the other aft of the plane's giant bomb bays. Judy's father strapped himself into the nose gunner's position in front of the pilots, the prize seat for sightseeing. Today's mission was to test the Banshee guidance system on a five-hour round trip between Georgia and Florida. The survivors of that mission would never forget what happened. They fired up the engines. Before taxiing out, the flight engineer reported that the No. 2 engine was running a little hot, not uncommon on a B-29. On a power check, the pilot put No. 2 at full throttle with turbo on for about four seconds. He found no loss of power. In these postwar months, airmen at Robins were used to flying with below-par engines, and weren't likely to scratch a flight because one didn't perform to specs. "It will clear up," the pilot told his crew. He lowered the flaps to 20 degrees and asked if all the men were ready. At 1:28 p.m., the B-29 -- 111,000 pounds, 99 feet long, with four 2,500-horsepower engines on a 141-foot wingspan -- rolled down the Robins runway. They retracted the landing gear and climbed through light cumulus clouds, with power at a standard 2,400 rpm and 43 inches of manifold air pressure. At 4,000 feet, just as the B-29 cleared the clouds, the flight engineer reported that engines No. 1, 2 and 4 were running warm. This was not unusual, especially in the Georgia heat. The pilot boosted air speed and reduced power to 40 inches of manifold air pressure, which meant the nose went down and air flow increased over the engines. The plane kept climbing. Then, in an instant, at 18,500 feet, the pilot lost power on engine No. 1. Manifold air pressure inside the engine dropped from 40 to 23 inches. Fuel consumption fell. The pilot asked about other readings. All else normal, the flight engineer advised. Neither the pilot nor copilot was overly alarmed. They put out their cigarettes, though. A moment later, the pilot advised everybody to strap on a parachute. The civilians scrambled to obey. Eugene Mechler, an engineer with the Franklin Institute, an RCA subcontractor, helped his colleague William Brauner fasten his snaps. Mechler, back behind the bomb bay, could not see Judy's father in the plane's nose. He'd later say, "Al had the prize seat for sightseeing, and I had the best seat for escaping." At 20,000 feet, the pilot leveled off and reduced power on his three good engines, taking them down to 2,100 rpm and 31 inches of manifold air pressure. He asked the flight engineer to try to raise the pressure manually on No. 1. The engineer worked the emergency amplifier system until he had No. 1 at 31 inches. It wouldn't hold, though; an instant later, pressure fell back to 23. Now they knew they had a problem. The B-29 Superfortress had been the most formidable bombing aircraft of World War II, but from the beginning its engines tended to overheat. What's more, their crankcases were made of magnesium alloy, which is highly flammable. The pilot decided to "feather" No. 1, which meant turning it off after positioning the propeller so it wouldn't keep rotating in the wind. Looking out his window, he accidentally pushed the button for No. 4 instead. The copilot, noticing immediately, turned No. 4 back on -- or at least thought he did; No. 4 would later be found in the feathered position. The pilot, meanwhile, pressed the correct button to shut down No. 1. They felt the slight vibration that comes when an engine is turned off in flight. It was too late. Even before No. 1 stilled, the flight engineer saw the engine access doors turn light brown. Then a crew member scanning the left side reported smoke. The pilot ordered the flight engineer to trigger the fire extinguisher on No. 1. That seemed to work -- the smoke disappeared. But five seconds later, it came back. This time there was fire too. In an instant, it engulfed the aft half of the engine. Then the entire engine, then the wing area behind the engine. Flames flashed past the left scanner's window. The whole left wing was on fire. "Engine No. 1 on fire," shouted the left scanner, over and over. "Engine No. 1 on fire." Judy's father sat alone in the nose. Al Palya's view was forward to an empty sky free of flames. The pilot started a descent. He ordered the cabin depressurized so his crew could open the escape hatches. The civilians tugged at the parachutes on their backs; the crew scrambled for positions. "What's wrong with No. 2?" the pilot asked. Manifold air pressure in No. 2 had dropped to 20 inches. They were in a moderate dive, banking about 20 degrees to the left. The pilot fought the bank, pulling hard to the right, his wheel turned more than 90 degrees. "Stand by to abandon ship," he said. Farther back in the plane, the Franklin engineer Eugene Mechler saw sheets of flame shoot past a window. He couldn't believe it. He felt safe inside this huge hull. Planes land with an engine on fire all the time, he kept thinking. This pilot will get us down OK. I'd rather stay with the ship than parachute. The left scanner popped the rear escape hatch. The pilot opened the bomb bay doors. In that instant, the aircraft went into a violent spin to the left, probably caused by drag from the open doors or the damaged left wing. Centrifugal force pinned the crew. It plastered everyone to the floor in piles, one body atop another, unable to move. The pressure eased slightly, just enough for some of the men to stir. Up front, the copilot stepped toward the forward nose escape hatch. The plane banked, throwing the flight engineer into the hatch. He stuck there, face up in the well, his parachute on his back. The nose gear had extended, but not enough to allow escape. The copilot, standing over him, stuck a foot down and kicked him through. An instant later, the copilot followed, jumping at 15,000 feet. Farther to the rear, the left scanner blacked out, woke, slid through the bomb bay escape hatch and pulled his rip cord. Eugene Mechler crawled after him, pausing a moment to grab his parachute release handle. As he jumped, he yanked. My gosh, he thought. I pulled it too soon, the chute will foul on the plane. It didn't. Mechler slowed as his chute opened. There was the earth, just below him. There too, in the air around him, were the left scanner, the flight engineer and the copilot. Those four lived. The nine other men did not. The RCA engineer Bob Reynolds and the Franklin engineer William Brauner couldn't escape the centrifugal force that held them in the rear compartment. Judy's father managed to leap from the plane -- but he either failed to pull his rip cord or jumped too low. As they parachuted to the ground, the four survivors heard a puff in the sky and saw falling pieces of metal. It was 2:08 p.m. The B-29 had been airborne for 40 minutes, but would fly no more. Witnesses heard an explosion louder than thunder, more like a bomb. Looking up, they watched the plane disintegrate as it plummeted. Engine No. 4 came off, then the outer panel of the left wing, then No. 1 and No. 3. All control surfaces, wing flaps and portions of the stabilizers tore loose. The fuselage broke in two at the rear bomb bay. Most of the parts rained down on the Zachry family's 340-acre cattle farm, just off the dirt Gibbs Street extension, two miles south of Waycross, Ga. "Well, I can tell you," Bernard Zachry would report half a century later, "anyone who lives in Waycross remembers it. Biggest thing that ever happened here." * 'I Regret to Inform' In his barn, Robert Zachry heard the B-29 explode. He told his 4-year-old son, Michael, to run for the house, then jumped on his quarter horse and rode out to open the gate on Gibbs Street. The authorities, he knew, would need to get onto his land. Michael was sprinting past the pump house when the plane hit the ground. He dived into the grass, jumped up and started running again. His 6-year-old brother, Bernard, should have been on the school playground but instead was across the street playing cowboys and Indians with his buddy Joey and a girl whom they'd tied to a tree. Bernard saw it all, the plane falling from the sky, the fire and smoke, the parachutes, one engine knocking over their fence, another landing near the schoolyard. He also saw the school principal shouting at him as she came across the road, a heavyset woman trying to climb a fence to get to the wayward children. Bernard's mother reached them first. She scooped him up as the principal grabbed Joey. Bernard never could recall anyone untying the girl. He remembered the crowd that gathered, though. Waycross had some 30,000 citizens then, and a fair share of them were pushing on the Zachry family's fence. Bernard's mother tried to keep people from knocking it down. He and his brother watched a man climb over the fence, pick up a severed arm and remove a watch. Soon sirens filled the air. The local police and the state patrol arrived, then the ambulances, the Red Cross, the military, the reporters and photographers. Uniformed officers from Robins Air Force Base began holding everyone back, including the local cops and firemen. From the B-29's tail section, a Robins engineer removed the Banshee project's equipment. What Bernard and Michael would remember most was the knock on the back door of their home. When they opened it, there stood one of the men -- the left scanner. He had a sprained ankle and appeared shaken. Bernard's mother took him in, gave him a cup of coffee. His parachute hadn't opened all the way, he told them. If he hadn't landed in their gator pond, out near the swamp, he might not have made it. Searchers found the bodies of the nine who hadn't survived in and near the wreckage. Three were civilian engineers from RCA and Franklin -- Bob Reynolds, William Brauner and Judy's father. Al Palya lay by himself, an unopened parachute on his back, free of the aircraft in a field of clover. Three hours later, a pilot friend knocked on Patricia Reynolds' door near Robins Air Force Base. "Pat," he said, "there's been an accident down at Waycross. We don't know who survived." She was the only widow close enough to get to the crash site. They drove the 90 miles in near silence, Pat lost in thought. Her husband, Bob, hadn't even been scheduled to fly this day; another engineer had asked if he would cover for him. They were still kids on a honeymoon, he 24, she 20. They'd risen near dawn and walked the hills at 5:30, holding hands. That would be her last memory of him. In Pennsylvania, William Brauner's wife, Phyllis, pregnant with her second daughter, also got word. Will and I, she liked to say, did all our arguing before marriage, then never. They had a 4-year-old daughter, Susan, who would never forget sitting on the stairs that day, watching her mother sobbing and rocking until a doctor rushed in with a black bag to sedate her. Susan also would never forget waving goodbye to her daddy the morning he left them. As he turned to wave back, she thought, I'll never see him again. In New Jersey, a telegram arrived at the home of Judy and her mother, Elizabeth: I regret to inform that Mr. A. Palya has died due to injuries received in an aircraft accident at Waycross, GA.... The deceased is now at Mincy Funeral Home, 516 Pendleton St., Waycross, GA. Kindly wire collect whether you desire remains to be shipped direct to your home or to a designated funeral home or mortuary, furnishing the name and address of funeral director selected by you to receive remains. Deepest sympathy is extended ... Betty Palya studied newspaper photos. One featured a solitary body prone on the Waycross farm, covered by a blanket. Her husband had been the only civilian found outside the aircraft; most likely, this was Al. By her side, she had all the letters he wrote as he traveled on business. It's Saturday, only one week -- 7 days -- till I stand by the railroad tracks waiting for your train.... Honey I can't start telling you how thrilled I am. Honest I can hardly sit still ... She'd met him when she came to study with his sister, a friend of hers. Their courtship had lasted three years. Then one day he'd said, "Let's get married." She'd tried always to be a good, loving housewife and companion. Now she vowed to be a good and loving single mother to three young children. She'd still make all their clothes, their draperies, their bedspreads, their slipcovers. She'd still cook big meals each night -- a meat, a potato, a vegetable, a salad, a dessert, the colors varied, not all the same. She'd still set the table with a tablecloth, the glasses placed at the tip of the knives. She'd still make fudge every Friday night, spaghetti with meatballs every Saturday night, the sauce simmering in the kitchen all day. Judy would forever remember those meals, those weekend smells, that resolve by her mother to shelter them from their loss. Mincy Funeral Home's bill to prepare and ship Al Palya's body to New Jersey came to $681.27. On Friday, Oct. 8, his close colleague Walter Frick -- who'd originally been scheduled to fly on the doomed B-29 -- escorted the body home, overwhelmed with sadness about the infant daughter who would never know her father. Services were held the next Monday in Haddon Heights, N.J. They buried Al Palya later that week in Tabor, Minn., where he'd been born and raised. His widow and three children stood by as they lowered his casket into the earth. That afternoon, Judy Palya was two days short of being 2 months old. * A Plane With a Troubled History At least to the public, the crash of a B-29 flying over Waycross remained a mystery. One newspaper informed citizens only that the "plane was on a secret mission testing secret electronic equipment.... Guards were sent to recover and protect as much of the confidential equipment as possible." Another report advised that "full details of the plane's mission were not disclosed, but it was believed that it may have been engaged in cosmic ray research." The copilot, through a military spokesman, did describe how one engine caught fire and another lost power before the plane went into a severe spin. The copilot advised reporters, however, that he "could not discuss" the cause of the explosion or how he and the others escaped. Then, in late November, seven weeks after the crash, RCA Executive Vice President Frank Folsom mailed a typed, four-page, single-spaced letter to Hoyt Vandenberg, commanding general of the Air Force. Folsom, 54, would a year later become the president of RCA. He knew the military: From 1941 to 1943, he'd been chief procurement officer of the U.S. Navy. He'd also been Al Palya's and Bob Reynolds' employer, and indirectly, through the Franklin subcontractor, William Brauner's as well. From his letter to Vandenberg, it was clear that Folsom, drawing upon inside sources, knew what had happened to his men in the doomed B-29. Despite his restrained tone, he sounded deeply disturbed. Although we have not received authoritative information from the Air Force regarding the cause of the accident, it appears from available informal information that one of the engines caught fire, followed shortly by a loss of power in a second engine. At about the same time the plane went into a tight spiral.... The resulting centrifugal force prevented escape.... The civilian engineers had received no preflight briefing in emergency bailout procedures.... This particular airplane had a long history of unsatisfactory performance.... We feel that it is probable that there was some confusion among the pilot, copilot and flight engineer ... Folsom then laid down a not-overly-subtle threat: Steps will be required to assure that our engineers will be willing to assume the unavoidable risks incident to flight tests in military aircraft.... This accident has firmly impressed upon our engineering staff the danger of flying in military aircraft. Folsom wanted newer, safer planes. He wanted all safety regulations followed. He wanted first-rate flight crews. He wanted "frank and open disclosure of all facts regarding the maintenance and operation of airplanes." He wanted his own independent inspection of Air Force planes. And, when a crash occurred, he wanted the official accident report. Folsom's letter clearly rattled the military command, which depended on RCA's technical expertise. Copies moved up and down the Air Force hierarchy, at each stop drawing memos directed at others in the chain of command. Most troubling to the military was what Folsom's letter didn't say, what Folsom didn't know. By then, Air Force officers had in hand the official report of their own accident investigation. It not only confirmed Folsom's charges, it added to them. The report made clear the doomed B-29 was a problem plane that had spent more time in maintenance than in the air. A crew flying it from Ohio to Florida on June 24, 1947, experienced so many malfunctions during takeoff and initial flight that they turned back after 20 minutes. They landed at Wright Field in Dayton with three engines "on red cross," which meant the plane was grounded for repairs. Worse, the Air Force had not complied with several maintenance directives for this B-29 -- including two critical technical orders that addressed the threat of engine fires. The orders, dated May 1, 1947, called for installation of deflector shields to avoid overheating and eliminate a "definite fire hazard." Because of the technical order "noncompliance," the accident report advised, the aircraft had been on a cautionary "red diagonal" but had been "released for flight by signing of an exceptional release." The report concluded: "The aircraft is not considered to have been safe for flight because of noncompliance with [the] technical orders." None of this information made it into the reply that the Air Force eventually sent to Frank Folsom. In a letter dated Feb. 17, 1949, some 4 1/2 months after the accident, an assistant vice chief of staff dismissed the RCA executive's concerns. "There is no question regarding safety procedures," Maj. Gen. William McKee advised. "Constant emphasis is placed on this phase of operations.... The Air Force is most anxious to conserve property and life and under no conditions, except extreme emergency, are aircraft permitted to fly when safety is in question." McKee assured Folsom that his "personal interest in this matter is deeply appreciated." He assured also that "every possible action will be taken to maintain full mutual confidence" with civilian contractors. However, "due to the purpose and nature of the Accident Report, it is impossible to furnish copies." * Three Widows and an Unlikely Lawyer At age 20, Pat Reynolds returned to Indianapolis and her mother's home. It was not a time, she would later say, when people readily spoke out against their country. There'd been the Depression, World War II, and then the start of the Cold War. Everyone respected authority. There wasn't a lot of resistance to anything. "What we knew," Pat recalled, "was 'loose lips sink ships.' " Phyllis Brauner sold the family house in Pennsylvania and moved in with her mother, the two buying a home in Wellesley, Mass. Marriage had derailed her education plans, but now she returned to school, aiming to earn a doctorate in chemistry. Elizabeth Palya remained in New Jersey, collecting $63.34 a month from Social Security and teaching high school home economics to support three young children. As she ran their household -- always doing something -- Judy watched and listened, learning how to shop for fabric, how to beat fudge to a glossy sheen, how to cut the taste of acid in spaghetti sauce. It was an attorney friend of Phyllis Brauner's late husband who first suggested they file a lawsuit against the government. By January 1949, Judy's mother had expressed interest in joining such a claim and sharing a lawyer. In April, they fixed on one: Charles Biddle of Drinker Biddle & Reath in Philadelphia. Judy's mother sent a check for $50, her share of Biddle's retainer. This was an uncommon case for Biddle. He generally was a lawyer to the rich, a well-ensconced member of the establishment. The Biddles, a legendary family of bankers, diplomats, lawyers, politicians and military men, were one of Philadelphia's first families, there since early in the 19th century, when Nicholas Biddle bought property on the bank of the Delaware River, 13 miles upstream from the city. Nicholas Biddle was the most powerful banker of his time, director of the Second Bank of the United States and a ceaseless combatant with President Andrew Jackson for control of the nation's currency. At the 123- acre family estate, called Andalusia, his guests included John Quincy Adams, Daniel Webster, the Marquis de Lafayette and Joseph Bonaparte, the former king of Spain. In Charles Biddle's time, Andalusia still clung to customs and codes from the Victorian era. The family gathered in coat and tie, even in the heat of summer, for a traditional Sunday dinner of roast beef, rice and peas. Charles traveled to Scotland every year to shoot grouse. His family summered in Maine, loading suitcases, ice boxes, nannies, gardeners, butlers and maids onto two private railroad cars. At his law firm in downtown Philadelphia, most knew Charles as Mr. Biddle. His old-fashioned patrician style -- easy, self-confident, relaxed -- rose from his talents and from his station in life. It masked the mind of a tough litigator. He was a Republican to the core. None of this, though, was Charles Biddle's chief claim to fame. Above all else, he was known as a World War I flying ace. As a member of the Lafayette Escadrille, he served in both the French Army Air Force and the American Expeditionary Force. He shot down 11 German planes. In April 1918, while attacking German two-seaters at low altitude behind enemy lines, he was hit, wounded and forced down, but managed, under heavy fire, to dodge his way to an advanced British observation post. He was awarded the Distinguished Service Cross, the Purple Heart, the French Legion of Honor, the Croix de Guerre with three palms, and the Belgian Ordre de Leopold. Biddle was 59 when the B-29 case came his way in the spring of 1949. Although it wasn't his custom to represent cash-strapped widows or challenge the government's high seats of power, he couldn't resist. What drew him most was the story of a B-29 going down -- and the secrets it held. On June 21, in federal district court in Philadelphia, he filed the initial complaint, Phyllis Brauner and Elizabeth Palya vs. the United States of America, seeking $300,000 for each widow. He also called Pat Reynolds in Indianapolis. She'd turned down his first invitations to join the lawsuit. At 20, she had no children and wasn't interested in the money. Even more, she wasn't interested in immersing herself in this matter; deep denial felt better. Now Biddle, trying again, told her he respected how she felt, but feared she'd jeopardize the other two women's case if she didn't get involved. Biddle's words brought to mind images of Bob that Pat would remember always. He'd just glowed from the minute she met him. They went to a movie that first night, then sat outside singing an old camp song -- Tell me why the stars do shine -- in perfect two-part harmony, her voice a sultry contralto. They married three months later and headed to Florida on a B-17, Pat in the nose, smuggled aboard -- her first plane ride. RCA had assigned Bob to the Banshee project. OK, Pat said finally. Sign me up. This Biddle did, in a second complaint filed on Sept. 27. A month later, the government answered, denying any negligence, claiming it "was in no manner responsible for the accident." In January 1950, during the discovery process, Biddle asked government lawyers a critical question: "Have any modifications been prescribed by [the government] for the engines in its B-29 type aircraft to prevent overheating of the engines and/or to reduce the fire hazard in the engines?" The answer -- from U.S. Atty. Gerald Gleeson and Assistant U.S. Atty. Thomas Curtin -- was as succinct as it was false: "No." Soon after, Biddle tried to force the government to produce its official accident report and statements of the three surviving crew members. The government lawyers refused. There was no mention yet of "state secrets" or "national security"; the government claimed only that these documents, arising from the military's internal investigation, were a "privileged part of the executive files." On June 30, after hearing arguments, U.S. District Judge William H. Kirkpatrick delivered his opinion: an unqualified ruling in favor of the three widows. The plaintiffs don't know why the accident happened, he pointed out. If anyone knows, it's the government. So the government should hand over the accident report and the statements. Kirkpatrick had his eye fixed on just what kind of privilege the government was claiming -- and not claiming: "The Government does not here contend that this is a case involving the well recognized common law privilege protecting state secrets.... In effect, the Government claims a new kind of privilege. Its position is that the proceedings should be privileged in order to allow ... free and unhampered self-criticism within the service.... I can find no recognition in the law of the existence of such a privilege." The government still refused to produce the accident report. At the end of July, the three widows found a letter in their mailboxes. Biddle was writing with uncommon exasperation. "To my mind it is perfect nonsense after all these years when B-29s have had accidents all over the world to say that a report on what caused this accident is a secret which should not be disclosed. Obviously, we are not interested in any secret devices which may have been on board but which had nothing to do with causing the accident. And in any event, the answer ... is to let the Court look at the report and if there is anything which should not be made public, the Judge can authorize that it be withheld.... The violent objection to producing [the accident report] on the part of the Air Force naturally makes one suspicious that it may contain some conclusions very unfavorable to the Government's case." The issues crystallized at a rehearing before Kirkpatrick on Aug. 9, 1950, in Washington, D.C. Only now did the government invoke a state secrets privilege. In support of a motion for this rehearing, the Air Force had submitted two sworn affidavits, one signed by Thomas Finletter, the secretary of the Air Force, the other by Reginald Harmon, the Air Force judge advocate general. The government "further objects to the production of this report," Finletter declared, "for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force. The airplane likewise carried confidential equipment and any disclosure of its missions or information concerning its operation ... would not be in the public interest." Harmon added: "Such information and findings of the accident investigation board which have been demanded by the plaintiffs cannot be furnished without seriously hampering national security." The government's purpose seemed clear to Biddle. The Department of Justice wasn't merely resisting a lawsuit filed by three widows; it was intentionally trying to set a far-reaching precedent. While a state secrets privilege existed in common law, it had never been formally recognized by the Supreme Court. Biddle felt sure that his opponents meant to make this a test case. With the Cold War intensifying, so too was the government's determination to marshal all possible powers. On the bench, Kirkpatrick held the two affidavits in his hand. He'd been a lieutenant colonel in the Army during World War I, so he understood the needs of the military. He was the chief judge of his district, a Republican appointed by Calvin Coolidge. Something troubled him, though. Are you changing your reason for withholding the accident report? he asked the government lawyers. Does your original reason stand? You're not now contending that this case involves national security and the state secrets privilege? We do here contend that, replied the government lawyer, Thomas Curtin. He wanted it emphasized: He was now making a claim of state secrets privilege. "That claim has been made in other cases," Kirkpatrick pointed out, "and it has been usually met by submission of the [documents] to the court to determine whether or not it is data which would imperil the safety of the military position of the United States." Now their debate drove to the heart of the matter. Curtin: "We do not believe that is good law. We contend that the findings of the head of the department are binding, and the judiciary cannot waive it." Kirkpatrick: "It is an important question. I suppose, just to state a wholly imaginary and rather fantastic case, suppose you had a collision between a mail truck and a taxicab, and the attorney general came in and said that in his opinion discovery in the case would imperil the whole military position of the United States, and so forth. Would the court have to accept that? Is that where this argument leads?" Curtin: "I think you could interpret it that way." Kirkpatrick: "I only want to know where your argument leads." Curtin: "Under the statute, we contend it is final." Kirkpatrick: "Your argument would lead to the point that I suggested?" Curtin: "There is no other interpretation. In other words, I say that the executive is the person who must make that determination, not the judiciary.... In this particular case, the executive having made that determination, I submit, sir, it is binding upon the judiciary. You cannot review it or interpret it. That is what it comes down to." Kirkpatrick wouldn't let pass that the government, in midstream, had changed its reason for not producing documents. "Of course," he said, "there is another fact, that this particular claim of privilege ... was not made at the time. I carefully read the briefs, and it was not suggested there that there was any claim of [state secrets] privilege." Two years after the crash, one year after the lawsuit was filed, Curtin now said: "In my [initial] claim, I didn't even know what the trip was, or what was even on the plane, as a matter of fact." "All right," Kirkpatrick responded. "It is an old controversy." He'd made up his mind, though. The next month he issued an amended ruling, ordering the government to produce the documents for him to inspect alone in his chambers. When the government refused, Kirkpatrick entered a judgment by default in favor of Judy's mother and the other two widows. They had won round one. After a trial to determine the value of their husbands' lives -- defined as their lost earnings -- Kirkpatrick granted Betty Palya and Phyllis Brauner $80,000 each (the equivalent of $622,075 today) and Pat Reynolds $65,000 (the equivalent of $505,397). Relief, if not celebration, filled their households. The three women looked forward to relative financial security. This despite a letter each received a week later from Charles Biddle. "It may be quite some time before anything is collected," he warned, "for I believe that the Government will in all probability appeal." * The Highest Court in the Land The government waited five months. Not until April 1951 did it ask the U.S. 3rd Circuit Court of Appeals to overturn Kirkpatrick's ruling. Half a year later, on Oct. 19, Biddle and the government attorneys argued their cases before a three- judge appellate panel. On Dec. 11 came the panel's opinion, written by Judge Albert Maris, a highly regarded jurist and law professor appointed by Franklin D. Roosevelt. Ruling in favor of the three widows, Maris offered a resounding affirmation of Kirkpatrick's decision, which he quoted at length. Maris went even further than Kirkpatrick in addressing the critical underlying issues. In words that sound as fresh today as when written, he made plain that he saw clear dangers in what the government sought. Maris first addressed the government's claim that disclosure of the accident report would hamper open investigations: "We regard the recognition of such a sweeping privilege as contrary to a sound public policy. It is but a small step to assert a privilege against any disclosure of records merely because they might prove embarrassing to government officers. Indeed, it requires no great flight of imagination to realize that ... the privilege against disclosure might gradually be enlarged ... until, as is the case in some nations today, it embraced the whole range of government activities." Then Maris turned to the government's second basis for a claim of privilege -- state secrets. Like Kirkpatrick, he recognized that the government had advanced this argument only belatedly. Also like Kirkpatrick, he found the government's claim deeply troubling. What bothered him most was the assertion that the executive branch had unilateral power, free of judicial review, to decide what could be kept secret. Maris pointed out that Kirkpatrick hadn't ordered any documents to be disclosed; he'd only directed that they be produced for private examination in his chambers. "The Government was thus adequately protected," Maris wrote. "[But] the Government contends that it is within the sole province of the Secretary of the Air Force to determine whether any privileged material is contained in the documents and that his determination must be accepted by the district court without any independent consideration.... We cannot accede to this proposition.... To hold that the head of an executive department of the Government in a suit to which the United States is a party may conclusively determine the Government's claim of privilege is to abdicate the judicial function." Maris' conclusion: "The judgments entered in favor of the plaintiffs will be affirmed." Round two also had gone to the three widows. Charles Biddle, of course, knew what was coming. Three months later, the solicitor general filed a petition for a writ of certiorari -- a request for the Supreme Court to hear the case. On April 8, 1952, the Supreme Court agreed to adjudicate what was now known as United States vs. Reynolds Et Al. From both sides came thick briefs arguing their positions and defining what was at stake. The government gave no quarter. Neither did Biddle. "The basic question here," he wrote, "is whether those in charge of government departments may refuse to produce documents properly demanded, in a case where the government is a party, simply because the officials think it would be better to keep them secret, and this without the Courts having any power to question." Biddle concluded: "The Secretary of the Air Force may not assert he alone shall be the judge of whether his own claim is well founded.... This matter reaches to bedrock." In early September 1952, the clerk of the Supreme Court advised the lawyers for both sides that they should be present on Tuesday, Oct. 21, for oral arguments. On that fall day, at 1:30 p.m., Charles Biddle appeared before the court in striped pants, black tie and black frock coat with tails. Each side was allotted one hour for its argument, with a half-hour recess between the two presentations. The judges, another attorney present later reported to Phyllis Brauner, "were quite interested and shot questions at the lawyers arguing the case and one never really was quite certain on whose side their sympathies lay." This became clear 4 1/2 months later, on March 9, 1953, when the Supreme Court delivered its opinion in U.S. vs. Reynolds. The government, wrote Chief Justice Fred Vinson for a 6-3 majority, had made a valid claim of privilege against revealing military secrets, a privilege "well established in the law of evidence." The decisions of the District Court and the Court of Appeals -- of Judge Kirkpatrick and Judge Maris -- were therefore reversed. By "well established," the Supreme Court meant that the state secrets privilege was rooted in common law. Now, though, the high court formally recognized it, which made it binding on all courts throughout the nation. The justices also spelled out a procedure for how the privilege should be applied. The privilege must be asserted by the government, they instructed, and it is not to be lightly invoked. There must be a formal claim lodged by the head of a department only after his personal consideration. The court itself must determine "whether the circumstances are appropriate for the claim of privilege," and yet do so "without forcing disclosure of the very thing the privilege is designed to protect." This last, of course, was the tricky part. To resolve it, Vinson presented a "formula of compromise" that essentially said the government shouldn't have absolute autonomy, but courts shouldn't always insist on seeing the documents. You can't abdicate control over the evidence, Vinson instructed trial judges, but if the government can satisfy you that a reasonable danger to national security exists, you shouldn't insist upon examining the documents, even alone in chambers. U.S. vs. Reynolds clearly rose from the context of the times. In 1949, the Soviet Union had staged its first atomic bomb test, and in October 1951 had dropped a bomb from its own version of a B-29. In March 1953, the Cold War was intensifying, the Korean War still waging, McCarthyism spreading. Fourteen weeks later, Julius and Ethel Rosenberg would be executed as spies, the Supreme Court having denied a last-minute stay. Like now, a threat appeared to exist not just overseas but on America's own shores. Chief Justice Vinson acknowledged all this in a conclusion that could have been written today. "In the instance we cannot escape judicial notice that this is a time of vigorous preparation for national defense. Experience in the past war has made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that newly developing electronic devices must be kept secret if their full military advantage is to be exploited in the national interests. On the record before the trial court, it appeared that this accident occurred to a military plane which had gone aloft to test electronic equipment. Certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission." At bottom, Vinson's opinion represented an act of faith. We must believe the government, he held, when it claims this B-29 accident report would reveal state secrets. The Supreme Court hadn't dismissed the case, only remanded it to district court for retrial. In preparation for that, Biddle decided to depose the three surviving crew members -- something he'd resisted earlier, believing the government's offer of them was a diversionary tactic. On April 29, he reported the result to the three widows: "As I anticipated, they made it quite clear that the secret equipment on board the plane had absolutely nothing to do with the accident and had not even been put into operation." None of that mattered. The government, having established the precedent it sought, had little remaining interest in battling the widows. In late June, government attorneys agreed to settle the case for a total of $170,000 -- just $55,000 less than what Kirkpatrick had originally awarded. In exchange for signing "full and final" releases of their claim, Phyllis Brauner received $49,855.55 (the equivalent of $349,926 today), Elizabeth Palya $48,355.55 ($339,398) and Patricia Reynolds $39,288.90 ($275,759). For his legal work, Charles Biddle earned $32,500 ($228,109), a contingency fee of just less than 20%. Near the end of 1953, Biddle wrote to Phyllis Brauner: "As you know, I hated to settle the case because I thought if we had carried it through to a finish we could have gotten substantially more. However, something might have gone wrong and perhaps it was better to be sure of receiving the amount which you did." In other words: The widows got their money, and the government got its privilege. The next round would be up to Judy Palya Loether. * About This Story This story is drawn from court records and government reports, as well as interviews over eight months with lawyers, law professors and all central characters. They include Judy Palya Loether, Susan Brauner, Cathy Brauner, Patricia Reynolds Herring, Bernard Zachry, Michael Zachry, Robert Zachry, Wilson M. Brown III, Jeff Almeida and Charles Biddle's son, James Biddle. Thoughts and emotions attributed to the characters come directly from them. Descriptions of the crash site and the Zachry farm derive from a visit to Waycross, Ga., and a tour of the farm. Descriptions of Charles Biddle and his ancestral home are drawn from a visit to Andalusia and a tour of the estate provided by James Biddle, who shared family scrapbooks, histories, tapes and his father's memoir, "The Way of the Eagle." The context and impact of U.S. vs. Reynolds are based on law review articles, case files, legal textbooks and interviews with attorneys and professors specializing in national security law, including Jonathan Turley, Kate Martin, Mark Zaid and Peter Raven-Hansen. Passages that narrate the B-29 crash derive from declassified Air Force documents, including the official accident report ("Report of Special Investigation of Aircraft Accident Involving TB-29-100BW No. 45-21866"); supplementary memos and summaries; statements and sworn testimony by crash survivors Herbert W. Moore Jr. (copilot), Earl W. Murrhee (flight engineer), Walter J. Peny (left scanner) and Eugene Mechler (civilian engineer); statements by witnesses near Waycross, maintenance foremen, investigators and the B-29's previous flight crew; the crew roster; maintenance reports; weather reports; and diagrams, maps and photos of the crash site. The narration also derives from historical articles about the B-29; newspaper articles published the week of the crash; Eugene Mechler's letters to Judy Palya Loether; Susan Brauner's memories; and interviews with Zachry family members. Passages that chronicle the legal case resulting in U.S. vs. Reynolds are based on the original case file, including the complaint, responses, interrogatories and briefs; the transcript of record stored at the U.S. Supreme Court; the transcript of proceedings before Judge William H. Kirkpatrick on Aug. 9, 1950; the sworn affidavits signed by the secretary of the Air Force and the judge advocate general; the transcript of the trial for damages before Kirkpatrick on Nov. 27, 1950; the Court of Appeals decision by Judge Albert Maris in December 1951; the government's petition for a writ of certiorari; the briefs filed to the Supreme Court; the Supreme Court decision by Chief Justice Fred Vinson in March 1953; the petition for a writ of error coram nobis filed by Drinker Biddle & Reath in February 2003; the response of the United States filed by the solicitor general in May 2003; and correspondence between Charles Biddle and the three widows. Descriptions of Project Banshee are drawn from correspondence between Albert Palya and his colleagues; declassified Air Force documents; and a history of Eglin Air Force Base. The portrayal of RCA executive Frank Folsom is based on declassified Air Force documents and Folsom's original letter to Gen. Hoyt Vandenberg. Historical newspapers and photos of the principals and of the piece of B-29 wreckage are courtesy of family members; the photo of Chief Justice Fred Vinson is from Associated Press archives; and the photo of attorney Charles Biddle is courtesy of Drinker Biddle & Reath. * Coming Tomorrow Judy Palya Loether climbs into her mother's attic in search of secrets. What she finds is a key to her own past and the government's way of hiding facts. On the Web For additional photographs and documents, go to http://www.latimes.com/B29 [ Researcher Nona Yates contributed to this report. ] * * * April 18, 2004 DAVID HICKS ACCUSED OF HAVING BEEN TRAINED BY AL-QAEDA Reporter: Lisa Millar HTML: http://www.abc.net.au/correspondents/content/2004/s1089469.htm Real: http://www.abc.net.au/reslib/200404/r19366_47761.ram HAMISH ROBERTSON: Last week, a US Defence intelligence agency officer who interrogated detainees at Guantanamo Bay, revealed on American television that Australian David Hicks had trained in an al-Qaeda camp and had been asked to become a suicide bomber. David Hicks refused to do so, but his interrogator believes that he is still a continuing threat. David Hicks' military lawyer, Major Michael Mori, says he can't confirm or deny that information, and he's still waiting to learn of the official charges against his client. Major Michael Mori has been speaking to our North America Correspondent Lisa Millar. LISA MILLAR: Major Mori, were you surprised to see that an interrogator was speaking out publicly about what he said he'd learned from David Hicks? MICHAEL MORI: Well, I was little surprised in the fact that the very strict procedures that I must go through to speak to the media, I'm not sure if he was required to go through any of the same procedures. LISA MILLAR: Did you learn anything new from what he had to say? MICHAEL MORI: No, no and I really can't confirm or deny whether what he said is accurate, because I'm still under that protective order. LISA MILLAR: And what about the information that David Hicks refused to be a suicide bomber? MICHAEL MORI: Again, I can't say whether that's accurate or not. But I think the comments echoed what I've been saying all along -- that David Hicks has not shot or injured any US service members. He's not a terrorist and he did not want to participate in any terrorist activities. LISA MILLAR: But the interrogator did say David Hicks was in an al-Qaeda camp. MICHAEL MORI: Again, I can't comment on whether it was accurate or not, but here is this person who claims to have knowledge, echoing the same thing that we've said all along -- that he didn't shoot at, you know, US armed forces; that he wasn't a terrorist, and so it really raises the question of why he's been locked up for two-and-a-half years of his life almost. LISA MILLAR: The information that you heard about David Hicks, do you think it's going to help or hinder your case? MICHAEL MORI: Look, the only thing that is going to help David Hicks, is if he receives a fair trial and we're able to defend him in a fair justice system. That's the only thing that's going to help David Hicks and that's what we're fighting for and arguing for. LISA MILLAR: Is there any advancement on the time line for charges, Major Mori? MICHAEL MORI: No, no, still just waiting for charges to be issued in this case. LISA MILLAR: Could they come next week? MICHAEL MORI: They could come -- I wouldn't be surprised -- in two days or two months. At this point I'm done guessing on what the Government is going to do. I'm just waiting on the charges, I'm waiting to get the proper assets I need to prepare David's case and like I said, I'm not afraid to meet the Government in a fair, justice system. And we will prepare for that and be ready for it, but unfortunately it looks like the Government is not going to be willing to use a fair justice system. HAMISH ROBERTSON: Major Michael Mori, speaking to Lisa Millar in Washington. * * * Gulf Daily News (Bahrain): April 17, 2004 CLASS ACTION PLAN AGAINST US By Robert Smith http://www.gulf-daily-news.com/printnews.asp?Article=79352 Families of Bahraini detainees at Guantanamo Bay are being encouraged to join a legal action being put together in the US. Human rights lawyers are planning to file a class action case in the US Federal Court, which aims to grant basic rights to detainees. So far relatives of 34 Yemeni detainees have agreed to take part in the action being planned by Justice in Exile - a US-based rights movement. Now it is trying to build support among families of other detainees - including those from Bahrain. "The Bush administration takes the position that Guantanamo Bay is a law-free zone," said human rights lawyer Clive Stafford-Smith, who is putting the action together. "That they can violate human rights and there is nothing any court can do about it." A hearing is scheduled for the US Supreme Court on Tuesday in which 16 detainees will appeal against an earlier ruling that they fall outside the jurisdiction of the US legal system. If the appeal is successful it will mean the decision will be reversed - allowing them to take their individual cases to an American court, which will decide whether they are being held illegally. Justice in Exile's class action is being put together as a separate case. "We are trying to help provide representation for everyone else," said Mr Stafford-Smith. "What we are going to bring is a class action demanding lawyers for people in Guantanamo Bay. "At the same time we are trying to organise it so that if anyone is charged - we can provide them with lawyers too." Mr Stafford-Smith had been representing two British detainees, Shafiq Rasul and Asif Iqbal, who were released around six weeks ago. He is hoping to travel to the Gulf in the next three or four months to build support for the new case. Lawyers need the permission of detainees' families before they can represent them - something they are prepared to do free of charge. "We are a charitable organisation," said Mr Stafford-Smith. "We will do it for anyone and everyone who needs help - for free." The US claims that detainees are not eligible to be tried within the US court system because they are not US citizens and are not being held on US soil. A Pentagon official on Tuesday described them to the GDN as prisoners of war - and could therefore be held indefinitely. However, Mr Stafford-Smith says if that is the case they are being denied their rights under the Geneva Convention. "They have a right under the Geneva Convention for a hearing to determine their real status," he said. "They are not being given any hearing." Meanwhile, Bahrain Centre for Human Rights (BCHR) president Nabeel Rajab backed the class action. "We are going to be encouraging families of the Bahraini detainees to get involved," he said. "Until now none of the Arab detainees have tried to take their case to the US." The six Bahraini detainees are Shaikh Salman bin Ebrahim Al Khalifa, Salah Abdul Rasool Al Blooshi, Abdulla Majid Al Naimi, Adel Kamel Hajee, Essa Al Murbati and Juma Mohammed Al Dossary. * * * The Village Voice: April 16th, 2004 The Hidden Supreme Court TEST YOURSELVES: HOW MANY OF YOU CAN RECOGNIZE THE NINE MOST POWERFUL AMERICANS? by Nat Hentoff http://www.villagevoice.com/issues/0416/hentoff.php In April 28, the Supreme Court of the United States will hear oral arguments in two cases that New York Times reporter David Stout noted are likely to result in rulings of "profound importance, drawing the lines between the powers of courts and the administration and, perhaps, affecting the civil liberties of Americans in ways not yet imagined." (Emphasis added.) The justices will hear the cases of two American citizens, Yaser Esam Hamdi and Jose Padilla, who have been held as "enemy combatants" in Defense Department prisons on American soil indefinitely, incommunicado, without charges, and without the continual Sixth Amendment guarantee of access to a lawyer. Bush's solicitor general, Theodore Olson, had tried for months to persuade the high court to not even hear these cases, insisting that "the Constitution leaves these core political questions to the president as commander-in-chief. . . . The courts have no jurisdiction . . . to evaluate or second-guess the conduct of the president and the military." It was George W. Bush, without going to the courts or to Congress, who, by himself, decided that Hamdi and Padilla, though American citizens, were entitled to none of the fundamental due process rights in the Constitution. No previous president has done this. If the Supreme Court agrees with George W. Bush -- says Judge Barrington Parker Jr. of the Second Circuit Court of Appeals -- "we would be effecting a sea change in the constitutional life of this country." (Emphasis added.) The third case to be argued before the high court, on April 20, is about whether the noncitizens, our alleged "enemies," imprisoned by us indefinitely at Guantánamo, Cuba, have any recourse to American civilian courts to rescue them from the legal black hole that Bush's team has put them in. In that hole, even if they are acquitted by military tribunals under rules already rigged against defendants, they can still be kept in prison. To prevent Americans, and the rest of the world, from seeing firsthand reports from international human rights groups as to the fairness of the military tribunals at Guantánamo, Brigadier General Thomas Hemingway, a leading adviser in the Office of Military Commissions, sent this letter to Amnesty International, Human Rights Watch, and Human Rights First (formerly the Lawyers Committee for Human Rights) -- as reported by Neil Lewis well inside the February 24 New York Times: "It is expected that limited courtroom seating and other logistical issues will preclude attendance" by these human rights organizations. There will be seats for the news media, but not many reporters have the specialized knowledge to compare the Bush rules for defendants with the Geneva Conventions and other international treaties this country has signed. But limiting this coverage of the military tribunals, though sneaky, is not as contemptuous of Americans' vaunted "right to know" as the Supreme Court's absolute refusal to allow television cameras in the courtroom during the April 28 oral arguments, or any other courtroom at any time. This historic event concerns not only American citizens Hamdi and Padilla but also any president's power to call any of us "enemy combatants" and put us away indefinitely. Attorney General John Ashcroft, speaking for the Bush administration, has said that even American streets are "combat zones" in the war on terrorism, allowing American citizens to be busted right here. Jose Padilla was picked up at Chicago's O'Hare Airport. Of all American institutions, the Supreme Court is the most distant from the rest of us. The late justice William Brennan told me he wanted its oral arguments open to television because he felt strongly that most Americans had little sense of how this body -- which makes decisions affecting millions of us -- actually arrives at those decisions. Brennan pointed out that with few exceptions, most newspapers do not cover the court's work in depth, and both broadcast and cable television are of even less use. The Internet is limited and uneven. Seeing the justices during oral arguments -- where they are often actually trying to persuade each other in the guise of asking questions of the lawyers before them -- provides, as I can attest, insight into their ways of reasoning, their temperament, and their biases. Incredibly, the cold transcripts of these oral arguments -- which few Americans ask to see in printed form or on the Internet -- do not give the names of the justices asking the questions. It's as if they were wearing masks. The late Harry Blackmun was the author of the Court's decision in Roe v. Wade, which brought him thousands of fiercely denunciatory letters -- and a rock thrown through the window of his Washington apartment. Yet Justice Blackmun took ironic delight, cloaked in anonymity, in joining the outskirts of a crowd of demonstrators near the Supreme Court who were lustily denouncing him for securing the right to abortion. One morning, I was in Justice Brennan's chamber shortly after a 1990 survey by the National Law Journal and Lexis that included a question as to how many Americans even knew the names of all the justices. Only 3 percent knew Brennan. (Fifty-nine percent couldn't name a single justice.) Chuckling, Brennan reminded me that only 2 percent knew the name of Harry Blackmun. How much do you know about the nine current justices -- how and why they got on the Court and their records on civil liberties, civil rights, life and death? Justice David Souter has said that cameras will come into the Supreme Court only over his dead body. Damn it, it's not his Court. It's our Court. If you want to find out what happens on April 28, your best guide is Linda Greenhouse in The New York Times, who Justice Brennan told me was the most reliable of journalists covering the Court. * * * San Luis Obispo Tribune: April 16, 2004 SUPREME COURT TO EXAMINE BUSH'S POLICIES ON THE WAR ON TERROR By Stephen Henderson, Knight Ridder Newspapers http://www.sanluisobispo.com/mld/sanluisobispo/news/politics/8450418.htm WASHINGTON (KRT) - Leslie Jackson knows it wasn't Nazi benevolence or luck that saved his life during the 13 months he spent in Stalag 17b after his bomber was shot down over Germany during World War II. It was the rule of law, the agreements among nations about how enemy captives must be treated. Since Sept. 11, 2001, the Bush administration has been arguing that there are times when those rules shouldn't apply, when the importance of our nation's security trumps any obligation to due process. It's detained more than 600 foreign nationals captured on the battlefields of Afghanistan without honoring their rights under international or U.S. law. It's done the same with two American citizens who've been held without charges or access to lawyers. Over the next two weeks, the Supreme Court will review these policies in four of the most pivotal cases this term. The justices will hear arguments in cases that will decide whether the administration's war on terrorism is being conducted in accordance with constitutional restraints or whether it represents an unprecedented, and illegal, power grab on the part of the executive branch. When Jackson was a prisoner, the rule of law meant he got American Red Cross parcels and clothes from the States. It meant that the "Geneva man," an international observer who inspected the camp for compliance with international law, was allowed to make quarterly visits. "It was tough living, and we had the absolute minimal," Jackson says. "But they didn't go out of their way to mistreat us, and they didn't because there were rules that even the Germans tried to follow." Jackson fears that if the Bush administration wins in the Supreme Court, Americans captured abroad in the future might not fare as well as he did. "If we don't follow the rules, the barriers come down for other nations," he said. "Why should other countries worry about due process if we don't?" Jackson's position is backed by dozens of other former American POWs in briefs filed in two of the cases. They represent a mere sliver of the broad coalition of liberal and conservative interests that have aligned to oppose the Bush administration at the high court. Civil liberties groups from across the political spectrum have complained about the detentions, as have former diplomats, former military officers and federal judges, law professors and public defenders The political stakes for the administration in these cases are also quite high. Already weathering criticism about the adequacy of its efforts to protect the nation before the terrorist attacks in New York and Washington, the administration could be dealt another election-year blow if the justices determine that its post-attack policies have been unconstitutional. "You could have the Supreme Court saying this was executive fiat," said Deborah Pearlstein, the director of the U.S. law and security program at Human Rights First, which filed briefs supporting the detainees. "The question is whether the executive has the power to do this, and if so, what are the restraints? It's a huge question to answer." The first two cases to be heard, on Tuesday, involve detainees who've been at the U.S. base at Guantanamo Bay, Cuba, since being captured during hostilities in Afghanistan in 2002. The administration declared them "enemy combatants" who posed an ongoing threat to the nation's security, and said that designation put them in something of a legal limbo: neither prisoners of war subject to international law nor criminal suspects under American law. The high court is considering whether the detainees should be able to challenge their status in the U.S. legal system; it won't consider the legality of their detentions. A lower court has ruled that the detainees may not access the American legal system. In the other two cases, scheduled for April 28, two U.S. citizens who've been declared enemy combatants will challenge their status before the justices. Yasir Hamdi was captured alongside the Guantanamo detainees in Afghanistan and declared an enemy combatant. But he later revealed that he was an American citizen, and was moved to a Navy brig in South Carolina. The Bush administration says that despite his citizenship, he isn't entitled to the criminal due process other citizens get because he's an enemy combatant who poses an ongoing threat. Jose Padilla was arrested in 2002 in connection with a "dirty bomb" plot and later designated an enemy combatant by the Bush administration. Like Hamdi, he's been held without charge and until recently without access to a lawyer. In all the cases, the administration argues that the president's role as military commander in chief grants him an explicit right to deal with security threats outside the scope of international or U.S. law during wartime. The administration also argues that all the detainees have had their status reviewed extensively to guard against abuse, and it has no intention of holding them indefinitely without processing them. Hamdi and Padilla were allowed to visit with lawyers after nearly two years in captivity, and several of the Guantanamo prisoners have been released. Key to the administration's position, though, is the idea that the president and his advisers, rather than the law, should decide when and how due process is granted in these circumstances. That may be the toughest point to win with the high court. Under Chief Justice William H. Rehnquist, this court has been as assertive as any in history with regard to its review of congressional and executive actions. Jay Sekulow, the chief legal counsel for the American Center for Law and Justice, said the administration was handling these detainees in the most logical way it could. "In the war on terror, we're not fighting against other nation-states whose people could be described as prisoners of war when captured," Sekulow said. "And the whole purpose of holding them is to get information from them about future threats, not to punish them for criminal activities, so they aren't entitled to lawyers or proceedings in U.S. courts." The center filed briefs in support of the administration in all four cases. Jackson and some others say the government's position violates the very notion of the rule of law. "We're based on the idea that we have this government of limited powers, and it can't do anything that the people haven't given it the power to do," said Pearlstein of Human Rights First. "But the administration is saying that there's a very broad idea, not written in the Constitution or anywhere else, that the executive can define some people as having no rights at all. That's not law. It's something very different." Bill Rogers, a former diplomat and undersecretary of state who joined a brief in support of the detainees, said the problem was that the administration wasn't acknowledging any responsibility beyond capturing and holding the prisoners. "Of course, the president should be able to detain people who pose a threat, but that's just the beginning of the process," said Rogers, who's also active in former Secretary of State Henry Kissinger's international consulting firm. "There's a fundamental principle in this country that no person shall be restrained without due process of law, and these detainees have had none of that." Rogers' brief said the Bush administration's policies threatened to undermine the nation's diplomatic authority with other countries. "We're purported to be enhancing democracy around the world," Rogers said. "But it's clear from my experience abroad that when we're untrue to those principles ourselves, we seem hypocritical, and we're less effective." Jackson said the detentions reminded him of the difference between how he was treated as a prisoner of Germany, which observed the Geneva conventions, and what prisoners of Japan experienced during World War II. Japan wasn't a Geneva signatory, and it brutalized Americans and other captives during the war. "I had a certain experience as a captive specifically because of the law, and it would probably have been very different if I was being held by a country that didn't observe the law," Jackson said. "We aren't starving our detainees or anything like that, but we are denying them due process, and that's just a big problem." * * * St. Louis Post-Dispatch: April 17, 2004 COURTS MUST GUARD LIBERTY IN WAR By Richard H. Kohn, Special to the Post-Dispatch http://www.stltoday.com/stltoday/news/stories.nsf/News/NewsWatch/7D85EB0C0E2E003 C86256E7900788453?OpenDocument&Headline=Courts+must+guard+liberty+in+war++ This month the Supreme Court hears three of the most significant cases in a generation. Can the government indefinitely imprison Americans Yasser Hamdi and Jose Padilla as unlawful enemy combatants without access to counsel, formal charges, or trial? Can foreigners captured overseas be likewise incarcerated during a "war on terror," which may last a generation, just because the American base at Guantanamo Bay isn't on American or foreign soil? These are only the most famous of many cases coming before the federal judiciary: prosecutions of suspected terrorists, the detention or expulsion of immigrants (legal and otherwise), crimes alleged under provisions of the Patriot Act, trials before military commissions, and more. All concern the relationship between the individual and the state, or more broadly, the government and the people. All involve a tradeoff between the exercise of personal freedom and the responsibility of the state to protect the population from attack. All come down to the balance between liberty and security, a dilemma very much on the minds of the authors of the Constitution and Bill of Rights two centuries ago. Thus the federal judiciary will play a crucial role in the "global war on terrorism." A review of our history is not reassuring, however. In war, the executive branch by necessity expands in power; Congress and the judiciary recede, deferring to the president and his officers. People are jailed (and occasionally worse) under questionable circumstances and even more questionable procedures; property is confiscated; the mails are denied to publications; speech is circumscribed; the population is spied upon by the military and other government agencies; and all the rest so well known to historians and jurists. From the Alien and Sedition Acts in 1798 through to today, a triple whammy of deference has weakened the judiciary: deference to the executive in times of war; a larger deference in national security more broadly; and deference to the armed forces as functional experts who define our military situation and who operate under their own peculiar legal system, designed more to support the waging of war than to render justice. The prosecutions and detentions will come to the federal courts not simply as crimes but as necessities of war. The Justice Department has repeatedly advanced this claim. But is it true? War is not a clear condition, like pregnancy, but often quite ambiguous. Until Sept. 11, 2001, few Americans viewed the terrorist threat as war. Nor is it intuitive, like pornography, in Justice Potter Stewart's famous formulation, one knowing it when one sees it. In every case, judges will have to subject the government's assertions to critical scrutiny, and for help they must look to American historical experience. In some respects, this is a war. The United States has been attacked and will be again, as often and as catastrophically as possible; it responded with two military campaigns, overthrowing governments and occupying their countries. Among other things, government agencies and foreign policy have shifted to a war footing ("I'm a war president," President Bush told Tim Russert), and Congress and the Democrats, including Sen. John Kerry, have accepted, at least publicly, the change. Yet much does not fit the normal pattern. In war we define an enemy precisely in order to set goals, formulate strategy, and measure victory or defeat. Terrorism is a tactic and a strategy, not an adversary. It can no more be eliminated than can evil. Indeed, the Bush Administration has announced no strategy, no definition of victory, no estimate of how long the war might last. Last October in a memorandum to his topmost advisers, Secretary of Defense Donald Rumsfeld suggested that the government does not know whether it is winning the war on terror, and lacks the concepts or standards even to measure progress in the struggle. In war, the nation mobilizes; the government rallies the people for sacrifice and conservation, raises taxes to avoid inflation, and abandons domestic agendas; and the president governs in a bipartisan fashion. But Bush called immediately for normalcy, continued to seek tax reductions and has neglected bipartisanship. The Administration has not acted with urgency - in homeland security, in investigating 9-11 or intelligence failures, in accelerating nuclear nonproliferation initiatives, particularly with Iran and North Korea - as one would expect in war. Nor has the administration communicated urgency to the American people, except to attack Iraq. Outside of Washington and New York, and key government agencies, there is no war atmosphere; indeed polls show more concern about the economy and other domestic priorities than terrorism. Most importantly, war implies dropping everything else for a )))))))) limited )))))))) time, but this war is permanent. Despite our corruption of the term (wars on drugs, poverty, etc.), war involves a clash of arms. Yet as the Bush administration has emphasized, this is different, and Rumsfeld has resisted any increase in the military If this is not a war, then what is it? The answer is that catastrophic terrorism is simply a new condition of American life. Americans have experienced - even used - terrorism in their history, from conflicts with American Indians and bombings by labor radicals to Klu Kluxers in the South. Britain and Israel have faced terrorist campaigns in recent times but neither let its foreign policy or domestic life be subordinated to the terrorist threat, nor did those nations define the enemy as terrorism as opposed to those perpetrating the violence. Threatened with terrorism for decades, Europeans have fought back without the wholesale changes involved in war. What is new is the scale, the promise of murder so massive as to threaten the organization and cohesion of society. Rather than by clash of arms, the struggle will be decided by intelligence and law enforcement organizations that pinpoint these enemies, stymie their plans, and kill or capture their operatives in cooperation with foreign counterparts, especially to keep nuclear and biological weapons out of terrorists' hands. Comparable effort will to go to homeland security. Radical Islam may have declared war on us, but to accept it allows the enemy to define the conflict, and indeed our response has raised Al Qaida and its allies to a pitch of grandeur and respect inside the Muslim world quite beyond their wildest dreams. The confusion over war is revealed in the President's own rhetoric when he talks about bringing Osama bin Laden to justice, or justice to him. The truth is that the United States is )))))))) more secure )))))))) than at any time in its history. Nothing threatens our independence. No one can invade or subjugate us, as before. Our internal divisions aside, no grinding social or economic conflict threatens violent upheaval or civil unrest, as in our past. No form of government or social system competes with democracy and market capitalism across the globe. In fact, American freedoms, products and culture are the envy of the world, and this is unlikely to change no matter how much we frighten or antagonize other countries. Yet we are also )))))))) more vulnerable )))))))) than ever before, as recent attacks reveal. We cannot guard every railroad track or passenger car. Terrorists can walk across our borders and blow themselves up in our subways or shopping malls. Anthrax could be infiltrated into the environmental systems of our office buildings and public spaces. The )))))))) greatest danger )))))))) to the United States is not catastrophic attack, as awful as it would be. The greatest danger is our )))))))) reaction: )))))))) Believing ourselves in a war - something temporary - we rebalance liberty and security in a way that becomes permanent. Suddenly we panic, and the judiciary, in a war frame of mind, stands aside. The very permanence of the danger accentuates the peril. Our government has stated frankly that the struggle is unlike any we have ever faced and will go on indefinitely. If the judiciary accepts uncritically a state of war which lacks all the normal parameters of location, character and duration as the basis for redefining the relationship between the individual and the state, even without a catastrophic event federal judges may find themselves presiding over a permanent change in the nature of American government, a diminution of freedom, step by small step. These are the implications of the cases the Supreme Court will hear on Tuesday and April 28. The numerous individual claims of virtually anonymous people that federal judges decide, make up, in bits and pieces, the larger mosaic of American government and define the nature of American freedom. Judges in past national security cases have risen to this challenge. In his 1998 book, "All the Laws But One: Civil Liberties in Wartime," current Chief Justice William Rehnquist accepts the balance between liberty and security in our past with all of its excesses, but nevertheless calls on the bench to exercise independent judgment: "It is both desirable and likely that more careful attention will be paid by the courts to the basis for the government's claims of necessity as a basis of curtailing civil liberty." Courts cannot avoid judgment about the extent of the danger. Recently, the chairman of the Joint Chiefs of Staff called terrorism "the biggest threat our nation has faced at least since the Civil War, perhaps ever." But another general, a retired Marine combat veteran of World War II, Korea and Vietnam, who founded and directed for 25 years (1971-1996) the Marine Corps Historical Center and has written many works of history, believes just the opposite: that while terrorists can kill tens of thousands of Americans and destroy billions of our property, they can do nothing to us that we cannot absorb or survive. Expert testimony, both; judges must decide. In the end, federal courts will have to confront dilemmas of historic proportions. How independent will the judiciary be? How will each judge balance liberty with security? To what extent will they defer to the other branches in applying the law and interpreting the Constitution? Will they subject the government's arguments and assumptions to critical analysis, and insist upon persuasive evidence of the danger we face, the necessity for extraordinary secrecy, the need to curtail individual rights - even suspension of the long- held right of )))))))) habeas corpus )))))))) - and other uncertainties at the very core of liberty, and national security? On the answers may rest the future of our freedom. [ Richard H. Kohn, a former Chief of Air Force History for the Air Force, teaches military history and chairs the Curriculum in Peace, War, and Defense at the University of North Carolina at Chapel Hill. This essay is adapted from remarks to a workshop for federal judges titled "Law and National Security in the War on Terrorism" at the Duke University School of Law in March 2004. ] * * * Inter Press Service: April 15, 2004 GUANTANAMO ISSUE TOOK TWO YEARS TO REACH UN COMMISSION By Gustavo Capdevila * The situation of some 660 prisoners living in legal limbo at the U.S. naval base in Guantanamo was brought up by Havana Thursday before the United Nations Human Rights Commission in Geneva, shortly after a resolution condemning Cuba's human rights record narrowly passed. http://www.ipsnews.net/interna.asp?idnews=23337 GENEVA, April 15 (IPS) - The situation of some 660 prisoners living in legal limbo at the U.S. naval base in Guantanamo was brought up by Havana Thursday before the United Nations Human Rights Commission in Geneva, shortly after a resolution condemning Cuba's human rights record narrowly passed. The Cuban delegation urged the Commission, the highest U.N. authority on human rights, to investigate the conditions in which the non-U.S. citizens of around 40 different nationalities are being held. Most of the men, who the United States describes as Al Qaeda and Taliban suspects, have been held at Guantanamo Bay in southeastern Cuba since January 2002. The Cuban petition on what it described as the "concentration camp" at Guantanamo was made public a few minutes after the Commission approved, by a vote of 22 to 21, with 10 abstentions, the declaration criticising the human rights situation in Cuba, which was presented by Honduras. Few governments have expressed concern over the conditions under which the detainees are being held in Guantanamo, which rights watchdog Amnesty International described this week as "a major human rights scandal that has widespread implications for the whole world." Javier Zúñiga, senior director at Amnesty, said "This policy promotes a world in which arbitrary and unchallengeable detentions become acceptable." The Chilean delegation was the only one of the 53 that make up the Commission to mention its concern over the situation in Guantanamo during the debate on the resolution against Cuba. Chilean representative Juan Martabit said the detainees were being held at the navy base without knowledge of their legal status, with no formal charges having been filed against them, and with no right to a legal defence. He also pointed out that the foreign ministers of Organisation of American States (OAS) member countries had stated that the war on terrorism must be carried out with full respect for the law, human rights, and the institutions of democracy, But Richard S. Williamson, the head of the U.S. delegation to the Commission, said the same "law of armed conflict (that) governs the war between the United States and (the) Al Qaeda" radical Islamist terrorist network applies in the case of Guantanamo. Williamson said "The war was clearly declared on September 11, 2001 when close to 3,000 innocent people were the victims of an evil, malicious and intentional attack by a fanatical group with twisted political goals." At the start of the Commission's annual session, Williamson argued that "the armed conflict falls under the rules for detention of enemy combatants", who the United States has the authority to detain, "under the law of armed conflict...for the duration of hostilities." This "is not a human rights issue," he insisted. But Jakob Kellenberger, president of the International Committee of the Red Cross (ICRC), lamented after meeting with senior officials in Washington three months ago that "two years after the first prisoners arrived, they still face indefinite detention beyond the reach of the law." The ICRC, which oversees the Third Geneva Convention guaranteeing minimum standards of treatment for prisoners of war, said last January that it had not yet seen "concrete results" on concerns it expressed about the conditions in which the detainees are held in Guantanamo, and the treatment they receive. In January 2002, then U.N. high commissioner for human rights Mary Robinson told Washington that the treatment of the detainees must be in line with the Third Geneva Convention. Washington has denied the detainees prisoner of war status, and reserves the right to try them in special military courts. Only a handful have been repatriated so far. The resolution presented by Cuba urges the Commission to demand that the United States provide "the information necessary to clarify the conditions and legal status" of the detainees, and to put an end to the denounced "violations." The proposal also calls for the special rapporteurs on torture and the independence of judges and lawyers, and the working group on arbitrary detention to report on the situation of the prisoners in Guantanamo. Despite the frequent clashes between Havana and the United States, Cuba had not raised the subject of Guantanamo at the United Nations until recently. The U.S. enclave in Guantanamo Bay dates back to a treaty signed by the two countries in 1903, and to a 1934 agreement that leased the area to the United States "in perpetuity". Cuban Foreign Minister Felipe Perez Roque said in Havana that his government would invite Honduras, which presented the resolution condemning Cuba's human rights record, to co-sponsor the Guantanamo petition. It also said it would ask the 22 countries that voted in favour of the declaration against Cuba to back the proposal on Guantanamo. The statement criticising Cuba was approved by the United States and the European members of the Commission: Armenia, Austria, Croatia, France, Germany, Hungary, Ireland, Italy, the Netherlands, Sweden and the United Kingdom. Australia, Japan, South Korea and seven Latin American countries -- Chile, Costa Rica, the Dominican Republic, Guatemala, Honduras, Mexico and Peru -- also voted in favour. It was opposed by Bahrein, Burkina Faso, China, Cuba, the Democratic Republic of Congo, Egypt, Ethiopia, India, Indonesia, Nigeria, Pakistan, Qatar, Russia, Saudi Arabia, Sierra Leone, South Africa, Sudan, Swaziland, Togo, Ukraine and Zimbabwe. Argentina, Brazil, Bhutan, Eritrea, Gabon, Mauritania, Nepal, Paraguay, Sri Lanka and Uganda abstained. Perez Roque said the resolution against Havana demonstrated "double standards and subordination to the interests of the U.S. government by the countries that lent their support to this scheme against Cuba." But unlike similar declarations approved by the Commission in the past, this year's does not explicitly condemn the government of Fidel Castro. It deplores the lengthy prison sentences handed down to 75 dissidents last year, and calls on Cuba to ensure freedom of expression and religion and to start a dialogue with Cuban political groups and dissidents, to develop democratic institutions and guarantee respect for civil liberties. Perez Roque pointed out that "not a single African, Arab or developing nation in Asia" voted in favour of the motion against Cuba, which he said was drafted by the U.S. State Department. On the contrary, he said, the resolution was backed by "developed and rich countries and minor allies of the United States" and by a group of Latin American governments "that are incapable of acting independently" of Washington. In Havana's view, the "merit" of the abstentions is even greater in the case of a group of African nations that it said were the targets of pressure and blackmail from Washington, including threats to withdraw economic aid and credit. Unlike previous years, however, the foreign minister did not directly lash out against Latin American presidents and governments that voted in favour of the resolution against Havana. Elizardo Sanchez, a leading Cuban dissident and head of the Cuban Commission for Human Rights and National Reconciliation, noted that "the great majority of the countries that supported the resolution have voted against Washington's (40- year-old) embargo against Cuba" in the U.N. General Assembly. The results of the vote are "positive," he told IPS, "if we take into account the appalling situation of civil, political and economic rights that continues to prevail in Cuba." Cuban ambassador Ivan Mora Godoy, meanwhile, said he was confident that the proposed resolution on Guantanamo would be discussed by the Commission next week, before the annual sessions end on Apr. 23. (* Dalia Acosta in Havana contributed to this report.) * * * Seattle Post-Intelligencer: April 15, 2004 ALL CHARGES DROPPED, BUT ARMY GAGS YEE By Mike Barber, Seattle Post-Intelligencer Reporter http://seattlepi.nwsource.com/local/169156_yee15.html The Army dismissed the final, minor charges against Capt. James Yee yesterday, tossing out the last thread of an espionage case that once tied him to a prison holding suspected terrorists but which later unraveled. However, the victory for Yee, a Muslim chaplain from Fort Lewis, will be a silent one. Yee spent 76 days in custody, suspected of being linked to a possible espionage ring at Guantanamo Naval Base, Cuba, then arrived home last month after the Army dropped criminal charges against him. On April 6, the Army handed Yee an order gagging him from speaking publicly about the case. "It was 'welcome home,' now here's a little friendly reminder," Yee's lawyer, Eugene Fidell of Washington, D.C., said last night. "Its clear purpose was to chill his exercise of free-speech rights. It was an order reminding him of the constraints on his free-speech rights and helpfully reminding him if he violates them, they would punish him criminally." Army Gen. James Hill, commander of the U.S. Southern Command, heard Yee's appeal and yesterday overturned the reprimand against the chaplain for committing adultery and downloading pornography, which was hastily issued after the criminal case was dismissed. "While I believe that Chaplain Yee's misconduct was wrong, I do not believe, given the extreme notoriety of his case in the news media, that further stigmatizing Chaplain Yee would serve a just and fair purpose," Hill said. Fidell, however, didn't like the tone of Hill's dismissal. The Army drew publicity to itself over the case with leaks last year, he said. "General Hill gave with one hand and took with another because he felt impelled for reasons that escape me to make some nasty comments about the case he was dismissing," Fidell said. The bottom line, however, "is that Chaplain Yee has had his record cleared," Fidell said. "We are going to persist in our hopes and our prayers that someone in a position of authority will apologize," he said. Yee, 36, a West Point graduate who left the Army for four years to study Arabic and Islam in Syria, was arrested Sept. 10 on suspicion of espionage after leaving Guantanamo. He had been assigned there temporarily from Fort Lewis, his permanent duty station, to counsel nearly 660 al-Qaida and Taliban prisoners. The Army never filed espionage charges against him. Instead, it charged Yee with failing to obey orders by mishandling classified materials and wrongfully transporting them without proper containers. In November, the government added more charges: making a false statement, storing pornography on his government computer and adultery with a female military officer at a motel in Orlando, Fla. The government's case unraveled as Yee's hearings were postponed six times over several months. The government's legal staff itself accidentally mishandled classified materials, and prosecutors acknowledged they were uncertain whether Yee had classified materials when he left Guantanamo. After criminal charges were dismissed, Yee was reprimanded on the adultery and pornography charges, lesser offenses. Fidell said last night that his team learned that the female officer who was the main witness against Yee in the adultery case was granted immunity by the prosecution only when she took the stand to testify. Despite what he has been through, Yee "is who he is," Fidell said, a native-born citizen and professional soldier who still believes in the nation's military. "It's been a privilege to represent him," Fidell said. "He has conducted himself with amazing dignity, the kind you would expect from a career Army officer and graduate of the military academy." [ Yee intends to continue his Army career at Fort Lewis. P-I reporter Mike Barber can be reached at 206-448-8018 or mikebarber@seattlepi.com This report includes information from The Associated Press. ] * * * ABC (aus): April 15, 2004 PM: 'INTERROGATOR' BRANDS HICKS A TERRORIST Reporter: Karen Percy http://www.abc.net.au/pm/content/2004/s1088226.htm MARK COLVIN: The American TV network, CBS, has aired potentially damaging allegations against Australian David Hicks. Last night the 60 Minutes II program interviewed a man who says he interrogated David Hicks at Guantanamo Bay. The man, referred to simply as "Tom", claims that the young Australian was so deep into the al-Qaeda group that at one stage he was asked to be a suicide bomber for the terrorist organisation. He says Hicks refused and that caused problems for him. It comes less than a week before David Hicks's lawyers are due in the Supreme Court to argue that the US has no right to detain Hicks and other suspected terrorists indefinitely. Some of them are angry that the prosecution case can apparently speak freely while they're gagged. Karen Percy takes a look at the details contained in the CBS report. (sound of ticking clock) EXCERPT FROM 60 MINUTES II PROGRAM: Tonight, we have the first television interview with one of the army interrogators who's been prying secrets out of those al-Qaeda suspects at Guantanamo Bay. KAREN PERCY: One of those suspects was David Hicks, according to CBS's 60 Minutes II program, which claims to have gained a detailed insight into what's going on at the detention camp in Cuba's Guantanamo Bay. (clock ticking) EXCERPT FROM 60 MINUTES II PROGRAM "TOM": The first time I saw David Hicks was when he got off the airplane. He had his goggles on, like they all did, so we couldn't really see his face, but we knew by his stature who he probably was. KAREN PERCY: It comes courtesy of a man known only as "Tom". Tom claims to have interrogated David Hicks and others in the months after the attacks on the World Trade Centres in New York. He told CBS that American authorities believed David Hicks was part of an al-Qaeda plot to use Westerners to infiltrate the United States, and that al-Qaeda wanted the Australian to make the ultimate sacrifice. EXCERPT FROM 60 MINUTES II PROGRAM "TOM": He only backed off at a point where he was asked to be a suicide bomber. Where he was presented with training that would involve with running a terrorist cell, and sort of being prepared to strap on a bomb, or to drive a car bomb, or to crash a plane, something along those lines, and he resisted KAREN PERCY: But those claims have been rejected by David Hicks's father, Terry. TERRY HICKS: If he was trained and all this sort of thing and had come to that final crunch, he wouldn't do it. KAREN PERCY: A month ago Terry and Bev Hicks were interviewed by CBS for the program. (excerpt from 60 Minutes II program) REPORTER: They've told you that David is being held on suspicion of what? BEV HICKS: Nothing. TERRY HICKS: Well, they haven't told us. BEV HICKS: He's just captured. (end excerpt) KAREN PERCY: But at that time they were not made aware of the claims that their son had been approached to be a suicide bomber. An angry Terry Hicks was speaking from Adelaide today. TERRY HICKS: If the Americans have extracted all this information that they keep telling us about, how come he hasn't been charged? KAREN PERCY: David Hicks is among 600 detainees at Guantanamo Bay. Tom the interrogator claims the US action is as much about keeping those men off the battlefield and getting information from them, as it is about taking them to trial, and he doesn't believe David Hicks should be freed anytime soon. EXCERPT FROM 60 MINUTES II PROGRAM "TOM": David Hicks is a wildcard. It's difficult to say whether he would be an immediate threat. He'd led us to believe that he would, if released, he would simply go back to his Australian home and find work on a farm someplace. My personal opinion, and my opinion alone, is that David Hicks would be a continuing threat. KAREN PERCY: US officials have tried to gag David Hicks's Australian based lawyer, but Stephen Kenny was prepared to make some comments on these allegations. STEPHEN KENNY: I would say that on the information and knowledge I have, I think that's a complete load of rubbish and I don't think there's any credibility in that report at all. KAREN PERCY: Are you concerned that it's an interrogator coming forward, that's putting these allegations? STEPHEN KENNY: I'm extremely concerned about that and quite mystified as to why he would be allowed to when we are so restricted on what we can say, but I think that despite those restrictions, I must say that I think that that is not believable. KAREN PERCY: Next week, David Hicks's lawyers in the US are due in the Supreme Court to challenge the right of the United States to detain David Hicks and others indefinitely. An outcome is not expected until late June. MARK COLVIN: And all of that comes just as the Australian Federal Police are saying that they've arrested a 21-year-old man from Sydney's western suburbs and charged him with receiving training from a terrorist organisation. We'll be hoping to bring you more on that story during this program. * * * CBS News -- April 14, 2004 THE INTERROGATOR 60 Minutes II http://www.cbsnews.com/stories/2004/04/06/60II/main610556.shtml (CBS) Approximately 600 prisoners have been held at Guantanamo Bay since the war in Afghanistan -- many pulled from the camps of al Qaeda. For two years, we've heard almost nothing about what they've revealed. But Correspondent Scott Pelley has the first television interview with an interrogator from Guantanamo who was sent to find out how al Qaeda works. His name is Tom, and he didn't want 60 Minutes II to use his full name. He came to Cuba for the Defense Intelligence Agency to design and supervise the interrogations. One of the prisoners he learned the most from was an Australian cowboy named David Hicks. ---------------------------------------- In the months after Sept. 11, prisoners from the battlefield in Afghanistan were the most important cargo on any Air Force transport. A few were al Qaeda and they were on their way to Cuba to meet an unassuming Army reserve sergeant from Connecticut who had some questions. "Who’s involved, who was paying them, where they're hiding. Where their supplies were coming from. Who the recruiters were. Anything and everything that you can do to tear apart the network," says Tom. What about recent reports that the prisoners really had very little information to give? "There are certainly some people who fit that description and there are certain people who provided wealths of information," says Tom. "Keys to the network, how it works, who was involved, how it fundraises, how it recruits, how it travels. Ongoing operations, imminent attacks on a number of occasions." He wouldn't say more about those imminent attacks, because that information is still classified. But he did describe how the interrogations were held in plywood huts on the base. Prisoners were seated, chained down through that loop in the floor, and made to look directly at their interrogator for hours at a time. The first thing that Tom had to do was convince some the prisoners that 9/11 really happened. "Some of them believed it was completely made up, some believed that the buildings were still there, some believed it was a Jewish conspiracy," says Tom. To convince them, Tom showed them pictures. Their reaction? "It varied widely from outright denial to complete collapse and shame," says Tom. "Some people were just so horribly ashamed of what had happened they were doing everything they could to cooperate with us, but we saw the other end of the spectrum, too, where they just didn’t say a word and could care less." ---------------------------------------- Of all the prisoners streaming in, Tom had been warned to be on the lookout for one person in particular: David Hicks. "The first time I saw David Hicks was when he got off the airplane. He had his goggles on, like they all did. So we couldn't really see his face," says Tom. "But we knew by his stature -- who he probably was." Even behind blindfold goggles, Tom could tell it was the 26-year-old Australian -- a cowboy by training. For Tom, questioning Hicks was a priority because intelligence worried that he might have been part of a plot to infiltrate the U.S. with western, English-speaking terrorists. Was Hicks al Qaeda? And if not, what was he doing on the battlefield in Afghanistan? "I don’t even understand why he was in Afghanistan. Neither of us understand why he was there, what the hell he was doing there," says Hicks’ stepmother, Bev. She and his father, Terry, say their son is an adventurer, not a terrorist. "We always said David was born 50 years too late," adds Terry. "If he was born, say 50 to 100 years ago, he would have fitted in beautifully for his adventurous sprit." Hicks didn’t fit in as a young man. He got into trouble doing drugs and stealing cars. But that seemed to turn around once he found religion and, to his parents’ surprise, he became devoted to Islam. "I worried in the beginning. I’d come home from work and I’d know he’d be home and I’d say, ‘Hi.’ And no one would answer me," recalls Bev. "At first, I couldn’t understand and then I’d go down the hallway. And David would be praying." Prayer led to pilgrimage, and Hicks set out in 1999 for Pakistan and Afghanistan. His parents never saw him again. After David was captured, Terry Hicks left Australia for the first time in his life to try to make sense of what had happened. A documentary film crew followed him to Afghanistan, looking for people who knew his son. But it turned out the best clues were in letters David Hicks wrote home. One letter described a quick descent into militant Islam in Afghanistan. When that letter was written, Hicks was fighting on the side of the Taliban government in its civil war against the Northern Alliance. Hicks was captured on the battlefield, and after two years, he remains imprisoned at Guantanamo without charge. His parents say their son was being detained as an illegal combatant -- but they didn’t know why. ---------------------------------------- Terry and Bev Hicks haven’t been able to find out why he’s being held -- but Tom told 60 Minutes II what happened. "He right away cooperated with us and gave us a really good insight onto the path that one would take to get into the al Qaeda terrorist training camps," says Tom, who adds that Hicks explained he was recruited from the battlefield to be trained in several of al Qaeda’s specialty camps. "There were several camps that had very detailed specialties. They were mountain warfare camps. There were sniper camps," says Tom. "There was bomb making schools, how to run a terrorist cell. There was all manner of terrorist training." According to Tom, Hicks was moving up through the al Qaeda camps, but then came a turning point. Hicks was asked to take the ultimate step in al Qaeda, and apparently, he wouldn’t do it. "He only backed it off at a point where he was asked to be a suicide bomber. Where he was presented with training that would involve with running a terrorist cell, and sort of being prepared to strap on a bomb, or to drive a car bomb, or to crash a plane, something along those lines," says Tom. "And he resisted. And so it caused a big problem between him and the other al Qaeda guys." Did Hicks pose a threat or ever engage in attacks against U.S. forces? "As far as we knew, he never engaged in conventional combat against the United States," says Tom. Still, President Bush has selected Hicks to be among the first at Guantanamo to stand trial. He's expected to be charged soon, and even though he's been interrogated for more than two years, he only got to a see a lawyer recently. He’s defended by civilian attorney Josh Dratel and Marine Corps Maj. Michael Mori, assigned by the Pentagon. Dratel say Hicks’ statements may be unreliable because they were coerced: "If you thought that you might be in that situation forever, without recourse, without contact with the outside world, and you thought that by cooperating and by speaking to your interrogators and telling them whatever they wanted to hear, you could get better conditions, it’s a very powerful motivation to say anything." "We lead them to believe that we are in control of a lot more than we are," says Tom. "And in some regard to the long-term goal, we are. ... Any detainee who provides information would have it checked. And it's put through an analysis process, first of all for logic and then time. We do the best that we can to make sure they're telling us the truth." There’s no way to verify what Tom is telling us, since most of the Guantanamo operation is still secret. But Dratel says that even if Hicks fought in the Afghan civil war, it doesn't mean he's an enemy of the United States. "I don't even think the U.S. government is prosecuting every member of the Taliban or stating that every member of the Taliban is al Qaeda or is guilty of a war crime," says Dratel. "Not even all the Nazi Party were prosecuted at Nuremberg. It's only those who committed war crimes." But is he a threat? "David Hicks is a wildcard. It's difficult to say whether he would be an immediate threat," says Tom. "He'd led us to believe that if released, he would simply go back to his Australian home and find work on a farm someplace. My personal opinion, and my opinion alone, is that David Hicks would be a continuing threat." ---------------------------------------- Hicks' parents, however, think their son should be excused for being little more than an Australian wanderer on the wrong side of history. "We suffered with American people the same. No one wants a dreadful thing like that to happen," says Bev Hicks. "We watched that on our TVs. And that's what’s dreadful. And I in my own heart, don't believe -- David had nothing to do with that. David had nothing to do with that." Hicks was apparently among the most cooperative at Guantanamo. Tom says Hicks realized he was in a lot of trouble, but the same was not true for other prisoners. "There were often detainees who just would not cooperate. They wouldn’t even answer what their name was or where they were from," says Tom. Were these prisoners tortured? "Any and all allegation of torture at Guantanamo Bay is absolute absurdity," says Tom. "The temptations are certainly there, but the discipline of a professional, trained interrogator in the United States military is that you have to show restraint." Of all the prisoners who have been locked up in Guantanamo, only six have been selected for trial so far, and 134 have been released. Tom says that of the 600 who remain, most are held just to keep them off the battlefield, while a few are being kept as a kind of al Qaeda database to be mined indefinitely by the interrogators. "It wouldn’t be prudent to let any of them go if we thought they had any information of value," says Tom. Next week, the Supreme Court will hear arguments challenging the indefinite imprisonment of David Hicks and others at Guantanamo. A documentary on Hicks, "The President Versus David Hicks," will be shown later this year on the Sundance Channel. * * * BBC: April 15, 2004 ARMY CLEARS GUANTANAMO CHAPLAIN http://news.bbc.co.uk/2/hi/americas/3627657.stm The US army has quashed convictions against a Muslim chaplain initially accused of spying at the US detention camp in Guantanamo Bay in Cuba. It means Captain James Yee - who spent 76 days in custody when the spying allegations were first made - now has a clean military record. Criminal charges against Captain Yee were dropped last month but he was found guilty of lesser offences. He was said to have committed adultery and stored porn on his office computer. For this he received a written reprimand. He appealed and General James Hill, commander of US Southern Command, has now dismissed the convictions and the reprimand. But General Hill said it had been necessary to keep Captain Yee in custody. "While I believe that Chaplain Yee's misconduct was wrong, I do not believe, given the extreme notoriety of his case in the news media, that further stigmatising Chaplain Yee would serve a just and fair purpose," he said. Security concerns Captain Yee's lawyer described the case against his client as a "hoax". "It wouldn't have killed them to admit a mistake," Eugene Fidell said. "Chaplain Yee spent 76 days in pre-trial confinement for no good reason." Captain Yee might try to sue the government, he added. Captain Yee was arrested last September as he arrived at a Florida naval base. In October, he was charged with two counts of failing to obey orders - specifically, for taking classified material to his home. A month later, he faced fresh charges, including adultery - a crime under US military justice - and storing pornography on a government computer. A Chinese-American, Capt Yee converted to Islam while serving in Saudi Arabia following the 1991 Gulf war. His arrest led to concerns about security at the military prison, where more than 600 suspected Taleban and al-Qaeda fighters have been held for over two years. * * * USA TODAY: April 14, 2004 10:56 PM GITMO CHAPLAIN'S REPRIMAND RESCINDED By Laura Parker, USA TODAY http://www.usatoday.com/news/nation/2004-04-14-gitmo-release-usat_x.htm A U.S. Army general on Wednesday set aside a reprimand against Capt. James Yee, a move that cleansed the record of the Muslim chaplain who was arrested last year in an espionage probe at the military's prison for terrorism suspects at Guantanamo Bay, Cuba. The decision officially ended the case, which began in September when Yee, who ministered to suspected al-Qaeda and Taliban operatives held at the U.S. Navy Base at Guantanamo, was arrested in Florida during a one-week leave. He was held in the Navy prison in Charleston, S.C., for 76 days. At the time, officials said he could face charges of espionage, aiding the enemy and spying. But the six criminal charges filed against him later were much less serious. They included mishandling classified information, storing pornography on his computer and adultery. Retired military legal officers accused the Army of overreaching. In March, after prosecutors declined to detail the classified materials that Yee allegedly had mishandled, the criminal charges were dropped. Yee, 35, received a non-criminal reprimand for the adultery and pornography charges. His attorney, Eugene Fidell, appealed. Army Gen. James Hill, who as head of the U.S. Southern Command oversees the Guantanamo Bay base, granted the appeal Wednesday and had the reprimand removed from Yee's military record. Hill characterized Yee's conduct as wrong, but said in a statement that "further stigmatizing Chaplain Yee by denying his appeal would not serve a just and fair purpose." Hill said Yee's confinement was justified, "given the circumstances at the time." Kevin Barry, a retired Coast Guard captain and former military judge, said it was unusual for such an appeal to be granted. He said the reprimand "had the appearance of being a save-face action for the Army. Some people viewed it as vindictive." Yee, now assigned to his home base in Washington state, was unavailable for comment. Fidell said that Yee "is happy to have his record clear. Clearly what was in order here was an apology." * * * Reuters April 14, 2004 MILITARY DROPS GUANTANAMO CHAPLAIN CONVICTIONS By Jane Sutton http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=4829532 MIAMI (Reuters) - The U.S. military on Wednesday dismissed the convictions against a Muslim Army chaplain who was initially suspected of espionage at the Guantanamo prison camp but was found guilty only on lesser, sex-related charges. The appellate decision by Army Gen. James Hill, the Southern Command chief who oversees U.S. military operations at Guantanamo, wipes the slate clean for Capt. James Yee, who had been assigned to minister to prisoners at the base in Cuba. "This means there will be no official mention of it in his military record," Hill said. His decision put an end to what one of Yee's lawyers called a "hoax" case against the chaplain. Yee, 36, was found guilty in March of noncriminal charges of committing adultery and storing pornography on a government computer. He ministered for 10 months to foreign terrorism suspects held at the U.S. naval base in Guantanamo Bay, Cuba. Yee was arrested on suspicion of espionage in September and faced six criminal charges that included mishandling classified information at Guantanamo. Court documents accused him of spying, mutiny, sedition and aiding the enemy and he was held in solitary confinement in a military brig for 76 days. The military dropped all the criminal charges in March, citing national security concerns that would arise from the release of evidence against him. WRITTEN REPRIMAND Army Maj. Gen. Geoffrey Miller, who at the time commanded the task force running the Guantanamo prison, then found Yee guilty of administrative charges of committing adultery and storing pornography on a government computer, and issued a written reprimand. Yee appealed the decision. His civilian lawyer, Eugene Fidell, said the proceedings were biased and "a hoax by any standard." Fidell said he had not had time to prepare a defense because the Army did not give him the evidence in the case until 11 minutes before Yee's hearing began. As the Southcom commander, Hill had jurisdiction to hear the appeal. Hill said his decision was based in part on the massive notoriety and media attention the case had received and in part on the fact that Yee had already served 76 days of confinement in a military brig. "I view this as a matter of mercy and equity, not necessarily a matter of law," he said. Hill said Miller acted correctly to bring the charges based on what was known at the time and said Yee's religious beliefs and Chinese ancestry had nothing to do with the original charges or the decision to throw out the conviction. "It had nothing to do with his race or his religion," Hill said. Yee was one of four men working at Guantanamo to be charged in connection with a suspected espionage ring. Charges against the other three are still pending. Yee returned last week to his permanent assignment at Fort Lewis in Washington state, and was on leave, Fidell said. * * * LA Times: April 11, 2004 NOT ON OUR BEST BEHAVIOR * Former detainees from the war on terrorism are speaking out, claiming abuse by the U.S. By Ben Ehrenreich http://www.latimes.com/news/printedition/opinion/ la-op-ehrenreich11apr11,1,5500803.story A phrase uttered by an American colonel at a press conference last summer at Bagram air base in Afghanistan has been stuck in my head for months: He spoke of "guests under control," as in "I will not handle any questions pertaining to guests under control." It is an expansive notion of hospitality that can include such a concept -- the colonel's Orwellian gem refers to the approximately 1,000 individuals who have been detained by coalition forces in Afghanistan since 2002, and presumably extends to the approximately 10,000 currently detained in Iraq, as well as the nearly 600 still being held at the U.S. naval base at Guantanamo Bay, Cuba. The colonel coolly termed the last group "long-term guests of the coalition." The Bush administration has scrupulously prevented these detainees from speaking to anyone but representatives of the International Red Cross, whose continued access to prisoners depends on their discretion. But in recent months, more and more of the military's "guests" have been released by their erstwhile hosts and have related disturbing accounts of their treatment in detention -- including allegations of torture -- to journalists and to human rights groups. While widely reported in the international press, only scattered accounts have appeared in the American media. Take the "Tipton Three," the British papers' nickname for Shafiq Rasul, Rhuhel Ahmed and Asif Iqbal, all from the English Midlands town of Tipton. The three men, released last month after spending more than two years in Guantanamo's cages, told their story to the Observer newspaper. They described being repeatedly beaten and interrogated with guns to their heads at a detention center in Kandahar before being sent in shackles to Guantanamo. There, the three say they each endured more than 200 interrogations, inhumane conditions, many more beatings and three months in solitary confinement after they were accused of being present at a videotaped meeting between Sept. 11 hijacker Mohamed Atta and Osama bin Laden. Though they were eventually vindicated when British intelligence officers confirmed they had been in England when the meeting took place, all three, ultimately, falsely confessed that they had been present. "I'd got to the point where I just couldn't take any more," Rasul told the Observer. The three alleged that interrogations were so relentless that many detainees began manufacturing information about other prisoners to curry favor with their captors and earn "comfort items" such as toothbrushes and censored bestsellers. "They kept taking us and taking us, showing us photos saying: 'This guy says you've done this, this guy says you've done that,' " said Rasul. Such methods make it unlikely that anything like truth, much less justice, will result from the planned closed-door military tribunals. Jamal Harith, a fourth Guantanamo inmate released to Britain with the Tipton Three and interviewed by the Daily Mirror, told similar stories of beatings, mistreatment and deprivation, as have some former Guantanamo detainees returned to Afghanistan, one of whom added accounts of torture by electric shock to the growing heap of ugliness. While it's clear enough that the Tipton Three -- and more than 100 others summarily released from Guantanamo so far -- spent more than two years of their lives deprived of the most basic rights only to be vindicated in the end, none of the specifics of the former prisoners' stories can be properly corroborated thanks to the veil of secrecy (a canvas hood might be a more appropriate metaphor) that the U.S. government has dropped over Guantanamo Bay. But reports coming out of Iraq and Afghanistan are equally disturbing, and suggest a pattern of indifference to international law consistent with the Bush administration's behavior in other arenas. Last month, Human Rights Watch released a report, slyly titled "Enduring Freedom," on the treatment of Afghans in coalition custody at Bagram air base, the U.S. headquarters in Afghanistan, and other detention centers in the country. As at Guantanamo, only the testimony of released prisoners was available. The media's "Ground Rules Agreement" that the military requires journalists to sign in exchange for press privileges at Bagram categorically states: "No interviews with detainees will be granted." And, as at Guantanamo, detainees are considered "unlawful combatants," not prisoners of war subject to the protections of the Geneva Convention. According to the report, former prisoners described "being held in detention for weeks, continuously shackled, intentionally kept awake for extended periods of time, and forced to kneel or stand in painful positions for extended periods. Some say they were kicked or beaten when arrested, or later as part of efforts to keep them awake." Roger King, a Bagram spokesman quoted by Human Rights Watch, admitted that the military does employ the milder of the "stress and duress" interrogation tactics ("We do force people to stand for an extended period of time". Disruption of sleep has been reported as an effective way of reducing people's inhibition about talking."), although the State Department explicitly condemns all these methods -- from sleep deprivation and "forced prolonged standing" to "prolonged periods of solitary confinement, incommunicado detention, beatings and shackling" -- as torture when they are practiced by governments other than our own. The Human Rights Watch report also details the case of two Afghans, aged 22 and 30, who died while in detention at Bagram in December 2002, and whose deaths were ruled homicides by U.S. military pathologists (one caused by "blunt force injuries to the lower extremities complicating coronary artery disease," the other to a "pulmonary embolism due to a blunt force injury to the legs"), and a third who died in a detention facility near Asadabad in 2003. Stories from Iraq, where coalition forces detain roughly 10,000 Iraqis, are depressingly similar. A July Amnesty International memorandum based on interviews with former prisoners described abuses identical to those alleged by Human Rights Watch in Afghanistan, as well as allegations of torture by electric shock. Amnesty has complained to coalition authorities of two deaths in custody, one from a heart attack during interrogation, the other by asphyxiation, apparently from being beaten while hooded. Other human rights groups on the ground in Iraq have reported all too many similar accounts. Almost as disturbing as these allegations themselves is the nearly complete lack of outcry, or even attention they have aroused here in the U.S. We do not know what is being done in our name. Worse, we do not ask. [ Ben Ehrenreich is a Los Angeles journalist who reported from Afghanistan last year. ] * * * April 13, 2004 'THIS IS INQUIRY MATERIAL': KHAWAJA FAMILY http://www.cbc.ca/stories/2004/04/13/khawaja_20040413 OTTAWA (CBC) - Qasim Khawaja said the Canadian government was wrong to use a foreign government to detain his father, Mahboob Khawaja, a Canadian citizen. Mahboob was taken into custody two weeks ago in Saudi Arabia on the same day his 24-year-old son, Mohammad Momin Khawaja, was arrested in Canada under new anti- terrorism laws. Several other people were detained in Britain at the same time. Mohammad is still in custody. IN DEPTH: Khawaja http://www.cbc.ca/news/background/cdnsecurity/khawaja_mohammad.html Speaking to reporters in front of his house on Tuesday, Qasim Khawaja said what the Canadian government did to his 62-year-old father is the same as what the U.S. government did to Maher Arar. IN DEPTH: Timeline: Maher Arar http://www.cbc.ca/news/background/arar/ Arar, a Syrian-born Canadian, was detained by U.S. authorities during a stop over in New York on his way back to Canada from a vacation in Tunisia. The U.S. government suspected him of terrorist activity and sent him to Syria where he was held in prison for more than a year. Qasim has said in the past that the RCMP and Canadian Security Intelligence Service asked the Saudi government to hold his father. The RCMP has denied this. "I believe this is inquiry material," he said. Qasim said his father is shocked that the RCMP and CSIS think the Khawaja family has any connections to terrorism. He said he has seen the evidence the authorities are using to link the Khawajas to terrorism. "I can't comment on it, but it's not much," he said. Qasim said his father was asked all the same questions that the rest of his family was asked the day Mohammad was taken into custody. Mahboob has been held for two weeks in a house. He told his family over the phone that he was not mistreated. He has returned to work in Saudi Arabia as a teacher, but he has not been given his computer, which authorities confiscated when they picked him up. Qasim said his father will be returning to Canada soon. [ Written by CBC News Online staff ] * * * BBC: April 13, 2004 TAJIKS RELEASED FROM GUANTANAMO http://news.bbc.co.uk/2/hi/asia-pacific/3622871.stm At least 150 detainees have been sent home from Guantanamo Bay Four Tajik citizens have been released from the US base in Guantanamo Bay in Cuba, the American ambassador to Tajikistan has announced. The men, all of them from the northern part of Tajikistan, were no longer dangerous, Richard Hoagland said. The United States had no wish to interfere in their further personal life, he added. It is thought that eight more Tajiks remain at Guantanamo Bay and will also be released soon. The men have returned to Tajikistan, but no further details were available. "We are not able to comment on the number or background of the released detainees," the US embassy in Dushanbe said in a statement. "It is the decision of the Tajik government whether to release this information," it added. Civil war Their release brings to about 150 the number of men to have left Guantanamo, for release or for detention by their own governments. All the Tajik citizens in Guantanamo Bay were detained in Afghanistan after the fall of the Taleban in late 2001. Most of the detainees left for Afghanistan during the short but bloody civil war in Tajikistan in the 1990s. Many Tajiks became fighters almost by chance as they could not return to their own country. Some 591 prisoners are still being held at the US naval base. Human rights group have challenged the legal basis for their detention without charge. * * * BBC: April 12, 2004 RIGHTS PLEA OVER GUANTANAMO BAY http://news.bbc.co.uk/2/hi/middle_east/3619055.stm A human rights conference in Yemen on Guantanamo Bay detainees has ended with a plea to the US to either release inmates or put them on trial. A statement issued at the end of the two-day conference said the inmates' situation at the US base in Cuba was "an unprecedented human rights scandal". The conference, attended by lawyers and families of detainees, was organised by Amnesty International. About 600 detainees from more than 40 countries are being held at the base. Most were captured during the US-led war in Afghanistan in late 2001, which followed the 11 September attacks in the US. Washington says the detainees at Guantanamo Bay are "enemy combatants" who have no right to lawyers and may be held indefinitely without charge. Many prisoners at the base have been held for two years without access to relatives or legal counsel. Pressure The "Sanaa appeal" released at the end of the conference urged the US to halt the deportation of inmates to countries known to have poor human rights records and give them access to rights groups. It also urged Gulf countries to put more pressure on the US to grant their citizens more rights. Organisers said the conference was aimed at bringing together lawyers and families of detainees. "This is the first time lawyers, families and activists [can] get together to try to network, to establish contacts with one another," Middle East Press officer for Amnesty International Nicole Choueiry told the Associated Press news agency. "The ultimate goal is to allow families who have no access to lawyers to get access to them." Khaled al-Anzi, who represents a Yemeni human rights group, told AP news agency that more than 60 families met separately with Amnesty and lawyers to sign documents retaining defence counsel for their relatives in the camp. More than 100 of those held in Guantanamo Bay are thought to be from Yemen. Since the 11 September attacks Yemen has cracked down on Islamic militants members in an attempt to shed its image as a haven for al-Qaeda supporters. US special forces have been allowed to operate in the country. * * * Reuters: April 10, 2004 FRANCE, U.S. STUDY RETURN OF CUBA-HELD FRENCH http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=4796369 PARIS (Reuters) - France and the United States are examining the possible repatriation of seven French nationals detained in Guantanamo Bay, Paris prosecutor Yves Bot told French daily Le Monde in an interview on Saturday. He made the comments following a visit to the United States, but it was unclear from the article whom Bot had met there. "The conditions for a satisfactory solution are being studied," he told Le Monde. The French prisoners are among some 660 suspected members of al Qaeda and Afghanistan's former ruling Taliban militia being held at the camp in Cuba. They were captured during the U.S.-led war in Afghanistan, which was triggered by the September 11, 2001, attacks on New York and Washington. France last February called for the return of the French detainees, saying that if they were to be tried, that that should happen by courts of law preferably in France. Lawyers for some of the French suspects have accused the French government of not putting enough pressure on Washington to have them repatriated. * * * B.U. Bridge: April 9, 2004 Guantanamo on trial EXPERTS WEIGH IN ON MEDICAL, LEGAL RIGHTS OF DETAINEES AT SPH CONFERENCE By Tim Stoddard http://www.bu.edu/bridge/archive/2004/04-09/detainees.html The detention by the United States of more than 600 enemy combatants and suspected terrorists at the Guantanamo Bay naval base in Cuba has drawn sharp criticism from human rights groups in the past two years. With the Supreme Court scheduled this month to hear arguments on whether the detainees may ask American courts to review their cases, a panel of physicians and lawyers convened last week on the Medical Campus to examine the purported health and human rights violations at Guantanamo. The conference, hosted by the School of Public Health's department of health law, bioethics, and human rights, focused on the impact of interrogation and confinement on the mental health of Guantanamo prisoners and on the illegality of holding detainees incommunicado indefinitely. It was inspired, in part, by Heidi Kummer (SPH'04), a German anesthesiologist and master's candidate in health law, whose final paper in an SPH course on health and human rights this past fall focused on the legal violations of holding juveniles at Guantanamo. With her help, George Annas and Michael Grodin, both SPH professors of health law, bioethics, and human rights, organized the public conference to address the broader topics of health and human rights at the naval base. Guest speakers included Daryl Matthews, a psychiatry professor and director of the forensic psychiatry program at the University of Hawaii, Manoa, Allen Keller, director of New York University's Bellvue program for survivors of torture, and Leonard Rubenstein, executive director of Physicians for Human Rights. "This conference is a powerful example of how the School of Public Health is involved in not just scholarly work and thinking about these issues and articulating them," Grodin says, "but actually moving from scholarship to advocacy to action, which is good for our students and faculty, and also for society." Rights to mental health Matthews, who taught at SPH in the late 1970s, was asked by the Army in 2003 to review and report on the mental health care provided to detainees, and is one of the few civilians to have visited the Guantanamo camps. "There's no question that there are people down there with psychiatric problems," he says. "Some of them had these problems back home, at the various places where they came from. But these folks were also subjected to a lot of bad and strange treatment on their way to Guantanamo." Matthews was not at liberty to describe details of the mental health care provided to the prisoners, but noted that many are routinely given antidepressants such as Prozac. "The detainees are, by and large, totally unfamiliar with Western mental health care," he says. "Just being medicated is often in and of itself a stressful experience for them. These are not cultures where the idea of taking a pill to solve your mental health problems has a lot of currency. It's not what they're accustomed to, and neither is talk psychotherapy." "In addition to these routine stresses of confinement," he adds, "the detainees had a number of other stresses that were quite powerful. One of them is the tremendous uncertainty they face about their future. The detainees do not know whether or not they will be charged. They don't know if they're going to be given legal counsel, if they're going to be charged with capital offenses, or what the nature of their ongoing confinement will be. It's quite possible some of these people could be acquitted but kept at Guantanamo, and the detainees are certainly aware of that." A question of sovereignty The situation of the Guantanamo detainees could change dramatically by this summer, Annas says, if the Supreme Court decides they have the right to representation in the American justice system. "The question in front of the Supreme Court," he says, "is whether or not a detainee has access to the U.S. courts to raise due process questions, such as access to lawyers, charges against them, public trial. That question turns on whether or not they are in a U.S. territory where the U.S. is sovereign." The United States has leased the naval base at Guantanamo Bay from the Cuban government since 1903, originally paying $2,000 a year in gold (since 1934, the lease has been $4,085 a year). The United States says the conditions of the lease give it control over the base but do not constitute sovereignty, which means that the government does not have to follow the legal standards imposed on American territories and states. "The Bush administration told the Ninth Circuit Court in California that not only did they believe that U.S. law does not apply in Guantanamo, but that even if the claims were that the U.S. was engaged in torture or was summarily executing the detainees, the U.S. courts couldn't do anything about it," Annas says. In his remarks at the conference, Grodin indicted the U.S. military on a number of counts. "From what I've read from the detainees who have spoken, and from reports from people who have been down to Guantanamo," he says, "there have been violations of international humanitarian laws, international human rights laws, and the uniform code of military justice, and violations of medical ethics." Citing one of the fundamental guarantees of the Geneva Convention, Grodin explained how the United States has violated the terms of treatment for armed combatants. "The prisoners have not been told what they've been charged with. They have not been given access to attorneys or to any due process or a forum in which to defend themselves." Regardless of the outcome of the Supreme Court case, Grodin says, it's time for more transparency at Guantanamo. "At the minimum," he says, "we need to have an independent group go down there and really see what is going on. I don't think there need to be new laws -- we need to enforce the laws that we have. If the U.S. won't do it, then why should anybody else do it? If we treat our prisoners this way, what message does that give the rest of the world in terms of how they treat our soldiers if they're held?" Annas supports a more radical intervention in Cuba: shutting down the naval base once and for all. "It's just too much of a temptation for the United States to use Guantanamo in all kinds of ways that we would never think of doing here in the United States. It's not just the Bush administration -- the Clinton administration did it too. I think it should be closed. We can't have a place that we think is beyond U.S. law, where we can do what we want to do. It's just too tempting for us to use Guantanamo in lawless ways. It darkens America's soul." The conference was sponsored by SPH, Global Lawyers and Physicians, Amnesty International, the François-Xavier Bagnoud Center for Health and Human Rights, and Physicians for Human Rights. * * * Seattle Post-Intelligencer: April 8, 2004 MILITARY LAWYER SUES GOVERNMENT FOR DETAINEE'S RELEASE By Gene Johnson, Associated Press Writer http://seattlepi.nwsource.com/local/aplocal_story.asp?category=6420 &slug=WA%20Guantanamo%20Detainees%20Lawsuit SEATTLE (AP) -- A military lawyer representing a former driver for Osama bin Laden has sued the Bush administration, alleging that its plan to try terrorism suspects held in Cuba by military tribunal is a violation of U.S. and international law. Navy Lt. Commander Charles Swift filed the lawsuit in U.S. District Court in Seattle this week on behalf of Salim Ahmad Hamdan, one of six detainees the administration has said it plans to try by tribunal. Swift claims the government has violated his client's rights by holding him without charges and that the tribunal system is an illegal expansion of executive branch powers. "Mr. Hamdan's demand that charges be brought, that he be informed of such charges, and that trial on such charges occur were ignored as if Mr. Hamdan had no rights at all," Swift wrote. "The logical result ... is he could serve a potential life sentence without ever being charged with a crime and without being afforded a chance to prove his innocence." Defense Department spokesman Maj. Michael Shavers said Thursday the department had no comment. Administration officials have said they have wide legal latitude to interrogate the detainees for extended periods since national security is at risk. The military has freed more than 130 of the prisoners of the terrorism suspects being kept at Guantanamo Bay Naval Base in Cuba. A dozen others have been transferred to the custody of their home countries. Slightly fewer than 600 remain there. Human rights groups have roundly criticized the detentions, but this case is the first directly challenging the tribunals. Another challenge, arguing that the government doesn't have jurisdiction over the prisoners because they are not being kept on sovereign U.S. land, is to go before the U.S. Supreme Court later this month. Swift's lawsuit was filed with Judge Robert Lasnik on Tuesday, but for unclear reasons it was not publicly available at the court clerk's office on Tuesday or Wednesday. It names as defendants President Bush, Defense Secretary Donald Rumsfeld and Brig. Gen. Jay Hood in Guantanamo Bay, among others, and it seeks to have the court order Hamdan's release and bar the government from proceeding with the tribunals. Swift, who is based in Arlington, Va., but says his permanent residence is in Washington state, was appointed by the government to represent Hamdan, a 34- year-old Yemeni. He argues that Hamdan was simply a pilgrim who took a job at bin Laden's farm on his way to Tajikistan in 1996 or 1997, that he had no knowledge of bin Laden's activities, that he never took up arms against the United States, and that the government has no basis for declaring him an "enemy combatant." Hamdan was captured in Afghanistan in late 2001 by tribesmen interested in collecting American bounties on suspected terrorists, Swift wrote. The military transferred him to the detention facility at Guantanamo Bay, Cuba, and since early December he has been kept in isolation in preparation for his trial. The government has yet to schedule his trial or say what charges he might face. The lawsuit argues that the Constitution grants Congress, not the president, the power "to define and punish ... offenses against the law of nations" and "to constitute tribunals inferior to the Supreme Court." Beyond that, it claims that although President Bush formed the tribunal based upon provisions in the Uniform Code of Military Justice, he has declined to provide the detainees with the rights afforded defendants under that code, including the right to a speedy trial. The detentions also violate the 1949 Geneva Convention, which states that "in no circumstances" are prisoners of war to be detained for more than three months before being tried, Swift wrote. "Denial of a speedy trial in Mr. Hamdan's case and his consequential prolonged detention in solitary confinement risks long-term psychological injury to Mr. Hamdan, and threatens to impair materially his ability to assist in the preparation of his own defense should charges ever be brought," the lawsuit states. * * * The Independent (UK) / CounterPunch: April 6, 2004 REAPING THE WHIRLWIND Iraq on the Brink of Anarchy By Robert Fisk, The Independent http://www.counterpunch.org/fisk04062004.html FALLUJAH, IRAQ -- Not content with surrounding the largest Sunni city west of Baghdad with tanks, armoured personnel carriers and heavy machine guns, US forces used Apache helicopters to attack the Shia Muslim slums of Shoula yesterday, sent dozens of their main battle tanks into the hovels of Sadr City and then slapped an arrest warrant on the Shia cleric Muqtada Sadr--who must dearly have wanted the United States to do just that. Gun battles in Sadr City overnight had cost the lives of up to 40 Iraqis and at least eight Americans, but in the sewage-damp streets yesterday, they were handing out letters, allegedly written by the Sunni townspeople of Fallujah, newly surrounded by 1,200 marines. "We support you, our brothers, in your struggle," the letters said. If they are authentic, it should be enough to make the US proconsul, Paul Bremer, wonder if he can ever extricate Washington from Iraq. The British took three years to turn both the Sunnis and the Shias into their enemies in 1920. The Americans are achieving it in just under a year. Anarchy has been a condition of our occupation from the very first days when we let the looters and arsonists destroy Iraq's infrastructure and history. But that lawlessness is now coming back to haunt us. Anarchy is what we are now being plunged into in Iraq, among a people with whom we share no common language, no common religion and no common culture. Officially, Mr Bremer and his president are standing tall, claiming they will not "tolerate" violence and those who oppose democracy, but occupation officials--in anticipation of a far more violent insurrection--have been privately discussing the legalities of martial law. And although Mr Bremer and President George Bush are publicly insisting that the notional "handover" of Iraq's "sovereignty" will still take place on 30 June, legal experts attached to the American-appointed Iraqi Governing Council have also been considering a delay of further months. Many Iraqis are now asking if the Americans want disaster in Iraq. Surely not, but yesterday's violence told its own story of blundering military operations and political provocations that will undoubtedly add to the support for the charmless and provocative Shia cleric whom Mr Bremer now wants to lock up--allegedly for plotting the murder of a pro-Western Shia cleric, Abdul-Majid el-Khoi. Sadr was surrounded by his militiamen yesterday, in a mosque in Kufa from where he issues regular denunciations of the occupation. Dan Senor, a spokesman for the occupying power, would not tell anyone exactly what the evidence against Sadr was--even though it has supposedly existed since an Iraqi judge issued the warrant some months ago. The US military response to the atrocities committed against four American mercenaries in Fallujah last week has been to surround the entire city and to announce the cutting off of the neighbouring international highway link between Baghdad, Amman and Damascus--thus bringing to a halt almost all economic trade between Iraq and its two western neighbours. What good this will do "new" Iraq is anyone's guess. Vast concrete walls have been lowered across the road and military vehicles have been used to chase away civilians trying to bypass them. A prolonged series of Israeli-style house raids are now apparently planned for the people of Fallujah to seek out the gunmen who first attacked the four Americans. The corpses were stripped, mutilated and hanged. The helicopter attacks in Shoula--by ghastly coincidence the very same Shoula suburb in which civilians were slaughtered by an American aircraft during last year's invasion--looked like a copy of every Israeli raid on the West Bank and Gaza. Indeed, Iraqis are well aware that the US military asked for--and received--Israel's "rules of engagement" from Ariel Sharon's government. America's losses over the past 48 hours--at least 12 soldiers killed and many wounded--come nowhere near the number of Iraqi victims over the same period. US forces in Sadr City believe they were fighting up to 500 militia men from Sadr's black-uniformed Army of Mehdi early yesterday. Even so, using Apache helicopters in a heavily populated district to hunt for gunmen raises new questions about the rules to which occupation troops are supposed to adhere. The British fared less badly in Basra, Iraq's second city, where they avoided violence with militiamen who had taken over the town hall and wounded no one in a brief gun battle. Spanish troops were again involved in shooting with militiamen in Najaf. The grim truth, however, is that the occupying powers are now facing insurrection of various strengths in almost every big city in Iraq. Yet they are still not confronting that truth. For the past nine nights, for example, the main US base close to Baghdad airport--and the area around the terminals--has come under mortar fire. But the occupying powers have kept this secret. "Things are getting very bad and they're going to get worse," a special forces officer said close to the airport yesterday. "But no one is saying that--either because they don't know or because they don't want you to know." As for Sadr, he will, no doubt, try to surround himself with squads of gunmen and supporters in the hope that the Americans will not dare to shoot their way in to him. Or he will go underground and we'll have another "enemy of democracy" to bestialise in the approach to the American elections. Or--much more serious perhaps--his capture may unleash far more violence from his supporters. And all this because Mr Bremer decided to ban Sadr's trashy 10,000-circulation weekly newspaper for "inciting violence." [ Robert Fisk is a reporter for The Independent and author of Pity the Nation. He is also a contributor to CounterPunch's hot new book, The Politics of Anti- Semitism. ] * * * Seattle Post-Intelligencer: April 6, 2004 YEE REUNITED WITH FAMILY Army chaplain thanks neighbor for battling on his behalf By Mike Barber, Seattle Post-Intelligencer Reporter http://seattlepi.nwsource.com/local/167868_yee06.html SEATAC -- Next to his wife and 4-year-old daughter, the most cheering sight yesterday for Army Capt. James Yee, a Muslim chaplain now no longer facing accusations of espionage at Guantanamo Bay, was the family of Shaheed Nuriddin of Olympia. Despite Nuriddin's own battle with cancer, "this family made justice a priority," Yee said, gesturing broadly to Nuriddin, 51, his wife, Fatima, and their daughter, Hanan, neighbors who stood by his family while he fought to vindicate himself. Yee acknowledged them after he was greeted at Sea-Tac Airport by family, friends and supporters with the Seattle chapter of the Council on American-Islamic Relations. Yee's arrival, however, reminded them that his case is not completely over. Yee arrived later than expected after missing a plane because he remains on an airport "watch" list, even though the Army dropped all criminal charges against him last month, Yee's lawyer, Eugene Fidell of Washington, D.C., said. "Both he and his father have experienced this problem since the character assassination against him began last year," Fidell said. Yee, a West Point graduate, will soon resume the chaplaincy of a support battalion at Fort Lewis, his permanent duty station. He was deployed from there in October 2002 to help at Guantanamo, where al-Qaida and Taliban prisoners are being held. Yee declined to answer questions yesterday, noting that a reprimand for adultery and storing pornography on his military computer still hangs over his head and is being appealed. He received the reprimand at a hearing called shortly after the military dropped the criminal case. Standing with his wife, Huda Suboh, and their daughter, Sarah, 4, in the airport's main concourse, Yee read from penciled notes jotted on 3-by-5 cards. Memories of Mount Rainier on sunny days, he said, reminded him that "truth will always clear away falsehood." "I thank my friends at Fort Lewis and understand why they cannot be here," Yee said. Yee also said he was worried about long-term effects of his ordeal on his family, though he noted that he was buoyed when Sarah told him that seeing his picture on television meant "everybody loves my daddy." And Yee compared his wife's stress in keeping a family together while seeing her husband accused "to that of Mary, the mother of Jesus, and Aisha, the wife of the prophet Mohammed, who was vindicated of slanders and lies" after being accused of adultery. Yee, 36, who left the Army for four years to study Arabic and Islam in Syria, was arrested Sept. 10 on suspicion of espionage after leaving Guantanamo. He had been assigned there to counsel nearly 660 al-Qaida and Taliban prisoners. Yee spent 76 days in custody, but espionage charges never were filed. Instead, Yee was charged with failing to obey orders by taking classified material to his home and wrongfully transporting it without proper containers. His prisoner status was reduced to low security. In November, the government added more charges: making a false statement, storing pornography on his government computer and adultery with a female military officer at an Orlando, Fla., motel. But the government's case began to unravel. The hearing for Yee was postponed six times, the government's legal staff accidentally mishandled classified materials in the prosecution and prosecutors acknowledged they were uncertain whether Yee had classified materials when he left Guantanamo. Yee's wife was waiting at Sea-Tac last September to pick up her husband. When he never showed, Suboh, a Palestinian who lived in Syria and whose English is limited, returned home to Olympia. Finding a federal search warrant, she asked Nuriddin, their next-door neighbor, for help. He is a Stanford University graduate who has a law degree from Washington University in St. Louis. Nuriddin, 51, began helping Suboh make sense of the FBI search warrant. While FBI agents were generally respectful, Nuriddin said two Army investigators grilled Suboh alone in her house, without an interpreter, showing her a photo montage of terrorists in an apparent attempt to link them to her husband. A spokesman for the Army's Southern Command could not be reached for comment last night. Through all this, Nuriddin said, Yee has never said anything negative about the Army. "He has always remained straight military, almost too military for me at times, always committed to his country and to Islam that sees the activity of al-Qaida or the World Trade Center (attacks) as appalling." Nuriddin, who spoke with Yee several times and who was himself questioned by federal agents, said Yee at first "thought it was all a misunderstanding that could be cleared up sooner." As months went by, Yee "felt this was a test of his faith, of his mettle and that he was not going to succumb," Nuriddin said. [ P-I reporter Mike Barber can be reached at 206-448-8018 or mikebarber@seattlepi.com ] * * * The Olympian (WA): April 6, 2004 CAPT. YEE BACK HOME AFTER SEVEN TUMULTUOUS MONTHS Muslim chaplain returns to jubilant well-wishers Christian Hill, The Olympian http://www.theolympian.com/home/news/20040406/topstories/20368.shtml SEA-TAC -- As a phalanx of video cameras and reporters recorded a Muslim leader's call Monday for full vindication for Capt. James Yee, Yee quietly doted on his daughter. Squatting down, the Muslim Army chaplain and his 4-year-old daughter, Sarah, were engaged in quiet conversation, both seemingly oblivious to the media frenzy that greeted Yee at Seattle-Tacoma International Airport. Yee had returned home for good after an ordeal of nearly seven months that saw a capital espionage case against him publicly dissolve into a reprimand on two minor charges. "I'm looking forward to closing this book and moving on to Chapter 2," he told reporters during a brief news conference at the airport. Yee, a 36-year-old West Point graduate, is scheduled to resume his chaplain duties at Fort Lewis as he continues to fight the Army to clear his name. He and his family live in Olympia. In a prepared statement, Yee, wearing a gray suit, said he'd been looking forward to coming home for months, and thanked his supporters for standing by him since news of his Sept. 10 arrest became public. Yee declined to answer any questions, saying his case is still under appeal. "No matter how great the opposition, truth will always stand clear of falsehood," he said. Yee presented his daughter with a bag of pink cotton candy when he arrived. To his wife, Huda Suboh, he presented a gold bracelet. "She's taken up the role of mother and father for 18 months in my absence," he said. Yee also thanked Shaheed Nurridin, Nurridin's wife and their daughter, calling them "the ultimate conquering pillar of strength." The Muslim family lives near Yee's wife and daughter and looked after them in his absence. The family also worked on efforts to get justice for Yee, while Nurridin battles cancer. For his part, Nurridin said it was enough to see his friend back home. "That's where I get my joy," he said. "It's nice he said that. I appreciate it. But this is about doing what's right." Nurridin said there are plans for a local homecoming for Yee later in the week. Yee, a Chinese-American, was arrested last September as he was flying home to Olympia to visit his wife and daughter. He initially was linked to a possible espionage ring operating at the naval detention center at Guantanamo Bay in Cuba, where he was counseling suspected al-Qaeda and Taliban fighters. He left Fort Lewis for Guantanamo in October 2002. Those accusations never panned out. He was charged with mishandling classified information. While announcing Yee's release after 76 days in pretrial confinement in late November, the Army added charges related to committing adultery, a crime under military law, and storing pornography on his government- issued computer. For many, Yee quickly became a symbol of the government's overzealous campaign against Muslims in the period since the Sept. 11, 2001, attacks. Supporters argued that the accusations against Yee were rooted in his race and religion. Last month, the government dropped all criminal charges against Yee, saying there were concerns about releasing national security information into the public arena if the case proceeded. Three days later, a military commander formally reprimanded Yee on administrative charges involving alleged adultery and pornography. Yee is appealing that decision, saying the Army didn't give his defense team enough time to prepare. Steve Lucas, a civilian spokesman for U.S. Southern Command in Miami, told The Associated Press on Monday he did not know the status of the appeal and could not immediately comment. Samia El-Moslimany, vice chairwoman of the Seattle chapter of the Council on American-Islamic Relations, called the government's treatment of Yee a "classic example of abuse of power." "He has been vindicated to a certain extent and we're happy to have him home," she said. Yee's arrival was more than three hours late Monday after he had problems clearing security and missed his original flight. Yee's family and supporters have demanded that the military formally apologize to Yee. But a military spokesman said there would be no apology because the chaplain potentially jeopardized sensitive information. His case unresolved, Yee was content Monday to leave the airport, his wife and daughter in tow, and drive home. [ The Associated Press contributed to this report. Christian Hill covers the city of Lacey and the military for The Olympian. He can be reached at 360-754-5427 or at chhill@olympia.gannett.com ] * * * Newsday: April 6, 2004 EVEN ADVERSARIES PRAISE JAMES COMEY By Curt Anderson, Associated Press Writer WASHINGTON -- It was unusual enough for a prosecutor to get a courtroom note from the Mafia hit man he was trying to send to prison. Then James Comey read it. The defendant, a member of New York's Gambino crime family, said he'd noticed that Comey the day before had been awarded the Henry L. Stimson Medal from the New York City Bar Association as outstanding assistant U.S. attorney in the city. "Dear Jim," read the note, "Congratulations on the award. I couldn't think of someone more deserving." Since that 1993 case, Comey, 43, has risen to become deputy attorney general, the No. 2 job at the Justice Department with responsibilities that include counterterrorism, corporate fraud and high-priority criminal investigations. As the note exchange in the Gambino case demonstrates, Comey impresses even his legal adversaries, said his close friend and colleague, Chicago U.S. Attorney Patrick Fitzgerald. "He has good judgment over law and good judgment over facts, and good judgment over people," said Fitzgerald, who worked with Comey in prosecuting the Gambinos. "He's got incredible grace under pressure. You think of the basketball players who want the ball when there's three seconds left on the clock. Jim steps up." Only a few months on the job, Comey was thrust temporarily into the top Justice spot after Attorney General John Ashcroft underwent surgery March 9 to remove his gallbladder after a bout of acute gallstone pancreatitis. Ashcroft returned this week, but Comey remains a key player in the nation's leading law enforcement agency. Comey came to the No. 2 job at the department after Larry Thompson resigned in August. He had been U.S. attorney for the Southern District of New York, one of the nation's most prominent prosecutorial offices and one at the front lines of terrorism, corporate malfeasance, organized crime and the drug war. Comey's office brought the charges that resulted in the March 5 convictions of Stewart and Peter Bacanovic on counts of obstruction of justice and lying to government investigators regarding Martha Stewart's sale of ImClone Systems stock. He also supervised prosecutions of the executives at WorldCom, Adelphia and other prominent white-collar cases. As an assistant U.S. attorney in Virginia, Comey handled the investigation of the 1996 bombing of the Khobar Towers housing complex near Dahran, Saudi Arabia, that killed 19 U.S. military personnel. With a long list of prominent prosecutions under his belt -- and five children to feed, clothe and educate -- there is little doubt that the University of Chicago Law School graduate could be making far more money in the private sector. But in a speech last week to the U.S. Marshals Service in Arlington, Va., Comey laid out a rationale for law enforcement work that drives him. "There are few jobs in the world where you get paid to do the right thing," Comey said. "There's right, and there's wrong, and it ain't hard to tell the difference." Unlike Ashcroft, a politically polarizing figure who won Senate confirmation by 58-42 in 2001, Comey sailed through the Senate with hardly a scratch and won confirmation on a unanimous voice vote in December. His only brush with politics was in 1995, when he worked part-time in private practice as a deputy special counsel to a Senate committee that investigated the Whitewater land deal during the Clinton administration. Democratic Sen. Charles Schumer of New York, a persistent critic of Ashcroft and the Bush administration Justice Department, called Comey "a prosecutor's prosecutor" and said it was nearly impossible to find people with bad things to say about him. "Everyone you talk to who knows him says great things about him, and in a world where it's easy to make enemies, Jim Comey has managed to do nothing but win admirers," Schumer said. As deputy attorney general, Comey will handle the day-to-day operations of the Justice Department with emphasis on terrorism and criminal matters. Comey also heads President Bush's Corporate Fraud Task Force, which in its first year charged more than 660 people with crimes, leading to 250 corporate fraud guilty pleas or convictions. Comey also is overseeing the politically sensitive investigation into who leaked CIA officer Valerie Plame's name to the media, a probe from which Ashcroft recused himself. Comey's friend, Fitzgerald, was chosen to run that investigation and now is presenting evidence before a federal grand jury in Washington. Even as Ashcroft eases back into a full-time schedule, Comey will remain at the forefront of the Justice Department's legal and political battles. Fitzgerald said Comey's primary goal in public service is to keep his reputation intact. "If it's a politically charged issue, he will call it straight," Fitzgerald said. "At the end, he'll walk out with his integrity." * * * The New Yorker: April 5, 2004 (Issue of 2004-04-12) THE OTHER WAR Why Bush’s Afghanistan problem won’t go away. by Seymour M. Hersh http://www.newyorker.com/printable/?fact/040412fa_fact In December, 2002, a year after the Taliban had been driven from power in Afghanistan, Donald Rumsfeld gave an upbeat assessment of the country’s future to CNN’s Larry King. "They have elected a government... The Taliban are gone. The Al Qaeda are gone. The country is not a perfectly stable place, and it needs a great deal of reconstruction funds," Rumsfeld said. "There are people who are throwing hand grenades and shooting off rockets and trying to kill people, but there are people who are trying to kill people in New York or San Francisco. So it’s not going to be a perfectly tidy place." Nonetheless, he said, "I’m hopeful, I’m encouraged." And he added, "I wish them well." A year and a half later, the Taliban are still a force in many parts of Afghanistan, and the country continues to provide safe haven for members of Al Qaeda. American troops, more than ten thousand of whom remain, are heavily deployed in the mountainous areas near Pakistan, still hunting for Osama bin Laden and Mullah Omar, the Taliban leader. Hamid Karzai, the U.S.-backed President, exercises little political control outside Kabul and is struggling to undercut the authority of local warlords, who effectively control the provinces. Heroin production is soaring, and, outside of Kabul and a few other cities, people are terrorized by violence and crime. A new report by the United Nations Development Program, made public on the eve of last week’s international conference, in Berlin, on aid to Afghanistan, stated that the nation is in danger of once again becoming a "terrorist breeding ground" unless there is a significant increase in development aid. The turmoil in Afghanistan has become a political issue for the Bush Administration, whose general conduct of the war on terrorism is being publicly challenged by Richard A. Clarke, the former National Security Council terrorism adviser, in a memoir, "Against All Enemies," and in contentious hearings before the September 11th Commission. The Bush Administration has consistently invoked Afghanistan as a success story -- an example of the President’s determination. However, it is making this claim in the face of renewed warnings, from international organizations, from allies, and from within its own military -- notably a Pentagon-commissioned report that was left in bureaucratic limbo when its conclusions proved negative -- that the situation there is deteriorating rapidly. In his book, Clarke depicts the victory in Afghanistan as far less decisive than the Administration has portrayed it, and he sharply criticizes the Pentagon’s tactics, especially the decision to rely on airpower, and not U.S. troops on the ground, in the early weeks. The war began on October 7, 2001, but, he wrote, not until seven weeks later did the United States "insert a ground force unit (Marines) to take and hold a former al Qaeda and Taliban facility... The late- November operation did not include any effort by U.S. forces to seal the border with Pakistan, snatch the al Qaeda leadership, or cut off the al Qaeda escape." Clarke told me in an interview last week that the Administration viewed Afghanistan as a military and political backwater -- a detour along the road to Iraq, the war that mattered most to the President. Clarke and some of his colleagues, he said, had repeatedly warned the national-security leadership that, as he put it, "you can’t win the war in Afghanistan with such a small effort." Clarke continued, "There were more cops in New York City than soldiers on the ground in Afghanistan. We had to have a security presence coupled with a development program in every region and stay there for several months." In retrospect, Clarke said, he believes that the President and his men did not respond for three reasons: "One, they did not want to get involved in Afghanistan like Russia did. Two, they were saving forces for the war in Iraq. And, three, Rumsfeld wanted to have a laboratory to prove his theory about the ability of small numbers of ground troops, coupled with airpower, to win decisive battles." As of today, Clarke said, "the U.S. has succeeded in stabilizing only two or three cities. The President of Afghanistan is just the mayor of Kabul." Deputy Assistant Secretary of Defense Joseph Collins, a Pentagon expert on Afghanistan, acknowledged that it was only in the past several months that "significant money began to flow" into Afghanistan for reconstruction and security. "We found in the security area we were doing the right thing, but not fast enough," he told me. The resurgence of the Taliban and Al Qaeda, Collins said, did not begin until early last year. "They began to realize at the end of 2003 that the key is not to fight our soldiers but U.N. officials and aid workers." In the long run, Collins added, "these tactics are self-defeating -- in Afghanistan and in Iraq." Clarke’s view of what went wrong was buttressed by an internal military analysis of the Afghanistan war that was completed last winter. In late 2002, the Defense Department’s office of Special Operations and Low Intensity Conflict (solic) asked retired Army Colonel Hy Rothstein, a leading military expert in unconventional warfare, to examine the planning and execution of the war in Afghanistan, with an understanding that he would focus on Special Forces. As part of his research, Rothstein travelled to Afghanistan and interviewed many senior military officers, in both Special Forces and regular units. He also talked to dozens of junior Special Forces officers and enlisted men who fought there. His report was a devastating critique of the Administration’s strategy. He wrote that the bombing campaign was not the best way to hunt down Osama bin Laden and the rest of the Al Qaeda leadership, and that there was a failure to translate early tactical successes into strategic victory. In fact, he wrote, the victory in Afghanistan was not, in the long run, a victory at all. Last month, I visited Rothstein in his office at the Naval Postgraduate School, in Monterey, California, where he is a senior lecturer in defense analysis. A fit, broad-shouldered man in his early fifties, he served more than twenty years in the Army Special Forces, including three years as the director of plans and exercises for the Joint Special Operations Command, at Fort Bragg, before retiring, in 1999. His associates depicted him as anything but a dissident. "He puts boots on the ground," Robert Andrews, a former head of solic, told me, referring to Rothstein’s missions in Central America, for which he earned a decoration for valor, and in the former Yugoslavia. Rothstein agreed to speak to me, with some reluctance, only after I had obtained his report independently, and he would not go into details about his research. "They asked me to do this," he said of the Pentagon, "and my purpose was to make some things better. All I want people to do is to look at the paper and not at me. I’ll tell you the good and the bad." The report describes a wide gap between how Donald Rumsfeld represented the war and what was actually taking place. Rumsfeld had told reporters at the start of the Afghanistan bombing campaign, Rothstein wrote, that "you don’t fight terrorists with conventional capabilities. You do it with unconventional capabilities." In December, the Taliban and Al Qaeda retreated into the countryside as the armies of the Northern Alliance, supported by American airpower and Special Forces troops, moved into the capital. There were many press accounts of America’s new way of waging war, including well-publicized reports of American Special Forces on horseback and of new technologies, like the Predator drones. Nonetheless, Rothstein wrote, the United States continued to emphasize bombing and conventional warfare while "the war became increasingly unconventional," with Taliban and Al Qaeda fighters "operating in small cells, emerging only to lay land mines and launch nighttime rocket attacks before disappearing once again." Rothstein added: What was needed after December 2001 was a greater emphasis on U.S. special operations troops, supported by light infantry, conducting counterinsurgency operations. Aerial bombardment should have become a rare thing... The failure to adjust U.S. operations in line with the post-Taliban change in theater conditions cost the United States some of the fruits of victory and imposed additional, avoidable humanitarian and stability costs on Afghanistan... Indeed, the war’s inadvertent effects may be more significant than we think. By the end of 2001, the Afghan war had essentially become a counterinsurgency. At this point, it was important to turn to a specific kind of unconventional warfare: "The Special Forces were created to deal with precisely this kind of enemy," Rothstein wrote. "Unorthodox thinking, drawing on a thorough understanding of war, demography, human nature, culture and technology are part of this mental approach... Unconventional warfare prescribes that Special Forces soldiers must be diplomats, doctors, spies, cultural anthropologists, and good friends -- all before their primary work comes into play." Instead, Rothstein said, "the command arrangement evolved into a large and complex structure that could not (or would not) respond to the new unconventional setting." The result has been "a campaign in Afghanistan that effectively destroyed the Taliban but has been significantly less successful at being able to achieve the primary policy goal of ensuring that al Qaeda could no longer operate in Afghanistan." Rothstein wrote that Rumsfeld routinely responded to criticism about civilian casualties by stating that "some amount" of collateral damage "is inevitable in war." It is estimated that more than a thousand Afghan civilians were killed by bombing and other means in the early stages of the war. Rothstein suggested that these numbers could have been lower, and that further incidents might have been avoided if Special Forces had been allowed to wage a truly unconventional war that reduced the reliance on massive firepower. The Administration’s decision to treat the Taliban as though all its members identified with, and would fight for, Al Qaeda was also a crucial early mistake. "There were deep divisions within the Taliban that could have been exploited through a political-military effort which is the essence of unconventional warfare," Rothstein said. "A few months of intensive diplomatic, intelligence and military preparations between Special Forces and anti-Taliban forces would have made a significant difference." Instead, Rothstein wrote, the American military campaign left a power vacuum. The conditions under which the post-Taliban government came to power gave "warlordism, banditry and opium production a new lease on life." He concluded, "Defeating an enemy on the battlefield and winning a war are rarely synonymous. Winning a war calls for more than defeating one’s enemy in battle." He recalled that, in 1975, when Harry G. Summers, an Army colonel who later wrote a history of the Vietnam War, told a North Vietnamese colonel, "You never defeated us on the battlefield," the colonel replied, "That may be so, but it is also irrelevant." Rothstein delivered his report in January. It was returned to him, with the message that he had to cut it drastically and soften his conclusions. He has heard nothing further. "It’s a threatening paper," one military consultant told me. The Pentagon, asked for comment, confirmed that Rothstein was told "we did not support all of his conclusions," and said that he would soon be sent notes. In addition, Joseph Collins told me, "There may be a kernel of truth in there, but our experts found the study rambling and not terribly informative." In interviews, however, a number of past and present Bush Administration officials have endorsed Rothstein’s key assertions. "It wasn’t like he made it up," a former senior intelligence officer said. "The reason they’re petrified is that it’s true, and they didn’t want to see it in writing." The high point of the American involvement in Afghanistan came in December of 2001, at a conference of various Afghan factions held in Bonn, when the Administration’s candidate, Hamid Karzai, was named chairman of the interim government. (His appointment as President was confirmed six months later at a carefully orchestrated Afghan tribal council, known as a Loya Jirga.) It was a significant achievement, but there were major flaws in the broader accord. There was no agreement on establishing an international police force, no procedures for collecting taxes, no strategy for disarming either the many militias or individual Afghans, and no resolution with the Taliban. Then came Iraq. In interviews with academics, aid workers, and non-governmental- organization officials, I was repeatedly told that, within a few months of the Bonn conference, as the United States began its buildup in the Gulf, security and political conditions throughout Afghanistan eroded. In the early summer of 2002, a military consultant, reflecting the views of several American Special Forces commanders in the field, provided the Pentagon with a briefing warning that the Taliban and Al Qaeda were adapting quickly to American tactics. "His decision loop has tightened, ours has widened," the briefing said, referring to the Taliban. "He can see us, but increasingly we no longer see him." Only a very few high-level generals listened, and the briefing, like Rothstein’s report, changed nothing. By then, some of the most highly skilled Americans were being diverted from Afghanistan. Richard Clarke noted in his memoir, "The U.S. Special Forces who were trained to speak Arabic, the language of al Qaeda, had been pulled out of Afghanistan and sent to Iraq." Some C.I.A. paramilitary teams were also transferred to Iraq. Meanwhile, the United States continued to pay off and work closely with local warlords, many of whom were involved in heroin and opium trafficking. Their loyalty was not for sale but for rent. Warlords like Hazrat Ali in eastern Afghanistan, near the Pakistan border, and Mohammed Fahim had been essential to America’s initial military success, and, at first, they had promised to accept Karzai. Hazrat Ali would be one of several commanders later accused of double- crossing American troops in an early, unsuccessful sweep for Al Qaeda, in 2002. Fahim, now the defense minister, is deeply involved in a number of illicit enterprises. The Bush Administration, facing a major war in Iraq, seemed eager to put the war in Afghanistan behind it. In January of 2003, Paul Wolfowitz, the Deputy Secretary of Defense, made a fifteen-hour visit to Kabul and announced, "We’re clearly moving into a different phase, where our priority in Afghanistan is increasingly going to be stability and reconstruction. There’s no way to go too fast. Faster is better." There was talk of improving security and rebuilding the Afghan National Army in time for Presidential and parliamentary elections, but little effort to provide the military and economic resources. "I don’t think the Administration understood about winning hearts and minds," a former Administration official told me. The results of the postwar neglect are stark. A leading scholar on Afghanistan, Barnett R. Rubin, wrote, in this month’s Current History, that Afghanistan today "does not have functioning state institutions. It has no genuine army or effective police. Its ramshackle provincial administration is barely in contact with, let alone obedient to, the central government. Most of the country’s meager tax revenue has been illegally taken over by local officials who are little more than warlords with official titles." The goal of American policy in Afghanistan "was not to set up a better regime for the Afghan people," Rubin wrote. "The goal instead was to get rid of the terrorist threat against America." The United States enlisted the warlords in its war against terrorism, and "the result was an Afghan government created at Bonn that rested on a power base of warlords." One military consultant with extensive experience in Afghanistan told me last year, "The real action is at the village level, but we’re not there. And we need to be there 24/7. Now we are effectively operating above the conflict. It’s the same old story as in Vietnam. We can’t hit what we can’t see." He added, "From January, 2002, on, we were in the process of snatching defeat from the jaws of victory." Last summer, a coalition of seventy-nine human-rights and relief organizations wrote an open letter to the international community calling for better security in Afghanistan and warning that the Presidential elections there, now scheduled for September, were imperilled. The letter noted, "For the majority of the Afghan people, security is precarious and controlled by regional warlords, drug traffickers or groups with terrorist associations. The situation is getting worse, and there is no comprehensive plan in place to halt the spiral of violence." Statistics compiled by care International showed that eleven aid workers were murdered in four incidents during a three-week period ending early last month, and the rate of physical assaults on aid workers in Afghanistan more than doubled in January and February compared with the same period in the previous year. Such attacks, a care policy statement suggested, inevitably led to cutbacks in Afghan humanitarian and reconstruction programs. In early 2003, for example, according to the Chicago Tribune, there were twenty-six humanitarian agencies at work in Kandahar, the main Afghan city in the south. By early this year, there were fewer than five. Even one of the most publicized achievements of the post-Taliban government, the improvements in the lives of women, has been called into question. Judy Benjamin, who served as the gender adviser to the U.S. Agency for International Development mission in Kabul in 2002 and 2003, told me, "The legal opportunities have improved, but the day-to-day life for women, even in Kabul, isn’t any better. Girls are now legally permitted to go to school and work, but when it comes to the actual family practice, people are afraid to let them go out without burkas." Conditions outside Kabul are far worse, she said. "Families do not allow females to travel -- to go to jobs or to school. You cannot go on many roads without being held up by bandits. People are saying they were safer under the Taliban system, which is why the Taliban are getting more support -- the lack of safety." Nancy Lindborg, the executive vice-president of Mercy Corps, one of the major N.G.O.s at work in Afghanistan, had a similar view. Outside of Kabul, she said, "everywhere I go, from Kunduz to Kandahar, I see no change for most women, and security for everybody has fallen apart since November of 2002." The Pentagon’s announcements of increased commitments to security and reconstruction were increasingly seen "as a big charade," Lindborg said. "The United States has left Afghanistan to fester for two years." The humanitarian community is not alone in its concern. In February, Vice- Admiral Lowell E. Jacoby, the head of the Defense Intelligence Agency, acknowledged during a Senate Intelligence Committee hearing that the growing Taliban insurgency was targeting humanitarian and reconstruction organizations. Over all, he said, Taliban attacks had "reached their highest levels since the collapse of the Taliban government." Heroin is among the most immediate -- and the most intractable -- social, economic, and political problems. "The problem is too huge for us to be able to face alone," Hamid Karzai declared last week in Berlin, as he appealed for more aid. "Drugs in Afghanistan are threatening the very existence of the Afghan state." Drug dealing and associated criminal activity produced about $2.3 billion in revenue last year, according to an annual survey by the United Nations Office on Drugs and Crime, a sum that was equivalent to half of Afghanistan’s legitimate gross domestic product. "Terrorists take a cut as well," the U.N. report noted, adding that "the longer this happens, the greater the threat to security within the country." The U.N. report, published last fall, found that opium production, which, following a ban imposed by the Taliban, had fallen to a hundred and eighty-five metric tons in 2001, soared last year to three thousand six hundred tons -- a twentyfold increase. The report declared the nation to be "at a crossroads: either (i) energetic interdiction measures are taken no... or (ii) the drug cancer in Afghanistan will keep spreading and metastasise into corruption, violence and terrorism -- within and beyond the country’s borders." Afghanistan was once again, the U.N. said, producing three-quarters of the world’s illicit opium, with no evidence of a cutback in sight, even though there has been a steady stream of reports from Washington about drug interdictions. The report said that poppy cultivation had continued to spread, and was now reported in twenty-eight of the nation’s thirty-two provinces. Most alarmingly, according to a U.N. survey, nearly seventy per cent of farmers intend to increase their poppy crops in 2004, most of them by more than half. Only a small percentage of farmers were planning any reduction, despite years of international pressure. Many of the areas that the U.N. report identified as likely to see increased production are in regions where the United States has a major military presence. Despite such statistics, the American military has, for the most part, looked the other way, essentially because of the belief that the warlords can deliver the Taliban and Al Qaeda. One senior N.G.O. official told me, "Everybody knows that the U.S. military has the drug lords on the payroll. We’ve put them back in power. It’s gone so terribly wrong." (The Pentagon’s Joseph Collins told me, "Counter-narcotics in Afghanistan has been a failure." Collins said that this year’s crop was estimated to be the second largest on record. He added, however, that the Afghan government is planning to "redouble" its efforts on narcotics control, and that the Pentagon is "now putting more money into it for the first time" -- seventy-three million dollars.) The easy availability of heroin also represents a threat to the well-being of American troops. Since the fall of 2002, a number of active-duty and retired military and C.I.A. officials have told me about increasing reports of heroin use by American military personnel in Afghanistan, many of whom have been there for months, with few distractions. A former high-level intelligence officer told me that the problem wasn’t the Special Forces or Army combat units who were active in the field but "the logistical guys" -- the truck drivers and the food and maintenance workers who are stationed at the military’s large base at Bagram, near Kabul. However, I was also told that there were concerns about heroin use within the Marines. The G.I.s assigned to Bagram are nominally confined to the base, for security reasons, but the drugs, the former intelligence officer said, were relayed to the users by local Afghans hired to handle menial duties. The Pentagon’s senior leadership has a "head-in-the-sand attitude," he said. "There’s no desire to expose it and get enforcement involved. This is hard shit," he added, speaking of heroin. The Pentagon, asked for comment, denied that there was concern about drug use at Bagram, but went on to acknowledge that "disciplinary proceedings were initiated against some U.S. military personnel in Afghanistan for suspected drug use." Asked separately about the allegations against marines, the Pentagon said that some marines had been removed from Afghanistan to face disciplinary proceedings, but blamed alcohol and marijuana rather than heroin. The drug lords traditionally processed only hashish inside the Afghan borders, and shipped poppies to heroin-production plants in northern Pakistan and elsewhere. A senior U.N. narcotics official told me that in the past two years "most of the heroin has been processed in Afghanistan, as part of a plan to keep profits in-country." Only a fraction of what is produced in Afghanistan is used there, the officer said. Nonetheless, a U.S. government-relief official told me, the "biggest worry" is that the growth in local production will increase the risk of addiction among G.I.s. A former C.I.A. officer who served in Afghanistan also said that the agency’s narcotics officials have been independently investigating military drug use. Afghanistan is regaining the Bush Administration’s attention, in part because the worsening situation in Iraq has increased the need for a foreign-policy success. State Department and intelligence officials who have worked in Kabul said that it is widely understood that Afghanistan’s Presidential and parliamentary elections, which had already been rescheduled, must be held before the American Presidential elections, on November 2nd. The upside to the political timetable has been a new commitment of American reconstruction funds -- more than two billion dollars, a fourfold increase over the previous year -- for schools, clinics, and road construction in Afghanistan. Richard Clarke wrote in his memoir that initially the aid funds were "inadequate and slowly delivered," and far below the thirteen hundred and ninety dollars per capita that was spent in the first years of the rebuilding effort in Bosnia and the nearly twenty billion dollars now earmarked for Iraq. At one point in 2002, American aid funds for Afghanistan came to only fifty-two dollars per person. "Why are we getting aid money now?" the U.S. government-relief official said to me, with a laugh. "We’ve been asking for two years and no one in their right mind thought about getting all this." In insisting on holding elections by the fall, the Administration is overriding the advice of many of its allies and continuing to bank heavily on Hamid Karzai. (As of this spring, an estimated ten per cent of eligible voters were registered.) Last week, the international conference in Berlin bolstered Karzai’s regime, and his election prospects, by promising to provide more than four billion dollars in aid and low-cost loans in the next year -- although that figure includes more than a billion dollars previously pledged. Half of the contributions came from the Bush Administration. Secretary of State Colin Powell praised Karzai for having turned Afghanistan from "a failed state, ruled by extremists and terrorists, to a free country with a growing economy and emerging democracy." Nonetheless, in interviews for this article, Hamid Karzai was consistently depicted by others as unsure of himself and totally dependent on the United States for security and finances. One of Karzai’s many antagonists is his own defense minister, Mohammed Fahim. Last year, the Bush Administration was privately given a memorandum by an Afghan official and American ally, warning that Fahim was working to undermine Karzai and would use his control over money from illegal businesses and customs revenue to do so. Fahim was also said to have recruited at least eighty thousand men into new militias. The United States’ continuing toleration of warlords such as Fahim and General Abdul Rashid Dostum -- an alleged war criminal and gunrunner who, after being offered millions of dollars by Washington, helped defeat the Taliban in the fall of 2001 -- mystifies many who have long experience in Afghanistan. "Fahim and Dostum are part of the problem, and not the solution," said Milt Bearden, who ran the C.I.A.’s Afghan operations during the war with the Soviet Union. "These people have the clever gene and they can get us to do their fighting for them. They just lead us down the path," Bearden said. "How wonderful for them to have us knock off their opposition with American airplanes and Special Forces." The wild card in the election planning may be the Taliban. The former Taliban foreign minister, Wakil Ahmed Muttawakil, who spent months in American custody, has repeatedly offered to open a channel to the Taliban leadership for extended talks. "But the Administration only wants to get help in finding Osama bin Laden," a Democratic Senate aide said. "Its only concern is tactical information." Meanwhile, the Taliban’s influence has grown throughout the south and east of Afghanistan, in defiance of -- or, perhaps, because of -- continued American air and ground assaults, which inevitably result in civilian casualties. In an effort to strengthen Karzai, the American military command has tried to reduce its own reliance on some regional warlords. The most recent target was Ismail Khan, the popular independent governor of Herat, a large province in western Afghanistan, adjacent to Iran. Khan, a bitter enemy of the Taliban, supported the initial American invasion of Afghanistan after September 11th. He has since defied the central government and refuses to hand over to Kabul most of the tax and customs revenue. (Herat is an ancient trade center.) Kahn personifies how difficult it is for the U.S. to separate its enemies from its allies in Afghanistan. "If Mohammed Fahim is a government minister and Ismail Khan is a warlord," one American official told me, "you’re abusing the language." The official’s point was that Khan has provided better security and more stability for the local population than is found in other Afghan provinces, and international observers believe that he would probably win a provincial election. But he treats Herat as a private fiefdom, and has alarmed many in the Bush Administration with his vocal support of Iran; last fall, he was quoted as calling it "the best model of an Islamic country in the world." One regional expert told me that Karzai -- who was always apprehensive about Ismail Khan -- raised the question of how to remove him last spring, during a brief visit by Donald Rumsfeld to Kabul. "He asked Rumsfeld for his support," the expert recalled. "Rumsfeld wished him good luck but said the United States could not get involved. So Karzai got cold feet." The issue was revisited again in February, a former C.I.A. consultant told me, by the American military command at Bagram. Sometime that month, the American command put out a request to its intelligence components for a new operational plan for Khan. The former C.I.A. consultant learned from within the intelligence community that there was agreement that Khan had to be neutralized. Asked what that meant, he said that he was told "Khan had to be eliminated -- we’ve got to end his influence." (The Pentagon denied that there was such a plan.) On March 21st, an armed conflict erupted in Herat between Khan’s forces and those loyal to the central government. Accounts of what happened vary widely; it was not immediately clear who started what. According to an account by U.N. workers in Afghanistan, filed to headquarters in New York, tensions had been mounting between Khan and one of his bitter rivals, General Abdul Zaher Naibzadah, over control of the Afghan military’s Herat garrison. Khan’s son heard reports that there had been an assassination attempt on his father, and drove to the General’s house, where Naibzadah’s bodyguards gunned him down, along with others. According to the U.N. dispatch, Ismail Khan took violent revenge on his attackers, burning down the local headquarters of the Afghan militia and killing scores. Some press accounts put the death toll of the subsequent daylong battle at a hundred or more; other accounts, emanating from Kabul, said that fewer than two dozen were killed. The U.N. account included reports that a personal phone call from Karzai to Khan was necessary to defuse the situation. In the next days, a division of the Afghan National Army, sent by the central government, moved into Herat to restore order. There is no evidence that the American commanders were involved in any attempt on Khan’s life, the former C.I.A. consultant told me. But, according to some officials, Americans were attached to Afghan military units that were present in Herat. "We clearly had embedded American trainers and advisers with the Afghan troops," the consultant said. "They knew what was going on." The result, the U.N. reported, was that Khan "may become even more intractable in his dealing with the central government." The American-endorsed plan to challenge Khan’s leadership and strengthen Karzai’s national standing inside Afghanistan, it seemed, had served to make Khan a more determined enemy. The U.S. government-relief official told me of spending weeks last year travelling through Afghanistan -- including the south and the east, areas with few ties to the central government in Kabul. "They’d say, ‘We don’t like the Taliban, but they did bring us security you haven’t been able to give us,’" the official said. "They perceived that we were allied with the bad guys -- the warlords -- because of our war on terrorism." The official recalled being asked constantly about the American war in Iraq. "They were concerned about Iraq, and wanted to know, ‘Are you going to stay?’ They remembered how we left" -- after the American-sponsored defeat of the Soviet Union in Afghanistan. "They’d say, ‘You guys are going to leave us, like you did in 1992. If we had confidence in the staying power of America, we’d deal with you.’" The official concluded, "Iraq, in their mind, meant that America had bigger priorities." One U.N. worker who is helping to prepare for elections in Afghanistan told me that American aid funds now headed into Afghanistan, whatever the Administration’s motives, are essential for the country’s future. "We’ve got a golden window of opportunity that will close on November 2nd." It’s a cynical process, he added. "A key factor in holding the election will be the non- interference of the various drug-dealing warlords around the nation, and stemming the drug trade will not be a priority." The message he’s getting from the warlords, the U.N. worker said, was that if the U.S. attempted a "hard and heavy" poppy-eradication program, the warlords would disrupt the elections. The U.N. worker said that President Karzai was perceived as "a weak leader with very little street credibility." He told me that, again and again, when he met with village elders, as part of his work, "the old people say, ‘Hamid is a good man. He doesn’t kill people. He doesn’t steal things. He doesn’t sell drugs. How could you possibly think he could be a leader of Afghanistan?’" * * * The Scotsman (Edinburgh): April 4, 2004 DEMONSTRATORS PROTEST AGAINST 'BRITAIN'S GUANTANAMO BAY' By Rachel Williams, PA News http://news.scotsman.com/latest.cfm?id=2739208 Civil rights groups campaigning for the release of inmates held without trial under anti-terrorism laws protested outside the prison they describe as "Britain’s Guantanamo Bay" today. Twelve suspects are currently held at Belmarsh High Security Prison, south east London, and another at Broadmoor Prison under the Antiterrorism, Crime and Security Act (ATCSA). Around 100 protesters gathered outside Belmarsh to hear speakers from groups including the Campaign Against Criminalising Communities (CAMPACC), the Muslim Parliament of Great Britain, the Green Party of England and Wales and the Stop the War Coalition. They held placards saying "Belmarsh is Britain’s Guantanamo" and distributed leaflets which said the detainees were being held in "concrete coffins" in conditions which are "tantamount to torture". Jenny Jones, the Green Party deputy mayor of London, told the rally it was "complete injustice" that people should be held without trial in a country that prided itself on its democracy and justice system. "We see this is an instance of society collapsing, of fairness and justice being lost," she said. Human rights lawyer Gareth Peirce, who represents some of the detainees said they felt completely forgotten. Speaking to journalists afterwards she said: "If there was hope at the beginning that hope has now ebbed away. "They see that they are intended to be bricked in forever. "They don’t know the evidence against them, they just know they are locked up. "The hearings are held in secret and the lawyers are not told either." Les Levidow of CAMPACC, told protesters the suspects’ detention was an example of racist stereotyping against Muslims which was being used to terrorise migrant communities. "Their detention has nothing to do with protecting us from violence, its purpose is entirely political," he said. "It’s to frighten the population into believing we are facing a terrorist threat." Dr Ghayasuddil Siddiqui, the leader of the Muslim Parliament of Great Britain said the way young Muslims were being "harassed" by the authorities was causing them to lose faith in Britain as a democratic and just nation. He said the detention of innocent men was to give the false message to the world that Muslims were the "enemies of civilisation". "The security forces are terrorising us and intimidating us," he added. A message of solidarity was being signed by protesters to be taken into the prison and given to the detainees. Two demonstrators stood in a cage to protest against solitary confinement in Turkish jails. Protesters were treated to performances by a drama group, drummers and a rap artist. They held a two minutes’ silence while facing the jail to show their support for the detainees. The ATCSA was passed weeks after the September 11 Terrorist atrocities in New York. It allows the detention, without trial, of terror suspects. The detention powers apply only to the foreign nationals who are suspected of involvement in international terrorism, but whom the Government cannot deport because, for example, they could face death or torture at home. Anyone detained under the measures is free to leave the UK voluntarily at any time. The Act was once claimed by Amnesty International to have created a "Guantanamo Bay in our own back yard". Last month a Libyan who had been detained for 16 months at Belmarsh as a suspect terrorist was ordered to be freed after a Home Office appeal was rejected. His release came after Home Secretary David Blunkett lost a challenge at the Court of Appeal to a ruling by the Special Immigration Appeals Commission that the detention without charge or trial was unjustified. * * * Zaman (Istanbul): April 3, 2004 TURK RETURNED HOME AFTER TWO YEARS AT GUANTANAMO By Aytekin Gezici http://www.zaman.org/?bl=international&alt=&trh=20040403&hn=7141 ADANA - Nuri Mert, a Turk taken into custody by the US during the invasion of Afghanistan following the September 11th attacks, has finally been returned home and released. Mert was delivered to the Turkish Police in the Adana Incirlik Military Airfield by plane four days ago. Mert was interrogated for 4 days and then set free by the Adana Security Court. Married with four children, Nuri Mert, was working as a National Lottery Agent with his father Mehmet Mert in the town of Dogubeyazit, Van in 2001, when he was forced to go to Iran because of his poverty, leaving his work and family behind, going from there to Afghanistan later on. Though the means by which Mert managed to reach Afghanistan after passing through Iran from Dogubeyazit has not yet been determined, it has been discovered that he was persuaded to do so by members of Al Qaeda. According the deposition he made to the Adana Police, Mert was to have waited in a home in the city of Harat in Afghanistan for a week before going to an Al Qaeda stronghold, but he was captured there by Taliban troops. Mert was imprisoned for three months in a prison in Harat. Mert was then delivered to American soldiers and brought to Guantanamo Bay. He says that he endured psychological and physical torture at Guantanamo, where he was imprisoned for 2 years, and added that he is now suffering from amnesia as a result. After interrogating Mert several times without finding him guilty of any wrongdoing, the US delivered him to the Adana Police by plane. * * * Reuters: April 2, 2004 US FREES 15 MORE PRISONERS FROM GUANTANAMO BASE By Charles Aldinger http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=4738667 WASHINGTON (Reuters) - The United States has released 15 more prisoners from the U.S. naval base at Guantanamo Bay, Cuba, sending them to Afghanistan, Turkey, Tajikistan, Sudan, Iraq, Jordan and Yemen, the Pentagon said on Friday. A defense official said the prisoners, who were not identified beyond their nationalities, were flown out of Guantanamo in the past few days. It was the latest of several releases from the military prison, set up after President Bush declared a global war on terrorism in 2001 and where about 595 people are still detained. Only two of those still held have been charged with crimes. Most of those sent home have been freed, although some are being detained further by their countries for possible prosecution. The Pentagon said this week's release brought to 134 the number of detainees released from Guantanamo since the detention facilities opened in January 2002. Twelve others have been transferred for continued detention in their home countries. The previous release was announced on March 15, when 23 men were sent to Afghanistan and three to Pakistan. ONLY TWO CHARGED Of about 595 still being held at Guantanamo most were caught in Afghanistan. Two have been charged and four have been given lawyers. The two are expected to face trial before U.S. military "Commissions." Responding to charges by civil rights and legal groups that the United States has no right to hold hundreds of people for two years or more without charges, Defense Secretary Donald Rumsfeld has said Washington has a duty to keep suspected "terrorists" in custody in the wake of the September 2001 attacks on America. Rumsfeld said recently that at least one of the prisoners released from Guantanamo has resumed guerrilla activities, but declined to identify even the nationality of the prisoner or the nature of his activities. "The decision to transfer or release a detainee is based on many factors, including whether the detainee is of further intelligence value to the United States and whether he is believed to pose a threat to the United States," the Pentagon said in a statement on Friday. "The circumstances in which detainees are apprehended can be ambiguous, and many of them are highly skilled in concealing the truth. The process of evaluation and detention is not free of risk -- at least one detainee has gone back to the fight," the statement said. The department said again that it expected to release or transfer other detainees in the future "during the course of the war on terrorism." * * * Newsday: April 2, 2004 PENTAGON FREES 15 HELD AT GUANTANAMO http://www.newsday.com/news/nationworld/world/wire/sns-ap-guantanamo-bay- releases,0,7410621.story WASHINGTON (AP) -- The Pentagon said Friday it released 15 people held as terrorism suspects at a U.S. military prison at Guantanamo Bay, Cuba, reducing the number confined there to 595. The people who were transferred to their home countries were from Afghanistan, Turkey, Tajikistan, Sudan, Iraq, Jordan and Yemen. The Pentagon did not provide other details about the people or their release. "The decision to transfer or release a detainee is based on many factors, including whether the detainee is of further intelligence value to the United States and whether he is believed to pose a threat to the United States," a brief Pentagon statement said. Previously, 119 detainees were transferred for release and 12 others were transferred for continued detention (four to the Saudi Arabian government, one to the Spanish government and seven to the Russian government). Most of the people held at Guantanamo Bay were captured in 2001 during the early months of the war in Afghanistan. Human rights group have challenged the legal basis for their detention without being charged with crimes. * * * Village Voice: April 1, 2004 Mondo Washington U.S. TURNS TO MERCENARIES by James Ridgeway http://www.villagevoice.com/issues/0414/mondo6.php WASHINGTON, D.C. -- The four "civilians" killed, burned, and dragged through the streets of Fallujah, Iraq, on Wednesday morning weren’t really civilians. Or were they? They were employees of Blackwater Security Consulting, a rural North Carolina subsidiary of Blackwater USA, one of several dozen firms taking over the duties of the regular American military in Iraq, protecting buildings and grounds as well as officials. In fact, Blackwater itself is in charge of protecting L. Paul "Jerry" Bremer, the U.S. official who now runs Iraq as head of the Coalition Provisional Authority. In the coming weeks, hundreds of American civilian workers who really are civilians will be entering Iraq to work on private contracts let by the Bush government. Their security will be provided by guards (like the Blackwater men killed yesterday) from a variety of security firms, often consisting of former U.S. military special ops people. The use of private military forces raises tricky questions for the U.S. government. The most important one is why is the Bush administration is recruiting civilians to work there when our government can't possibly guarantee the security of the area. Another question: Why aren't these jobs in combat zones being carried out by American military forces, instead of mercenaries? Building up a surrogate military force, along the lines of the French Foreign Legion or the Gurkhas, has been the ambition of conservatives for many years. The thinking is that future wars will be characterized by "low-intensity," or guerrilla, warfare. If the fighting is done by a force of irregular surrogates, people won't question their casualties as they would those of regular military personnel. The contras in Nicaragua were an example of what a surrogate fighting force might look like, and special ops types from South Africa’s former apartheid regime have long been involved in fighting in southern Africa. The latest incident involving one of these relatively new mercenary companies occurred in Haiti. There the Steele Foundation, a private security firm based in California, was protecting the palace when Jean-Bertrand Aristide was summarily rushed to the airport at Port-au-Prince and onto a mysterious plane that took off with no listed destination -- raising the inevitable question of their involvement with American intelligence. According to the Philadelphia Inquirer, Aristide feared that the Steele people would abandon their jobs and leave him to be killed by the rebels. Subsequent press reports noted that an extra detail of Steele people requested by Aristide for added protection were blocked by American officials from leaving California for Haiti. In Iraq, Blackwater provides security not only for Bremer but also for food shipments in the turbulent Fallujah area. The private security firms working in Iraq see big salaries as well as plenty of potential danger. Often, they have been seen in military garb but without the insignias that would formally designate them as U.S. military. This situation raises the question of whether or not they can be treated as soldiers under the Geneva conventions -- whether they are provided those protections -- or whether as irregulars they will get dealt with as spies. Providing mercenaries is a popular and growing business in part because their use in places like Iraq presumably would release regular military personnel for other work -- or allow them to go back to the U.S. Blackwater USA’s other subsidiaries are Blackwater Training Center, Blackwater Target Systems, Blackwater Canine, and Blackwater Air. The company proclaims: "We have established a global presence and provide training and tactical solutions for the 21st century," adding, "Our clients include federal law enforcement agencies, the Department of Defense, Department of State, and Department of Transportation, local and state entities from around the country, multinational corporations and friendly nations from all over the globe." * * * Galway Advertiser: Date: 01-04-2004 Students lobby for the rights of Guantanamo Bay detainees http://www.galwayadvertiser.ie/dws/story.tpl?inc=2004/04/01/news/44322.html Three students at the Irish Centre for Human Rights in NUIG are currently organising a petition to present to the European Parliament demanding that the detainees in Guantanamo Bay be treated in accordance with international human rights. At a lunch-time seminar in NUIG yesterday to launch the petition, more than 100 people gathered to listen to the students' concerns. They heard that more than 600 detainees in Guantanamo Bay, from various parts of the world, are being denied their human rights as guaranteed under international law Julie Veillette from Canada, Ruth Barry from Dublin, and Jennifer Smith from New York are all studying for a master’s in law at the university. Their lecturer, Dr Ray Murphy, gave a video presentation at the seminar outlining their concerns. Guantanamo Bay is used as a detention centre by the US, and detainees there are unable to communicate with their families or their lawyers, even though they have not been formally charged with any crime. Serious allegations of torture have also been made by some who have been released. The students will be collecting signatures in the city centre at the weekend, and signatures will also be accepted via their website at detainees_rights_action_group@hotmail.com. * * * Los Angeles Times: April 1, 2004 Commentary OUTSOURCING THE HUNT FOR BIN LADEN * Pakistan should be at the top of Bush's 'axis of evil.' By Leon Hadar http://www.latimes.com/news/opinion/commentary/la-oe-hadar1apr01,1,7339253.story Imagine the following scenario, which includes all the historical analogies that neoconservative ideologues like to apply -- World War II, Hitler, appeasement -- plus a bonus reference to the evil du jour, Spain. As American and Allied forces invade Nazi Germany in 1945, Adolf Hitler, Heinrich Himmler and several SS troops flee to Fascist Spain, where they hide in the Pyrenees Mountains and mount guerrilla attacks against the Free French government. The American response? To ask Generalissimo Francisco Franco if he would be kind enough to send some of his forces to catch those Nazis -- and it would be nice if it could all be wrapped up before the 1948 presidential election. Sound absurd? Well, there is an element of the absurd in the acrimonious debate on 9/11 taking place these days. Lawmakers and pundits are arguing about what could have been done to prevent the terrorist attacks. But they all agree that if Americans could rewind history to pre-9/11, they would have done everything humanly possible to capture or kill Osama bin Laden and his Al Qaeda associates -- sooner rather than later. But why look backward? Bin Laden and Ayman Zawahiri -- the war-on-terrorism's Hitler and Himmler, respectively -- are still alive and well, as far as we know, and living somewhere in Pakistan. Yet to whom is the United States assigning the task of dealing with the gravest threat to its national security and to ensure that such horrific events won't happen again? To the best and the brightest in the American armed forces and intelligence services? You would assume that we owe as much to the victims of 9/11 and their families. But no. In fact, the job of wiping out the leaders of the group responsible for the worst attack on the homeland has been outsourced to a corrupt and incompetent regime that is ruling a country where anti-American Islamist groups roam the streets -- and the corridors of power. Indeed, Pakistan's military and security services, which are in charge of hunting Bin Laden and his troops, were once allied with the Taliban, the former Al Qaeda protectors in Afghanistan. And some of its members are sympathetic to a radical Islamist agenda. Until recently, the nation's top nuclear scientist was selling his country's secret military technology to Iran, Libya and North Korea. Pakistan should have topped President Bush's "axis of evil" list. Instead, it has been designated as a "non-NATO" ally of the United States. And its leader, Pervez Musharraf, a military dictator who ousted the country's democratically elected, although admittedly unpopular, government, has been feted in Washington as a key partner of the United States in the global campaign to combat terrorism. This policy helped to produce last month's pathetic spectacle in the war on terrorism. Musharraf was eager to divert media attention from Abdul Qadeer Khan's nuclear arms bazaar and to impress visiting U.S. Secretary of State Colin Powell. Thus, Musharraf and his aides raised expectations that Zawahiri would be captured in a major battle with the guerrillas. But the Pakistanis, after bungling the military operation and suffering many casualties, discovered a network of secret tunnels that the fighters had used to escape. Adding insult to injury, Al Qaeda's No. 2 figure showed up on a new audiotape calling for Musharraf's overthrow. Some military observers might conclude that the Pakistani army just doesn't have the competence to mount a serious fight against Al Qaeda and capture its leaders. Other critics might explain the failure to apprehend Bin Laden and his associates by pointing to the support that radical Islamists enjoy among the rank and file of the Pakistani military and security services. Take your pick, but consider what an American "war president" would have done in that 1945 scenario. He would have given Franco an ultimatum: Catch Hitler and Himmler, hand them over to us alive or dead, and destroy all the SS remnants. And do it ASAP. If you can't deliver, the full force of the U.S. military will be employed to make that happen. Americans should not wait for congressional commissions and historians to explain why their war president wasn't taking that same kind of action against Bin Laden and Zawahiri in 2004, and why he decided to subcontract the job to an inept and untrustworthy military dictator whose associates espouse anti- Americanism, coddle terrorists and sell WMD to "rogue states." What they know already sounds even worst than appeasement. [ Leon Hadar is a research fellow in foreign policy studies at the Cato Institute. ] * * * BBC: April 1, 2004 LEADING LAWYER WINS MUSLIM AWARD http://news.bbc.co.uk/2/hi/uk_news/3588333.stm Ms Peirce said Muslims in the UK suffer much 'hatred and venom' A human rights lawyer who represented Guantanamo Bay detainee Moazzem Begg has won an award for her work. Gareth Peirce was honoured at the Muslim News Awards in London for championing a Muslim cause. During her acceptance speech Ms Pierce - best known for her work with the Guildford Four - expressed anger over treatment of Muslims. She claimed there was an unprecedented amount of "hatred and venom" being directed against the Muslim community. Ms Peirce collected the Annemarie Schimmel Award at the ceremony which emphasises the important role Muslims play in the British community. Dark age She said: "We have lost our way in this country. We have entered a new dark age of injustice and it is frightening that we are overwhelmed by it." The awards covered a range of fields including excellence in the arts, education, citizenship, and community relations. Among the recipients were Charles Le Gai, a writer, diplomat and scholar, who won the Creativity in Islamic Thought category. The St Mary The Virgin Primary School in Butetown, Cardiff was a joint winner of the excellence in education category for promoting religious and cultural tolerance. And the excellence in media award was won by Sandra Herbert, a religious producer at BBC Radio Leicester. Foreign Secretary Jack Straw was unable to attend, but he praised Muslim communities in a video message broadcast to the ceremony. He said: "The awards give valuable recognition to those who win them and they help to highlight the vitality and the achievement to be found within our Muslim communities. "It is more important than ever before that we in government build a close relationship and dialogue with Muslim communities. " * * * * * * * * *