MISCELLANEOUS NEWS REPORTS * 2004.06.01 to date

misc_digest_2004_6.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/

================================================================================


Toronto Globe and Mail --

June 30, 2004

DETAINEE'S LAWYER TO PRESS US
Hot on heels of court ruling, counsel seeks
speedy access to Canadian held in Cuba

By ESTANISLAO OZIEWICZ

http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20040630/TERROR30
/TPInternational/Americas

The lawyer for Omar Khadr, the last Canadian being held at Guantanamo Bay, Cuba,
intends to press for immediate access to his client on the heels of the U.S.
Supreme Court ruling that terrorism suspects have a legal right to question
their detention.

"I want to see my client. I want to find out how he is being treated. I'll also
be asking the American government to provide me with any and all documentation
they have relied upon to justify his incarceration," Edmonton-based lawyer
Dennis Edney said in an interview yesterday.

The Foreign Affairs Department said it welcomes Monday's U.S. ruling and might
consider intervening on Mr. Khadr's behalf if his lawyer launches a judicial
review of his imprisonment. But Mr. Edney reiterated previous complaints that
the Canadian government has consistently turned aside his pleas for help, saying
he has no confidence that Ottawa is willing to take up the challenge now.

"Here we have a Canadian citizen, facing the death penalty, and what have they
done to this point in time? Absolutely nothing. . . . The Canadian government
has been absolutely silent about the treatment of this young boy," he said.

Mr. Edney's client is a 17-year-old Canadian accused of, but not charged with,
killing an American soldier in Afghanistan when he was 15. Together with
hundreds of other detainees whom Washington has labelled "enemy combatants," Mr.
Khadr has been held at the U.S. naval base at Guantanamo Bay for almost two
years.

Monday, the U.S. Supreme Court ruled that "enemy combatants" must have recourse
to challenge their detention before a judge or a neutral court. The ruling
effectively undermines the assertion by President George W. Bush's
administration that such detainees have no right to protection under the Geneva
Conventions and can be held indefinitely without access to lawyers.

However, it remains unclear what legal route lawyers and family members must
take to win the detainees' release or to effect major changes in the conditions
of their confinement. Nor is it clear how long the process may take.

As if to undercut the ruling, the U.S. military announced yesterday that it has
formed a five-member tribunal to try three terrorism suspects held at
Guantanamo.

The three charged are Ali Hamza Ahmed Sulayman al-Bahlul of Yemen, Ibrahim Ahmed
Mahmoud al-Qosi of Sudan and David Hicks of Australia. The three are charged
with conspiring to commit war crimes. Mr. Hicks also is charged with attempted
murder and supporting the enemy.

Mr. Edney, who says he is acting for Mr. Khadr through his grandmother, Fatima
Elsamnah, won intervenor status in the U.S. Supreme Court hearing and argued
that Washington is not only flouting the Geneva Conventions, but also the United
Nations Convention on the Rights of the Child and principles consistent with the
Canadian Charter of Rights and Freedoms.

Mr. Khadr is the only Canadian citizen currently at Guantanamo, and one of just
a handful of juveniles among the nearly 600 remaining prisoners. He is the
younger brother of Abdurahman Khadr, who was released last year although he
admitted to attending an al-Qaeda training camp in Afghanistan in 1998.

Mr. Edney said he decided to act on behalf of Omar because Ottawa has refused to
do so. Foreign Affairs has said it decided not to intervene in the U.S. court
case because it decided the case dealt not with universal human rights but with
the division of powers under the U.S. Constitution.

In contrast to Canada, countries such as Britain, France and Australia, and some
in the Middle East, have all publicly insisted that any of their citizens held
at Guantanamo be released or afforded due process under international law.
Yesterday, Stockholm said it is considering providing legal aid to a detained
Swede.

Mr. Edney said it took Foreign Minister Bill Graham seven months to reply to his
letters asking Ottawa for help. Canadian officials have visited Mr. Khadr, but
Mr. Graham refused to give his lawyer any information about his health or
treatment in detention.

"He wrote to me and said, 'By now, you'll understand that we chose not to
participate in the challenge before the U.S. Supreme Court because it was an
issue of jurisdiction.' "

Rodney Moore, a spokesman for Foreign Affairs, said yesterday that Ottawa is
concerned about Mr. Khadr's detention and continues to discuss his treatment
with Washington, "including his entitlement to due process."

* * *


Boston Globe --

June 30, 2004

PENTAGON EYES HEARINGS FOR DETAINEES
Nonjudicial review weighed to satisfy high court ruling

By Bryan Bender, Globe Staff

http://www.boston.com/news/nation/articles/2004/06/30/pentagon_eyes_hearings_for
_detainees/

WASHINGTON -- The Bush administration is considering granting all "enemy
combatants" from the war on terrorism a hearing to determine their legal status
-- as called for by the Geneva Conventions. The move would be made to satisfy
the Supreme Court's ruling that they have the right to contest their indefinite
confinement and to avoid entering into a tangled web of legal cases, according
to Pentagon and Justice Department officials.

The Supreme Court ruled Monday that the government must show why it is holding
each detainee, who in turn has the right to challenge that evidence in court. To
avoid granting legal counsel for the 595 detainees at the US Naval Base,
Guantanamo Bay, Cuba, and others held at various secret locations, government
lawyers may simply conduct a nonjudicial review of the circumstances surrounding
their capture. The government could then argue it has followed international
norms if individuals or their families subsequently petition the courts.

Such a strategy would reverse the White House's controversial decision 2 years
ago to deny Al Qaeda and Taliban prisoners what is known as an Article V hearing
under the Geneva Conventions. Such a proceeding is required to determine whether
individuals captured on the battlefield are prisoners of war or unlawful
combatants who flouted the laws of war and as a result do not qualify for
protected POW status. President Bush declared both Taliban and Al Qaeda captives
enemy combatants without holding such a proceeding, a move widely criticized by
international human rights activists.

Holding such an administrative hearing now could capitalize on the Supreme
Court's ruling that Bush has the authority to hold enemy combatants indefinitely
without formally charging them. The Pentagon is already planning to hold annual
reviews for the Guantanamo detainees to determine whether they should be
released or transferred to their home countries, and some government lawyers
said they believe the "administrative review process" could be modified to
respond to the Supreme Court.

"We are still studying the decision and determining how we can modify our
existing procedures to satisfy the court," said a senior Pentagon official who
asked not to be named.

Mark Corallo, a Justice Department spokesman, said government lawyers were still
digesting the Supreme Court's decision and had yet to settle on a way forward.
But he said the justices "pointed to the possibility that military Article V
proceedings would be sufficient," a view backed up by other administration
officials.

The Supreme Court's decision referred to a "neutral observer" -- not necessarily
a court -- as the requirement for a fair hearing on a captive's detention. Legal
specialists said the Article V approach would constitute a narrow reading of the
Supreme Court's decision. The detainees or their families would still have the
right to petition the courts, but the government could then argue that they were
provided the minimum review required by international law.

"One of the first things they are going to do is say, 'Look, we want to be able
to challenge the government assertion that we are unlawful combatants,"' said
Martin Flaherty, chairman of the New York Bar Association's Human Rights
Committee and an international law professor at Fordham University. To avoid
such challenges, the government "may say, 'Look, we have instituted procedures
that comport with the Geneva Conventions, and therefore, those administrative
procedures suffice for the purposes of international law." The government,
Flaherty added, could argue " 'we have given them an administrative review.' "

The decision earlier this year by Defense Secretary Donald H. Rumsfeld to
institute an annual review process for all of the Guantanamo prisoners, headed
by Navy Secretary Gordon R. England, was seen as an effort to strengthen the
government's position ahead of the Supreme Court ruling.

Modifying the rules of these administrative reviews for detainees to meet the
requirements of Geneva Convention Article V could make it more likely that
courts would rule for the government if detainees formally classified as enemy
combatants sought to appeal their status in federal court, said Eugene R.
Fidell, who runs the National Institutes of Military Justice in Alexandria, Va.
Rather than bringing all the detainees fighting their detention to court, the
courts will decide which cases to pursue when petitioned after the
administrative reviews.

It would also be a relatively simple solution if deemed satisfactory. "Under the
Third Geneva Convention, Article V, it says there should be some sort of
determination of whether people are lawful combatants or not," said Flaherty.

"In practice, that determination does not have to amount to much" other than a
cursory review of the circumstances of their capture.

On the battlefield, for example, it can be overseen by two military officers who
were not directly involved in the actual capture of a prisoner. Some officials
yesterday speculated that if the government chooses the Article V approach,
England would be replaced by an individual that could be considered neutral,
such as a specially appointed military or civilian judge.

Meanwhile, in what some observers viewed as a further indication that the
Pentagon will try to satisfy the Supreme Court by tweaking its current process,
the Pentagon yesterday selected military officers to hear charges against the
first three Guantanamo detainees set to go before a military tribunal.

Charges were referred to them for Ali Hamza Ahmed Sulayman al Bahlul of Yemen,
who is accused of producing videos for Osama bin Laden glorifying the killing of
Americans; Ibrahim Ahmed Mahmoud al Qosi of Sudan, accused of being a bin Laden
bodyguard and accountant; and David Hicks of Australia, a Muslim covert who
allegedly attended Al Qaeda training camps and fought in Afghanistan.

[ Charlie Savage of the Globe staff contributed to this report. Bender can be
reached at bender@globe.com. ]

* * *


Los Angeles Times --

June 29, 2004

DETAINEES MAY BE MOVED OFF CUBA BASE

By John Hendren, Times Staff Writer

http://www.latimes.com/news/nationworld/nation/la-na-
detain30jun30,1,7166832,print.story?coll=la-home-headlines

WASHINGTON -- Senior Bush administration officials are considering moving
hundreds of detainees from a facility in Cuba to prisons within the United
States in response to Supreme Court rulings this week that granted military
prisoners access to U.S. courts, officials said Tuesday.

As attorneys for detainees at the U.S. naval base at Guantanamo Bay, Cuba, began
preparing the first of hundreds of expected lawsuits demanding that the
government justify the detentions, senior administration officials acknowledged
that they were unprepared for a rebuke in two landmark Supreme Court decisions
that rejected the military's treatment of prisoners in the war on terrorism.

Now, after being handed the losses, the administration has been left to scramble
to develop a strategy for granting hearings to detainees without having to cope
with an unwieldy series of lawsuits throughout the nation.

"They didn't really have a specific plan for what to do, case-by-case, if we
lost," a senior defense official said on condition of anonymity. "The Justice
Department didn't have a plan. State didn't have a plan. This wasn't a
unilateral mistake on DOD's part. It's astounding to me that these cases have
been pending for so long and nobody came up with a contingency plan."

To avoid ferrying prisoners and government lawyers to federal courts across the
country, as might be required, Pentagon and Justice Department officials said
they have discussed moving all detainees to a military prison in a conservative
judicial district within the United States to enable the consolidation of all
the proceedings in one court. They said possible locations could be Fort
Leavenworth, Kan., where there is an Army base with a military prison, or
Charleston. S.C., home of the Charleston Naval Weapons Station, which houses the
Navy brig.

Another option would be to allow prisoners to file for writs of habeas corpus --
a demand for legal justification for their imprisonment -- at a makeshift court
at the base in Cuba. The Supreme Court left open the possibility of such an
option.

Under a third proposal offered Justice Department officials and discussed at a
high-level interagency meeting Tuesday, the administration would ask Congress to
designate one federal court district to try the cases -- most likely Washington,
D.C., or the eastern district of Virginia, whose jurisdiction includes the
Pentagon, a senior administration official said.

The changes could occur as part of a general reorganization of Guantanamo
currently under consideration in which the prison facility would be revamped,
with detainees segregated by the level of threat they are thought to pose, the
senior administration official said.

The administration has faced months of criticism over its prisoner detention
program. Critics contend the issue, combined with the prison abuse scandal in
Iraq and this week's rulings, have undermined the administration's contention
that it could be trusted to offer detainees "full and fair" justice.

"The `trust us' era is over," said Joshua Dratel, a New York attorney who is
representing Australian detainee David Hicks, one of three detainees who was
referred Tuesday to the first military commission proceedings to be held since
World War II.

Justice Department spokesman Mark Corallo challenged the view that legal and
military planners had failed to adequately consider major setbacks by the high
court.

"We obviously were prepared for any outcomes," Corallo said. "The Defense
Department was already providing some amount of process to Guantanamo prisoners.
The court said that is not enough. So now we have to figure exactly what type of
process will satisfy their rulings."

But administration officials apparently guessed wrong on how the high court
would rule.

An internal Justice Department memo reviewed Tuesday by the Los Angeles Times
outlining communications plans in response to high court rulings on the issue
listed two pages of talking points to be used "in case of win," and a page of
talking points to be used "in case of win if some sort of process is required"
-- a partial victory. Yet, there was no category for action in the event of a
broad defeat in the memo, titled "Supreme Court Decision Communications Plan."

Few lawyers inside or outside the government doubted that the high court would
allow the government the right to detain combatants during wartime, as has been
allowed in every major war for two centuries. That option was upheld.

But the memo wrongly predicted an outright win in the case Hamdi vs. Rumsfeld,
involving Yaser Esam Hamdi, a Louisiana-born man of Saudi descent captured in
Afghanistan.

"The DOD/DOJ position on the detention of Hamdi will be decided in our favor as
a clear-cut POW case," the memo said, although Hamdi was not held as a prisoner
of war.

The memo predicted a 5-4 vote in favor of the government in Rasul vs. Bush and
Al Odah vs. United States. Justices in that case, involving 16 Guantanamo
detainees seized in Afghanistan and Pakistan, found in the reverse, voting 6-3
that military prisoners who are not U.S. citizens cannot be held without access
to American courts.

The Justice Department memo assumed that the case of Rumsfeld vs. Padilla,
involving Jose Padilla, a U.S. citizen arrested in Chicago on suspicion of
plotting to explode a radioactive device, was the hardest to win.

"The DOD/DOJ position on Padilla is the most tenuous and the one the court is
most likely to take issue with, given that he has strong ties to the U.S.," the
agency wrote.

The detainee's claims in that case were rejected on technical grounds because
justices said it was filed in the wrong court.

Defense attorneys and government officials predicted that lawyers and human
rights activists would rush to obtain the identities of detainees so they can
file a flurry of so-called next friend petitions on behalf of the friends and
families of detainees.

Because Guantanamo Bay is not within any federal court jurisdiction, prisoners
held there would be allowed to seek redress from any U.S. district court,
officials said.

"We do expect that people will file in every district in the country. The
question is: `Is that within the parameters of the Supreme Court's ruling?"'
said Corallo of the Justice Department. "That's what we've got to figure out --
would we then be forced to respond in 94 different district courts in the courts
in the country?"

A series of court cases on other issues may determine related issues in the next
few years, such as whether Guantanamo prisoners can be exempted from
international law and whether military commissions satisfy constitutional and
international law, as the Bush administration contends.

Ali Hamza Ahamad Sulayman al Bahlul of Yemen, The Pentagon on Tuesday named
officers who will comprise the first commission, which will review the cases of
three Guantanamo prisoners. Retired Army Col. Peter Brownback III was named
presiding officer for the commission, and four other officers were assigned as
commissioners. The defendants will be Hicks of Australia, Ali Hamza Ahamad
Sulayman al Bahlul of Yemen and Ibrahim Ahmed Mahmoud al Qosi of Sudan. No trial
dates were set.

* * *


ABC News Online (Aus) --

June 29, 2004

LAWYERS PLAN SPEEDY HICKS APPEAL

http://www.abc.net.au/news/newsitems/200406/s1142892.htm

Lawyers for Australian David Hicks could launch an appeal against his detention
at Guantanamo Bay in Cuba within two weeks.

The United States Supreme Court ruled overnight that American courts have the
jurisdiction to consider challenges to the legality of the detention of foreign
nationals.

Hicks and fellow Australian Mamdouh Habib have been held at the centre for two
years without legal recourse.

Hicks has recently been charged with conspiracy to commit war crimes, attempted
murder and aiding the enemy but is yet to face court.

Josh Draytell, a member of the US legal team representing Hicks, says his client
is among the Guantanamo Bay detainees best-placed to challenge the legitimacy of
the military commission system he is due to be tried under.

"Not only does he enjoy those fundamental rights that they enjoy but in
addition, because of his being charged, he does have standing to challenge the
commission procedures themselves," Mr Draytell said.

"Those who aren't subject might be considered premature in terms of challenging
the commission itself."

Mr Draytell says the Supreme Court's decision has important implications for
Hicks's military commission.

"It would have to conform to a variety of standards that one could apply,
whether it's one particular standard or a combination of them," he said.

"One is the military justice code, another is international law, another is US
constitutional law and another is a common law concept.

"The commissions don't measure up by any of those standards."
Home trial

Greens Senator Bob Brown says Hicks and Mr Habib should now be brought home to
face court.

Senator Brown says the men should be tried under Australia's judicial system.

"It's a big breakthrough for David Hicks and Mamdouh Habib," Senator Brown said.

"It means they have access to domestic courts, which is what the Greens have
been calling for all the way down the line."

Hicks was told of the court ruling this morning during a monitored conversation
with his father, Terry.

Even though Terry Hicks had previously been warned against discussing legal
matters, this morning he took the risk.

"I thought blow 'em, if they're going to pull the plug, they can pull it," he
said.

"I just said to him the Supreme Court's just handed down - you people can now
come under the jurisdiction of the courts.

"I said, 'what do you think of that?' and he said, 'I can't say anything'."

Terry Hicks says he could sense his son was happy with the result, although he
was not allowed to respond directly to the news.

"Any news would give him hope," he said. "It doesn't matter what it is.

"This would be a good result for David and he realises this.

"He'd already known about the Supreme Court [case] but not the final decision."

* * *


June 29, 2004

STEWART TRIAL BECOMES REAL SLUGFEST

By Patricia Hurtado, Staff Writer

http://www.nynewsday.com/news/local/bronx/nyc-lynn0629,0,7060646.story

The trial of attorney Lynne Stewart has only completed its first week, and
already it has bogged down, as the defense has repeatedly challenged the
government's case.

Testimony was postponed yesterday after a juror became ill. However, hearings
outside the jury's presence were particularly fierce, as the defense attempted
to block or limit prosecution testimony.

Stewart and her co-defendants, Ahmed Abdel Sattar and Mohammad Yousry, are
charged with conspiring to provide material support to the Islamic Group, an
Egyptian-based terrorist organization, by passing messages from Stewart's jailed
client, Sheik Omar Abdel-Rahman.

Prosecutors have argued that because he is the Islamic Group's spiritual leader,
Abdel-Rahman's words could incite supporters to violence.

One particularly fierce battle between lawyers stems from the defense's attempt
to limit the testimony of the government's first witness, Patrick Fitzgerald,
the Manhattan assistant U.S. attorney who prosecuted Abdel-Rahman.

Fitzgerald, now U.S. attorney in Chicago, testified Thursday that he wanted to
launch a criminal investigation after he concluded that Stewart violated federal
prison restrictions limiting the cleric's communication.

Last week, defense lawyers succeeded in convincing U.S. District Court Judge
John Koeltl that Fitzgerald should not explain why he decided to put his
investigation on hold. In a hearing outside the jury's presence, prosecutor
Chris Morvillo told Koeltl that Fitzgerald decided to "stand down" after the FBI
informed him that they were conducting an intelligence probe.

Stewart's lawyer, Michael Tigar, argued that Fitzgerald's reasons were not only
hearsay but would deprive Stewart's right to confront her accusers, in this
case, the unnamed federal agents.

Prosecutor Christopher Morvillo argued the jury should understand the reason for
Fitzgerald's delay, saying, "It's his explanation as to what was in his mind
after the meeting as to why he decided ... to 'stand down,' not the fact that he
did."

Koeltl rejected the government's argument.

A second battle that has erupted concerned the deadly November 1997 attack by
the Islamic Group in Luxor, Egypt, that resulted in the slaying of nearly 60
tourists.

Koeltl earlier ruled the jury could hear about the incident, and prosecutors
told jurors that a survivor of the attack would testify he heard other tourists
pleading for their lives, including a man who begged his attacker, "Kill me and
not my wife."

Yousry's lawyer, David Ruhnke, argued the testimony was inflammatory and
proposed the jury could instead hear a synopsis of his testimony.

"The probative value of it is virtually nil to what the government is trying to
prove," Ruhnke argued.

Prosecutor Anthony Barkow disagreed, saying, "We think it is appropriate, given
how horrible the Luxor incident is, to have some evidence ... that people were
being systematically killed. So the testimony is necessarily going to have
something that is terrible and powerful."

Koeltl eventually ruled against the government and determined that the witness
could "generically" describe the attack but could not quote "the precise words"
of the man pleading for his wife's life.

The case is scheduled to resume today.

* * *


Jun 28, 2004
COURT: FOREIGN TERROR SUSPECTS CAN USE U.S. COURTS

http://www.reuters.com/newsArticle.jhtml;jsessionid=
BZC1REJC1KFD4CRBAEOCFFA?type=topNews&storyID=5531395

WASHINGTON (Reuters) - The U.S. Supreme Court ruled on Monday that foreign
terrorism suspects at a U.S. military base at Guantanamo Bay in Cuba can use the
American legal system to challenge their detention, a major defeat for President
Bush.

By a 6-3 vote, the justices ruled that American courts do have jurisdiction to
consider the claims of the prisoners who say in their lawsuits they are being
held illegally in violation of their rights.

The ruling did not address the merits of the claims, but allowed the prisoners
to pursue their lawsuits, which lower courts had dismissed.

Justice John Paul Stevens said for the majority that U.S. courts have
jurisdiction to consider challenges to the legality of the detention of foreign
nationals captured abroad in connection with hostilities and incarcerated at
Guantanamo Bay.

The justices overturned a U.S. appeals court ruling that dismissed the lawsuits
on the grounds that the military base was outside U.S. sovereign territory and
that writs of habeas corpus were unavailable to foreign nationals outside U.S.
territory.

Bush's policies have been attacked by civil liberties and human rights groups,
especially after the Iraqi prisoner abuse scandal and questions on whether the
U.S. government has sought to condone torture during interrogations of terror
suspects.

About 595 foreign nationals, designated "enemy combatants," are being held at
the base in Cuba as suspected al Qaeda members or Taliban fighters.

Most of those at Guantanamo were seized during the U.S.-led campaign against the
Taliban government in Afghanistan and against Osama bin Laden's al Qaeda network
after the Sept. 11, 2001, attacks on America. The first detainees arrived in
January 2002.

All but a handful of those at the base are being held without being charged,
without access to lawyers or their families and without access to courts or a
proceeding of any kind.

* * *


June 28, 2004

THERE IS NO JUSTIFICATION FOR TORTURE

By Senator Patrick Leahy (D-VT)

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2004/06/28/ther
e_is_no_justification_for_torture/

IN THE WEEKS since the abuses at Abu Ghraib prison were revealed, evidence
continues to seep out of similar mistreatment of prisoners in other US military
detention centers in Iraq, Afghanistan, and Guantanamo Bay. Top White House and
Pentagon officials have sought to deny any pattern of illegality in the
interrogation and treatment of prisoners in US custody. They insist that members
of Al Qaeda and the Taliban fall outside the protections of the Geneva
Conventions. The reach of the Geneva Conventions is debatable. What is not
debatable is that the Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment, which the United States signed and ratified,
makes no distinction between American citizens, Iraqis, or anyone else. It
unequivocally forbids the use of torture or cruel, inhuman, or degrading
treatment, anywhere, at any time, under any circumstances. So does US law. So
does our military's manual for intelligence interrogation.

Yet we now know that the White House and the Pentagon were actively working to
circumvent the law. Guidelines for interrogating prisoners were applied
routinely in multiple locations in ways that were illegal.

It is also clear that US officials knew the law was being violated and for
months, possibly years, did virtually nothing about it.

I first wrote to the White House, the Pentagon, and the CIA last June about the
reported torture of Afghan prisoners by US interrogators.

Two prisoners had died during interrogation. Others described being forced to
stand naked in a cold room for days without interruption, with their arms raised
and chained to the ceiling and their swollen ankles shackled. They said they
were denied sleep and forced to wear hoods that cut off the supply of oxygen.

My letter, and subsequent letters, were either ignored or received responses
which, in retrospect, bore no resemblance to the facts. Sixteen months later,
the investigations of those deaths, ruled homicides, remain incomplete.

Prisoners who are suspected of having killed or attempted to kill Americans do
not deserve comforts. But the use of torture undermines our global efforts
against terrorism and is beneath our nation.

There are many victims of this policy. First are the Iraqis, Afghans, and other
detainees, some innocent of any crime who were tortured or subjected to cruel
treatment. We now know that many other Iraqis and Afghans died in US custody,
and many of those deaths were never investigated.

Second are our own soldiers, who overwhelmingly perform their duties with honor
and courage, and who now have been unfairly tarnished.

And then there is America itself. The damage this administration has caused to
our credibility will take years to repair.

The individuals who committed those acts are being punished, as they must be.
But what of those who gave the orders or set the tone or looked the other way?
What of the White House and Pentagon lawyers who tried to justify the use of
torture? And what of the president? Last March, referring to the capture of US
soldiers by Iraqi forces, President Bush said, "We expect them to be treated
humanely, just like we'll treat any prisoner of theirs that we capture humanely.
If not, the people who mistreat the prisoners will be treated as war criminals."
At the same time, the president's lawyer called the Geneva Conventions
"obsolete."

The law makes no exception for torture. The torture of criminal suspects
flagrantly violates the presumption of innocence on which our criminal
jurisprudence is based, and confessions extracted through torture are
notoriously unreliable.

Once exceptions are made for torture it is impossible to draw the line, and more
troubling is who would be in charge of drawing it. If torture is justified in
Afghanistan, why is it not justified in China, or Syria, or Argentina, or Miami?
If torture is justified to obtain information from a suspected terrorist, why
not from his wife or children? Some argue it is a new world since the attacks of
Sept. 11. To some degree, they are right, which is why we have reacted with
tougher laws and better tools to fight this war. But do we really want to usher
in a new world that justifies inhumane, immoral and cruel treatment as any means
to an end? We must reject the dangerous notion that torture can be legally
justified.

[ Democrat Patrick Leahy is a US senator from Vermont. ]

* * *


Pittsburgh Post-Gazette:

June 27, 2004

DEBATE CONTINUES OVER RULES U.S. USES FOR INTERROGATIONS

By Lillian Thomas, Pittsburgh Post-Gazette

http://www.post-gazette.com/pg/04179/337670.stm

While U.S. forces have waged the war on terror around the world since the Sept.
11, 2001, attacks, a war of words has been just as fiercely fought on a paper
battleground by lawyers and officials attempting to parse military law.

In a series of memos leaked to the press over the last several months and a raft
of documents declassified by the White House last week, a picture emerges of an
effort to redefine long-held rules and principles of military law.

Ruth Wedgwood, a professor of international law at Johns Hopkins University,
says re-examining such principles is logical in the face of radical changes in
warfare, with the advent of terrorists bent on destruction of civilian life and
property,

The treaties that address warfare and national military codes generally assume
the involvement of two parties and assume the parties are nation states. When
one side isn't a nation state and isn't playing by the rules, those rules might
need to be reconsidered.

For example, she said, if terrorism suspects were not defined as "unlawful
combatants," it wouldn't be possible to prosecute them for destroying military
targets, since it is lawful for a soldier to do so.

But reshaping the rules while the war is going on can be risky, another military
law specialist said.

"In the 19th century the Germans had a concept called 'krieg raison.' They said
we will abide by the laws of war unless they become too confining," said Gary
Solis, an adjunct professor of law at Georgetown University Law Center. "It led
to a policy where essentially anything went, if you had to do it to win. We're
hearing echoes of this in these documents."

The effort has been controversial even within the administration. The Washington
Post reported that senior military lawyers and a State Department legal adviser
wrote strongly worded dissents to the proposals for handling detainees from
Afgthanistan. Their common theme was that tough interrogation techniques being
advocated by some Defense Department officials would contravene longstanding
military practice and provoke public criticism.

Solis, who served in Vietnam as a Marine and specializes in the law of war, said
that a number of the recently released documents represent legal end-runs around
not just the Geneva Convention and other international treaties, but also U.S.
military law and long-held customary laws of war. He said he was "dumbstruck" at
some of the legal arguments made in the documents.

Even in the case of a Feb. 7, 2002 memo touted by the White House as evidence
that President Bush ordered that the Geneva Conventions be followed in the case
of Taliban and al-Qaida detainees, there are phrases that lay the groundwork for
ignoring Geneva.

The White House memo is headed "Subject: humane treatment of al-Qaida and
Taliban detainees." It asserts that the detainees did not qualify as prisoners
of war and thus were not entitled to POW status, but that in the case of the
Taliban in Afghanistan, the president would not exercise his authority to
suspend adherence to the Geneva Conventions.

The catch was that he reserved the right to do so in the future.

In addition, the memo introduces another caveat: " . . . as a matter of policy,
the United States military forces will continue to treat detainees humanely and,
to the extent appropriate and consistent with military necessity, in a manner
consistent with the principles of Geneva," the memo states.

"It is just mind-boggling that they would write that," said Solis. "Military
necessity is supposed to be a limitation on military acts. Here it's being used
as an excuse for military actions."

The term "military necessity" is defined in the Department of Army manual that
applies to all the services "as that principle which justifies those measures
not forbidden by international law which are indispensable for securing the
complete submission of the enemy as soon as possible."

According to Solis, the White House is trying to turn that definition on its
head, saying that even measures that are forbidden by international law are
permissible.

The White House , through an official, argued last week that "the logic of
Geneva applies to reciprocal behavior. ...[and] to protect terrorists when they
ignore the law is to give incentive to continue ignoring that law."

That is a core issue of terror warfare, said Wedgwood.

"One of the challenges is that under traditional Geneva, there is neither a
moral nor a legal duty on the part of the captured person to give information."

Nations encouraged their soldiers to give nothing more than name, rank and
serial number, and though interrogators obviously tried to get more information
out of captured soldiers, there was a fundamental view that to be loyal and not
talk was honorable, she said.

In the case of 21st century war, though, "if he's a member of al Qaida, plotting
the death of civilians, shouldn't he have a legal duty to give up information?"
said Wedgwood.

But that doesn't mean, she said, "that you can enforce that duty with pain and
violence."

"There are to my view some rock bottom principles. Being an unlawful combatant
doesn't denude you of certain basic entitlements: [that doesn't mean you're
entitled to] a lawyer! But [it does mean you're entitled] to be treated
humanely."

White House counsel Alberto R. Gonzales said last week that Bush never
considered more aggressive options set out by administration lawyers, including
those in the August 2002 Justice Department memo that said that interrogation of
detainees can involve "cruel, inhuman or degrading" acts without violating U.S.
and international laws prohibiting torture.

Solis argued that what he called "the weasel words ... the insinuations that you
need not be concerned about the torture convention, that our definition of
torture is so perverted that nothing short of permanent crippling would qualify"
amount to an attempt to undermine long-held law and custom.

[ Lillian Thomas can be reached at lthomas@post-gazette.com or 412-263-3566. ]

* * *


Seattle Post-Intelligencer / AP --

June 24, 2004

EX-DOJ OLC LAWYER JOHN YOO DEFENDS ADVICE

By Matt Kelley, Associated Press Writer

http://seattlepi.nwsource.com/national/apwashington_story.asp?
category=1152&slug=Prison%20Abuse%20Lawyer

WASHINGTON (AP) -- A former Justice Department lawyer says he and his colleagues
were trying to explain law - and not set policy - when they wrote that
international agreements banning mistreatment of prisoners of war do not apply
to the Taliban or al-Qaida.

In a memo to the Pentagon's top lawyer in January 2002, John Yoo laid out the
legal argument that because neither the Taliban nor al-Qaida is a legitimate
government and both violated the laws of war, their prisoners are not protected
by the Geneva Conventions.

Yoo's advice was among the stack of Justice Department opinions the White House
relied on in declaring that prisoners at Guantanamo Bay, Cuba, are "illegal
combatants" and not entitled to protection under international laws banning
torture or coercion of POWs. Bush ordered that Taliban and al-Qaida prisoners be
treated humanely and "consistent with the principles" of the Geneva Conventions,
"to the extent appropriate and consistent with military necessity."

Critics say memos like Yoo's created an ambiguous environment where military and
civilian interrogators may have thought that rules against torture and other
mistreatment did not have to be followed.

Yoo said he and other Justice Department lawyers were merely trying to tell Bush
what the law means.

"There's a real confusion over law versus policy," Yoo said after a conference
at the conservative American Enterprise Institute, where he is a visiting
scholar.

"Just because the law allows the government to do something does not mean it's
the policy to do so. The policy in this case is to treat detainees humanely.
Nothing approaching torture was ever approved for Guantanamo."

At the conference, a Red Cross lawyer argued that the Geneva Conventions and
other laws of war apply to al-Qaida and the Taliban, regardless of whether they
are governments or have themselves violated the laws. Gabor Rona said terrorists
should be treated as civilian prisoners under the Geneva Conventions, meaning
they must be free from "physical or moral coercion."

"If you do not qualify for prisoner of war status, that does not mean you are
not covered by the law of war," Rona said.

Treating terrorist prisoners as civilians under the Geneva Conventions has
advantages, Rona said. For example, civilians may be prosecuted merely for
participating in armed conflict, while members of a country's military may not
be, he said.

The White House released a stack of memos about treatment of prisoners this week
to blunt accusations that top officials tolerated or approved interrogation
methods amounting to torture. Bush said he never ordered torture.

One of the most controversial arguments was made by then-Assistant Attorney
General Jay S. Bybee, now a justice on the 9th U.S. Circuit Court of Appeals.
Bybee argued that a president may suspend the Geneva Conventions and offered
what some experts called a narrow definition of torture: Actions calculated to
cause pain akin to organ failure or death.

Bybee relied on the U.S. anti-torture law, which says torture is any action
"specifically intended to inflict severe mental pain or suffering."

Yoo said Bybee's interpretation was correct.

"It's not the Bush administration's definition, it's Congress' definition.
That's the definition set out in the statute," said Yoo, a former deputy
assistant attorney general.

Bybee's memo also laid out several possible legal defenses for anyone charged
with torture or war crimes, saying defendants could argue violent methods were
necessary to prevent attacks which could kill thousands.

That's a radical departure from past U.S. policy, said Ruth Wedgwood, the
special representative to the U.N. on children and war.

"We've never made the claim you could legally use force to gain information from
someone," said Wedgwood, a Johns Hopkins University professor who also spoke at
the conference.

Following the Geneva Conventions also would preserve the moral high ground for
the United States, Rona said.

"How do you reach your goals in the war on terror by treating them the way you
expect them to treat you?" Rona asked. "Mistreatment of individuals in detention
does not help in the cause against terrorism."

* * *


The Guardian (UK) --

June 21, 2004

JUDGE DECLARES ABU GHRAIB A CRIME SCENE

By Fisnik Abrashi and Jim Krane, Associated Press Writers

http://www.guardian.co.uk/worldlatest/story/0,1280,-4227670,00.html

BAGHDAD, Iraq (AP) - A military judge on Monday declared the notorious Abu
Ghraib prison a crime scene that cannot be demolished as President Bush had
offered. He also refused to move the trial of a soldier accused of abusing
inmates.

Col. James Pohl issued the decisions at a hearing for Sgt. Javal S. Davis, one
of seven soldiers charged in the case. Another, Spc. Jeremy C. Sivits, pleaded
guilty last month and was sentenced to a year in prison.

Pohl was also to hear motions Monday in the cases against two other defendants -
Spc. Charles A. Graner Jr. and Staff Sgt. Ivan L. ``Chip'' Frederick II.

The judge turned down motions by Davis' lawyers to move the trial out of Iraq
and to order a new Article 32 hearing, the military equivalent of a grand jury
proceeding.

Pohl declared the prison a crime scene and said it could not be destroyed prior
to a verdict. President Bush had offered to dismantle the facility to help
remove the stain of torture and abuse from the new Iraq; but Iraqi officials
have declined, calling it a waste of resources. Saddam Hussein used Abu Ghraib
to torture and murder his opponents.

Davis' civilian lawyer, Paul Bergrin, won permission to seek testimony from the
top U.S. general in Iraq, Lt. Gen. Ricardo Sanchez, and from the chief of the
U.S. Central Command, Gen. John Abizaid.

But the judge turned down a request to seek testimony from higher-ranking
witnesses, including Defense Secretary Donald H. Rumsfeld. Pohl left open the
possibility of calling other senior figures if the defense could show their
testimony was relevant.

Lawyers for the soldiers have long maintained their clients were simply
following orders to treat Iraqi detainees harshly and that the instructions came
from the highest levels of the U.S. government.

Bergrin told reporters during a recess that he thought the hearing had gone
well. He said lower-echelon troops at the prison had worked under intense
pressure from their commanders and the CIA and had used nudity and other
``Israeli methods'' considered effective against Arab prisoners.

The hearings took place in the Baghdad Convention Center in the heavily guarded
Green Zone, the nerve center of the American-run occupation of Iraq. U.S.
authorities hope the proceedings will convince Iraqis that the United States
does not tolerate abuses of civil liberties.

Davis' military lawyer, Capt. Scott Dunn, failed to win an order to reopen the
Article 32 investigation, which would have in effect dismissed the current
charges. Dunn had argued that the military neglected to make a witness available
during the Article 32 proceedings, which ended with a recommendation for court
martial.

However, the judge granted a request by Bergrin to declassify all parts of an
Army investigation report conducted by Maj. Gen. Antonio Taguba.

On May 19, Sivits became the first soldier convicted and sentenced in the
scandal. Sivits pleaded guilty and received the maximum penalty of one year in
prison, forfeiture of pay, reduction in rank to private and a bad conduct
discharge.

The three defendants who appeared in court Monday face more serious charges and
could receive long prison terms.

As the session began, Dunn said that while he understands security conditions in
Iraq make it difficult to provide access to some witnesses, his client still has
a right to confront his accusers. Dunn wanted to question an inmate at Abu
Ghraib.

``We couldn't go to him. They wouldn't bring him to us. They said it was
impossible to obtain any telephone testimony. We object to not obtaining his
testimony at all,'' Dunn said.

The Army has argued that a sharp rise in violence in April, including the siege
of nearby Fallujah, made the area around Abu Ghraib too dangerous.

Bergrin said last week that he would argue for a dismissal of charges because of
``improper command influence'' extending to President Bush.

Bergrin alleged that senior U.S. military officers sanctioned harsh treatment of
detainees at Abu Ghraib prison and said he would seek evidence that Davis was
simply following orders.

Frederick's civilian lawyer, Gary Myers, has said he will ask the judge for an
investigator. Myers also said he would request a new Article 32 hearing because
his client was not allowed to gather evidence or interrogate witnesses at his
first session.

The seven soldiers charged in the case were from the 372nd Military Police
Company, an Army Reserve unit from Cresaptown, Md. The abuse scandal broke in
April when CBS' ``60 Minutes II'' aired photographs of hooded and naked
prisoners. Since then other photographs showing sexual humiliation have
surfaced, generating worldwide criticism of the United States and undercutting
American moral authority abroad.

A separate hearing for another soldier charged in the scandal, Pfc. Lynndie
England, 21, was scheduled for Tuesday at Fort Bragg, N.C., where she is now
stationed.

The military has not decided whether to refer the cases against two others -
Spc. Sabrina Harman and Pfc. Megan Ambuhl - to courts martial.

Coalition officials said the judge wanted to complete all three hearings Monday
but that the proceedings could last for three days.

Graner, of Uniontown, Pa., has been accused of jumping on several detainees as
they were piled on the floor. He is also charged with stomping the hands and
bare feet of several prisoners and punching one inmate in the temple so hard
that he lost consciousness.

He also faces adultery charges for having sex with England last October. He
could receive 24 years in jail, forfeiture of pay, reduction in rank, and a
dishonorable discharge.

Frederick, of Buckingham, Va., is accused of forcing prisoners to masturbate,
placing naked detainees into a human pyramid and placing wires on a detainee's
hands, telling him he would be electrocuted if he fell off a box on which he was
forced to stand.

He faces a maximum punishment of 16 years in confinement, forfeiture of pay,
reduction of rank, and a dishonorable discharge.

Davis, of Maryland, is accused of maltreating prisoners, stomping on their hands
and feet and putting detainees in a pile on the floor to be assaulted by other
soldiers. He faces maximum of eight and a half years in jail, forfeiture of pay,
reduction in rank and a dishonorable discharge.

* * *


Stars and Stripes:

June 20, 2004

ANALYSIS: SOME SEE RISK TO U.S. TROOPS FROM
DEFENSE DEPARTMENT'S HIDING OF DETAINEE

By Sandra Jontz, Stars and Stripes

http://www.estripes.com/article.asp?section=104&article=22884

ARLINGTON, Va. -- The Defense Department’s action of hiding a detainee in Iraq
has jeopardized the lives of U.S. servicemembers, especially those who might be
taken prisoner of war, a military law expert said.

"This involves the golden rule of reciprocity," said Eugene Fidell, involved in
military law for 35 years. "How would we like it if our people fell into the
wrong hands ... and were kept incommunicado and off the books?"

Defense Secretary Donald Rumsfeld admitted Thursday that he approved a request
by CIA Director George Tenet to secretly hold a highly valued suspected
terrorist in a U.S.-run prison in Iraq.

"I found the secretary’s disclosure shocking," Fidell said.

But the terrorists already aren’t playing by the rules, said Daniel Goure, vice
president at the Lexington Institute think tank.

"They’re slaughtering civilians, blowing up their own. I’m not sure why we have
this fantasy that if we stick by the rules, so will they," he said. "They
already don’t adhere to the rules. I’m not worried about our servicemembers in
the hands of ... terrorists. That risk is already extraordinarily high."

However, holding prisoners in secret is inconsistent both with rules set under
the Geneva Conventions and with repeated statements by Rumsfeld and other
Pentagon officials, who have maintained that all prisoners in Iraq will be
afforded Geneva Conventions status, Goure said.

"There is reason to be concerned that this type of action might erode the
sanctity of the Geneva Conventions and, therefore, in future conflicts, one
could argue it could increase risk to troops," Goure said.

The U.S. military should have promptly registered the prisoner, said Dan
Dell’Orto, the Pentagon’s principal deputy general counsel.

"The Red Cross serial number should have been registered soon, relatively soon,"
he said Thursday at Rumsfeld’s press briefing.

Even if they had registered this detainee, the military could have denied an
ICRC member access to interviews and inspection if doing so "might interrupt...
or disturb your ability to get information you need to get, particularly there
and on the ground, where we had a terrorist of a known terrorist organization,
of high rank," Dell’Orto said.

When asked if the Pentagon plans to suspend the practice in light of Dell’Orto’s
comments, a Pentagon spokesman said: "That’s not something we’re ready to talk
about yet."

To rectify the situation, the Pentagon "has to abandon this policy," Fidell
said. "The International Committee of the Red Cross attempts to work with great
discretion. That is its hallmark, and is a policy that has served the ICRC very
well and has served the interests of the United States.

"Where the books are being cooked, basically by the secret detentions,
frustrates the ICRC’s ability to perform its function," said Fidell, who also is
president and co-founder of the nonpartisan National Institute of Military
Justice.

For this article, he offered his own views. NIMJ has not taken a position on the
issue.

The NIMJ, a nonprofit organization based in Washington that has many members who
served on active duty as judges and lawyers, scrutinizes the military justice
system and, when it deems necessary and appropriate, makes recommendations for
change to Congress, the Pentagon or the Court of Appeals for Armed Forces,
Fidell said.

Fidell also finds worrisome that there may be other cases.

Rumsfeld acknowledged to reporters that other prisoners have been held secretly.

"There are instances where that occurs," he said.

Rumsfeld said the prisoner has not been mistreated, and distanced the case from
the Abu Ghraib prison scandal.

"He has been treated humanely," Rumsfeld said. "There’s no implication of any
problem. He was not at Abu Ghraib. He is not there now. He has never been there,
to my knowledge. There’s no question at all about whether or not he’s received
humane treatment."

* * *


Sacramento Bee:

June 17, 2004

JUDGE DENIES BID TO TOSS SPY CASE

By Denny Walsh and Pamela Martineau, Bee Staff Writers

http://www.sacbee.com/content/news/courts_legal/story/9681887p-10605072c.html

TRAVIS AIR FORCE BASE - The government's espionage case against Ahmad I. Al
Halabi withstood a significant legal challenge Wednesday when a military judge
denied a defense motion to throw the case out based on alleged misconduct by Air
Force investigators and prosecutors.

Saying mistakes were made in the investigation of Al Halabi, Col. Barbara Brand
nonetheless ruled that prosecutors did not engage in any "unconscionable
conduct" warranting dismissal.

"There is a lack of any indication of malice," Brand said, adding that, when
mistakes were realized, "clarifications and adjustments" were made to avoid
prejudicial error.

She said actions of the Air Force Office of Special Investigations that have
been targeted by defense lawyers "go to the weight of the evidence, not its
admissibility." In other words, the military jury will make the final decision
on the quality of that evidence claimed by defense lawyers to be tainted.

The case has been rocked in recent weeks by allegations that the lead
investigator for the military provided false and misleading testimony in his
effort to beef up the case against Al Halabi and that the heart of the
government's case - a box Al Halabi mailed to himself at Travis that allegedly
contained classified documents - was obtained in an illegal search.

In one of the most damaging claims, the defense presented testimony from a
former member of the investigative team who said agents mishandled the contents
of that box during a beer party, then tried to cover up their behavior.

Referring to the defense lawyers' ongoing complaint that prosecutors are
withholding evidence from them, Brand warned Lt. Col. Bryan Wheeler, the lead
prosecutor, and his staff that "there better be complete and full disclosure."

Brand also made a preliminary ruling that specific instances of alleged
misconduct by OSI and prosecutors will not be mentioned during Al Halabi's trial
without her consent. She directed prosecutors to provide copies of the motion to
dismiss and supporting documents to the staff judge advocate at Travis, who is
to coordinate a review of the material with the Air Force Legal Services Agency
Office of Professional Responsibility. The agency, which oversees conduct of Air
Force lawyers, is in Washington, D.C.

In a written statement distributed to reporters after the morning court session,
civilian defense attorney Donald Rehkopf said Brand had "ordered a formal ethics
investigation" by the oversight agency, which "should be profoundly disturbing
to the senior leadership of the Air Force."

When the hearing resumed in the afternoon, Wheeler presented the statement to
Brand and told her, "We believe that Mr. Rehkopf's characterization of what
happened this morning is, to put it nicely, inaccurate."

An obviously irritated Brand agreed, and reminded Rehkopf she did not order an
investigation and directed only that the staff judge advocate "coordinate" with
the oversight agency on whatever action, if any, is deemed appropriate.

"It is standard procedure within the Air Force Judge Advocate General's Corps to
submit any allegation of misconduct made by any party for such a review,"
spokeswoman Lt. Col. Jennifer Cassidy said after court.

Cassidy also sought to clarify the status of Tech. Sgt. Marc A. Palmosina, who
has been described by Rehkopf as the "supervisor" of the OSI team that
investigated Al Halabi.

It was learned Tuesday that Palmosina was charged three weeks ago with multiple
counts of raping and sodomizing children and failing to safeguard classified
documents.

"The charges brought against an OSI agent who was briefly associated with this
case are completely unrelated to the Al Halabi case," Cassidy said. "That agent
was never the 'supervising special agent' in this case, and had only limited
involvement."

Al Halabi, a 25-year-old Syrian national and naturalized U.S. citizen, was
pulled off his duties as a Travis supply clerk in 2002 and dispatched to the
Navy base at Guantánamo Bay, Cuba, to act as a translator for suspected
terrorists being held there.

The senior airman is accused of attempting to deliver letters from detainees and
secret documents concerning intelligence gathering to Syria. If convicted of
espionage, he could be sentenced to life in prison.

He was arrested in Florida July 23 - the day he left Cuba - while traveling to
Syria to get married, and was incarcerated for nearly 10 months. Exasperated
with the pace of the court-martial and the proliferating allegations of
government misconduct, Brand ordered him released last month. He is back at his
old job as a supply clerk, confined to Travis.

Brand's rejection Wednesday of the dismissal motion was a significant setback
for defense attorneys. Uncharacteristically, Rehkopf refused to comment to the
press about the ruling.

In arguing for the dismissal, he said the mistakes by investigators and
prosecutors placed a "large question mark over everything that went on in the
case."

Brand found, however, "There is no requirement that a case be perfected at an
Article 32," referring to a military proceeding where a hearing officer
determines whether a defendant should be referred for court martial.

She did, however, say it appears that Lance Wega, the lead OSI agent in the
investigation, "testified falsely or withheld evidence" at last year's Article
32 hearing when he testified there is evidence the airman "could have" sent e-
mails containing classified material to U.S. enemies. The defense insists that,
prior to that testimony, Wega had been told by a computer analyst there is "no
evidence" Al Halabi sent such e-mails.

Wega took the witness stand Wednesday and was grilled by defense attorney Major
Kim London on the matter. He said at the time of the Article 32 hearing,
analysts had not yet ruled out the possibility Al Halabi had engaged in such
activity.

Wednesday's hearing was cut short when a dispute broke out between prosecutors
and defense counsel over whether two witnesses whose statements are classified
secret may be identified in open court. Wega will be back on the stand today.

The trial phase of the court-martial is expected to begin in late summer.

[ Denny Walsh can be reached at (916) 321-1189 or dwalsh@sacbee.com ]

* * *


San Jose Mercury News --

June 16, 2004

JUDGE ORDERS ETHICS INVESTIGATION OF AL HALABI PROSECUTOR

By Kim Curtis, Associated Press

http://www.mercurynews.com/mld/mercurynews/news/breaking_news/8939870.htm

SAN FRANCISCO (AP) - A military judge Wednesday asked that misconduct
allegations involving the prosecution in the espionage trial of an Arabic
translator be reviewed by Air Force ethics investigators, but she declined to
dismiss the court-martial case.

Defense lawyers accused U.S. Air Force Capt. Dennis Kaw of refusing to let a
witness correct her testimony and telling her to keep the mistake to herself.

"That may not have been the best decision," the judge, Col. Barbara Brand,
acknowledged Wednesday. But she found no evidence of malice, and said the
incident would have no effect on the trial of Senior Airman Ahmad Al Halabi,
since the testimony has since been corrected.

Al Halabi, 25, faces 17 criminal counts, including attempted espionage, lying
and misconduct. If convicted of the most serious charges, he could be sentenced
to life in a military prison. The naturalized American, who was born in Syria,
is accused of trying to deliver messages from detainees at Guantanamo Bay, Cuba
to his homeland. He was arrested in July as he was headed to Syria to marry his
girlfriend.

Brand, who is overseeing Al Halabi's court-martial at Travis Air Force Base,
directed the lead prosecutor to forward the defense's complaint and any evidence
of alleged misconduct to the Staff Judge Advocate at Travis and the Office of
Professional Responsibility for Air Force lawyers in Washington, D.C.

Al Halabi's civilian lawyer, Donald Rehkopf Jr., said that "in plain language,
the military judge ordered a formal ethics investigation." An Air Force
spokeswoman, Lt. Col. Jennifer Cassidy, objected to that characterization,
noting that the ethics investigators in Washington, not the judge, "will
determine what action is necessary, if any."

At any rate, Rehkopf called the judge's decision "additional evidence of the
problems in the Al Halabi case."

The alleged misconduct included complaints from Suzan Sultan, a former Air Force
translator who testified Tuesday that she was brought in to help translate
evidence because as a native Arabic speaker born in Egypt, said had knowledge of
the language as well as Arabic culture.

She translated letters, e-mails and other materials without finding anything
extremist, which seemed disappointing to Air Force investigators, Sultan
testified.

Sultan also testified at Al Halabi's preliminary hearing last year where, she
now says, she made a mistake. She said she misread a letter from the Syrian
government to the airman, thinking the Syrians had given Al Halabi permission to
visit another Middle Eastern country, Qatar.

Sultan later realized that Qatar also could mean "homeland," meaning that Al
Halabi could have been telling the truth when he said he merely wanted to go to
Syria to get married. Sultan said prosecutors refused to allow her to admit she
made the mistake. She recently contacted Rehkopf because she said her conscience
was bothering her.

Sultan said on the stand that she immediately told Kaw about her mistake.

"I told him in the context of that letter Qatar didn't fit and the true meaning
of the word was homeland," Sultan said, adding that he told her not to worry,
but don't share it with defense lawyers.

Rehkopf also revealed Tuesday that an Air Force investigator was charged last
month with rape, sodomy, fondling girls and mishandling classified material.

Tech. Sgt. Marc Palmosina, who assisted the lead investigator in Al Halabi's
case, was charged May 26 with the crimes near Travis and near Kadena Air Base in
Japan as long ago as 1998. It's unclear how many victims were involved, Cassidy
said.

Palmosina also is accused of mishandling classified documents in 2001 and 2003.
Cassidy said the investigation into these crimes is ongoing, and that the
charges have nothing to do with the case against Al Halabi.

Palmosina's defense lawyer was out of town and unavailable for comment
Wednesday.

"The fact that two key players in the prosecution of the allegations against
Senior Airman Al Halabi are now themselves the subjects of investigations,
emphasizes that our concerns have substance and that our prior complaints should
have been taken seriously," Rehkopf said Wednesday.

Palmosina helped the lead investigator in the case, Special Agent Lance Wega.
Rehkopf alleges that Wega and agents with the Air Force's Office of Special
Investigations drank beer, failed to wear gloves and rifled through the contents
of a box seized as evidence from Al Halabi, then repacked the box to "pretend
and mislead" that they were following protocol.

The judge on Wednesday acknowledged "the OSI made a mistake."

Kaw, who refused to answer reporters' questions about the accusations against
him, said Tuesday in court that recent revelations only showed how well the
military justice system works.

* * *


June 16, 2004

JUDGE REFUSES TO DROP ESPIONAGE CHARGES AGAINST AIRMAN

By Scott Marshall

http://www.contracostatimes.com/mld/cctimes/news/8938434.htm

TRAVIS AIR FORCE BASE - An air force judge refused to dismiss the troubled
espionage case against a Syrian-American airman today, ruling that investigators
were not acting with malice, even if they made mistakes in their probe.

But the judge, Col. Barbara Brand, did order prosecutors to forward allegations
of misconduct up the Air Force chain of command for review by a committee that
handles complaints about professional responsibility and ethics.

Testimony resumes this afternoon in a pretrial hearing of the court martial of
Senior Airman Ahmad I. Al Halabi, 25, a naturalized citizen charged with
attempted espionage stemming from his work as a linguist at the U.S. Navy Base
at Guantanamo Bay, Cuba.

More than 600 suspected Taliban and terrorist suspects are being held at the
prison, and Al Halabi translated documents for interrogators.

Also today, the Brand ruled that defense attorneys will be barred from
mentioning allegations of prosecutorial misconduct at Al Halabi's trial, which
is expected to begin in August. That decision is subject to reconsideration,
Brand ruled.

This afternoon, she will consider a defense request to suppress any evidence
investigators gleaned from a box that Al Halabi mailed to himself from
Guantanamo Bay.

Defense lawyers contend that investigators illegally seized the box, and one of
three allegations of misconduct centers on how they later handled the box.

Brand found today that "there was beer drinking" while investigators of the Air
Force Office of Special Investigations opened the box, and that they removed
items without wearing gloves and then repacked it, put on gloves and only then
began taking photographs.

Some of the documents were marked "secret," and investigators characterized the
box as "the smoking gun," according to previous testimony.

Former Air Force staff sergeant and Arabic linguist Suzan Sultan, 26, testified
Tuesday that investigators lied to the FBI to cover up their handling of the
box. But Brand ruled their actions were "a mistake."

Brand also ruled that the case need not be perfect in its preliminary stages.

Prosecutors initially charged Al Halabi with attempting to spy for the nation of
Qatar but later changed that to Syria.

Al Halabi was en route to Syria to be married when he was arrested last July 23.
He had two letters from Guantanamo detainees, as well as more than 180 letters
in various states of translation on his laptop computer, when he was arrested.
Defense lawyers say none of the materials was classified.

A native Arabic speaker, Al Halabi faces 17 counts, including attempted
espionage and mishandling classified information. But his lawyers have chipped
away at the case -- he initially was charged with 30 counts -- alleging that the
lead investigator knowingly testified falsely about computer evidence.

Brand ruled today that his testimony was not false.

[ Reach Scott Marshall at smarshall2@cctimes.com ]

* * *


Baltimore Sun --

June 16, 2004

ABU GHRAIB ABUSE THREATENS U.N. VOTE TO RENEW IMMUNITY
Security Council debate expected to draw down U.S. reserve of goodwill

By Mark Matthews, Sun National Staff

http://www.baltimoresun.com/news/nationworld/
bal-te.immunity16jun16,0,409685.story

WASHINGTON - The United States faces an embarrassing international debate over
the Abu Ghraib prison scandal - and a possible diplomatic defeat - at the United
Nations as American officials try to protect U.S. troops in Iraq and elsewhere
from prosecution in the International Criminal Court.

The Bush administration, a fierce opponent of the court, wants the U.N. Security
Council to renew a resolution, first adopted two years ago, that exempts troops
in U.N.-mandated missions from investigation or prosecution by the court.

U.S. diplomats secured the necessary votes in 2002 only by threatening to veto
United Nations peacekeeping missions.

In the wake of the prison abuse scandal this year, achieving passage will be
even more difficult, according to diplomats and human rights groups.

"It's transformed the landscape," said Richard Dicker, an international justice
specialist at Human Rights Watch.

Anger at the United States has been compounded by disclosure of internal Bush
administration legal memos offering narrow definitions of what constitutes
torture and suggesting that U.S. forces could operate outside the bounds of the
international laws of war, rights groups say.

The latest one-year renewal of the resolution expires at the end of June, which
coincidentally is the date when American occupation authorities hand over
political power in Iraq to a new interim Iraqi administration.

A failure by the United States to gain the renewal could represent one of the
first tangible international repercussions of the scandal, which top U.S.
officials admit has badly damaged American credibility and moral authority
overseas.

About 45 nations have demanded a public debate on the resolution.

"I would expect 25, 30, 35 member states to speak about Abu Ghraib at the public
debate," a council diplomat said yesterday. These include representatives of the
European Union, the diplomat said.

Such demands for debate are usually respected, and the council is expected today
to schedule it, possibly for next Monday, the diplomat said.

No date has been set for a new vote, and a senior State Department officials
indicated last night that the Bush administration is unsure about its strategy
for winning votes.

"We'll decide what to do once we know the full lay of the land," the official
said.

Another State Department official said, "We do expect that the technical
rollover will be taken up in due course. It remains a U.S. priority."

The heavy U.S. pressure that might be required to win passage of the resolution
could damage the hard-won goodwill that the United States gained by agreeing to
a series of compromises in the U.N. resolution, adopted June 7, that restores
sovereignty to Iraq, diplomats and rights groups say.

U.S. diplomats tried to win Security Council passage of the renewal in May but
then postponed the vote, apparently for lack of the necessary nine "yes" votes.

China's ambassador to the United Nations, Wang Guangya, citing the prison-abuse
scandal, said in late May that the renewal would send "a very bad signal at this
time."

Exposure of the prison abuse has revived debate over the International Criminal
Court, a permanent war-crimes tribunal based in the Hague that was created by an
international agreement in 1998.

Although former President Clinton signed the treaty establishing the court, the
Bush administration maintains that the United States does not fall under the
court's jurisdiction.

The administration has mounted an aggressive effort over the past two years to
protect American troops and officials from the court's reach, which it says
could subject U.S. citizens to politically motivated investigations and
prosecutions.

Using aid as a lever, it has secured immunity agreements from at least 75
nations.

Several legal experts said a failure to get the renewal would likely have little
practical effect on U.S. troops in Iraq because the ICC would come into play
only in war crimes cases that the United States itself is unable or unwilling to
prosecute. Iraq is not a party to the ICC statute.

As for U.N. peacekeeping troops elsewhere, including Americans, they usually
fall under agreements giving exclusive legal jurisdiction for any crimes they
might commit to the countries that contribute them.

"Countries feel this is a gratuitous show of power on the part of the U.S.,"
said John Washburn, a retired U.S. diplomat and a major supporter of the
International Criminal Court.

But the new U.N. debate arises amid a swirl of investigations and civil claims
involving U.S. troops and contractors accused of abuses in Iraq.

The United States has yet to conclude an agreement with the new Iraqi
authorities that would protect American soldiers from prosecution by Iraqi
courts.

A military official said such an agreement will have to be worked out once a
sovereign Iraqi government takes over July 1.

* * *

Vallejo Times-Herald:

DEFENSE TRIES TO GET TAFB AIRMAN'S ESPIONAGE CHARGES TOSSED OUT

By Brian Hamlin, The Reporter (Vacaville)

http://www.timesheraldonline.com/articles/2004/06/16/news/news06.txt

Charging everything from investigatory incompetence to prosecutorial misconduct,
defense attorneys for a young Travis Air Force Base enlisted man facing
espionage charges hammered the prosecution Tuesday during six hours of pretrial
motions.

Senior Airman Ahmad I. Al Halabi, 25, still faces 17 charges ranging from
espionage and disobeying orders to improperly transporting classified
information, photographing facilities in and around Guantanamo Bay, Cuba,
unauthorized possession of secret documents and credit card fraud.

Appearing before Military Trial Judge Col. Barbara Goodwin Brand at Travis on
Tuesday, civilian defense attorney Donald G. Rehkopf Jr. argued for dismissal of
the case on the grounds that Air Force Office of Special Investigations
personnel had improperly handled evidence in the case.

Rehkopf further charged that prosecutors intentionally had withheld exculpatory
evidence from the defense, including known translation errors in a letter used
to prove supposedly illicit ties between Al Halabi and the Syrian government and
a spurious interpretation of a common Muslim symbol.

"The government did not have a clue as to what was going on," Rehkopf charged.

The letter issue surfaced when former U.S. Air Force staff sergeant and
translator Suzan Sultan told prosecutors that there appeared to be a reference
to the country of Qatar in a letter to Al Halabi from the Syrian government.

This apparently led to the theory that Al Halabi's planned trip to Syria to
marry his fiance last year was a cover for a secret trip to Qatar.

Testifying Tuesday, Sultan said she later realized she'd make a mistake and that
"qatar" could also mean a generic "homeland" in Arabic.

Sultan said she told military prosecutor Capt. Dennis Kaw about the errors, but
he said to "forget about it" without telling defense attorneys.

Rehkopf further charged that OSI investigators had botched a search of a package
in Al Halabi's mail, drinking beer and opening the parcel, handling its contents
without gloves, then closing and reopening the box so they could properly
document their find.

The prosecution took yet another blow Tuesday when it was revealed that one of
the principal OSI investigators on the case, Air Force Tech. Sgt. Marc A.
Palmosina, had been named in a complaint charging him with multiple counts of
child molestation and failing to properly safeguard classified documents.

Responding to defense charges, military prosecutor Lt. Cmdr. (Navy) Robert Crow
said there was no effort to cover up evidence.

"There was no misconduct. There was no malice. There were mistakes," Crow told
the court.

The handling of the mailed package, he said, was not a staged event but an
attempt to correct a mistake.

"There was nothing materially false about that," Crow said. "Nothing shows
deception at that time."

A naturalized American citizen of Syrian birth, Al Halabi was a supply clerk for
Travis' 60th Logistics Readiness Squadron when he was assigned to work as a
translator at the Guantanamo Bay prison for terrorist suspects prior to his
arrest last year.

He originally had faced 30 counts of violating military justice, including one
charge of "aiding the enemy," a capital offense.

That charge, and 12 others, have since been dropped. Al Halabi could, however,
face life imprisonment if convicted on the other 17 counts.

Al Halabi, who has not yet entered a plea, is currently out of confinement and
working as a supply clerk with a civil engineering squadron at Travis.

Al Halabi's pretrial will resume at 9 a.m. today at Travis.

[ Brian Hamlin can be reached at courts@thereporter.com ]

* * *


Fairfield-Suisun Daily Republic:

Wednesday, June 16, 2004

JUDGE EXPECTED TO RULE TODAY ON AIRMAN'S FATE

By Ian Thompson

http://www.dailyrepublic.com/articles/2004/06/16/news/news3.txt

TRAVIS AFB -- Railing on the Air Force for pushing a case that was "poorly
investigated from the beginning," the attorney for a Travis Air Force Base
senior airman accused of spying demanded the case be dismissed Tuesday.

"This case was misrepresented to the authorities," attorney Donald Rehkopf said
of what he called "a cover-up" of any evidence that would exonerate Senior
Airman Ahmad I. Al Halabi.

Military judge Barbara Brand held off making any ruling on the motion until
today when the pre-trial hearing on the fate of the Syrian-born supply clerk
reconvenes.

Rehkopf produced former Air Force Staff Sgt. and Arabic translator Suzan Sultan
who bolstered his case that the OSI mishandled evidence and, along with
prosecutors, obstructed justice by hiding witnesses and evidence.

The prosecution team vigorously denied the charge in a countermotion to suppress
any testimony of prosecutorial misconduct which Brand also has yet to rule on.

"There was no misconduct. There was no malice. There were only mistakes," Navy
Lt. Cmdr. Robert Crow said of the investigation.

Sultan testified that prosecutors had failed to allow her to tell the defense
team about a mistake she had made in translating a letter Al Halabi had written
about going to Syria to get his fiancee that had been used to show Al Halabi was
a flight risk.

She stated she first thought the Arabic word Qatar meant the country of the same
name which investigators testified showed Al Halabi was lying about his
destination. Sultan re-examined her work and realized that Qatar could also mean
homeland, Al Halabi's reference to his birthplace - Syria.

Sultan also testified that the OSI agents under the leadership of Special Agent
lanced Wega did not follow proper procedure in opening a box mailed home by Al
Halabi that was found to hold evidence.

She stated Wega and the agents didn't use gloves, drank beer and failed to
follow evidence protocol, but repacked the box and "staged" a properly done
opening with photos to cover up their mistake.

Crow contended that when the agents realized their mistake of not wearing
gloves, they reprocessed the box professionally.

Al Halabi, 26, is charged with espionage, lying and disobeying orders. He is
suspected of trying to deliver classified documents and e-mails from detainees
at Guantanamo Bay to someone in Syria.

He was picked up on July 23, 2003, at Jacksonville Naval Air Station carrying
180 notes in his computer.

Thirteen of the 30 charges leveled against him have since been dropped. He was
released from custody on May 12 after Brand declared he was not a flight risk.

Al Halabi is back at his job as a supply clerk but is also confined to base and
has to report in daily to the security forces squadron.

[ Reach Ian Thompson at 427-6976 or at ithompson@dailyrepublic.net ]

* * *


June 15, 2004

AL HALABI INVESTIGATOR FACES OWN CRIMINAL CHARGES

By Kim Curtis, Associated Press Writer

http://www.sfgate.com/cgi-bin/article.cgi?f=
/news/archive/2004/06/15/state2136EDT0406.DTL

TRAVIS AIR FORCE BASE, Calif (AP) -- A key investigator in the espionage case
against former Guantanamo interpreter Ahmad Al Halabi now faces criminal charges
himself, including rape, sodomy, fondling girls and mishandling classified
material, the Air Force acknowledged Tuesday.

Tech. Sgt. Marc Palmosina, who assisted the lead investigator in Al Halabi's
case, was charged May 26 with the crimes near Travis and near Kadena Air Base in
Japan as long ago as 1998. It is unclear how many victims were involved, said
Air Force spokeswoman, Lt. Col. Jennifer Cassidy.

Palmosina also is accused of mishandling classified documents in 2001 and 2003.
Cassidy said the investigation into these crimes is ongoing, and that the
charges have nothing to do with the case against Al Halabi, a senior airman.

The charges against Palmosina were revealed Tuesday outside court by Al Halabi's
civilian defense lawyer, Donald Rehkopf Jr., who has accused the Air Force of
sloppy investigative work that resulted in unwarranted charges against his
client. The Air Force later released a document outlining the charges against
Palmosina.

"The case was poorly investigated from the beginning," Rehkopf said during a
court break. "The more we dig into it, the less evidence there is."

In May, Rehkopf filed a motion asking for the dismissal of all charges against
Al Halabi, who faces 17 criminal counts including attempted espionage, lying and
misconduct. If convicted of the most serious charges, he could be sentenced to
life in a military prison. The military judge, Col. Barbara Brand, will likely
rule Wednesday.

Al Halabi, 25, was a supply clerk at the Travis base until the military's demand
for Arabic speakers increased sharply as a result of the war on terror and he
was sent to Guantanamo as a translator. He was arrested in July as he prepared
to leave for Syria, where he said he planned to marry his girlfriend.

Palmosina helped the lead investigator in the case, Special Agent Lance Wega.
Rehkopf alleges that Wega and agents with the Air Force's Office of Special
Investigations drank beer, failed to wear gloves and rifled through the contents
of a box seized as evidence from Al Halabi, then repacked the box to "pretend
and mislead" that they were following protocol.

Special Agent Christopher Birch, who also was in the room when the box was
opened, was called by prosecutors to testify Tuesday. He portrayed the incident
as an innocent mistake that was quickly remedied.

"They were like, whoops. We gotta start over," Birch said.

Rehkopf also said prosecutors failed to allow another Arabic translator to
correct apparently damaging testimony at Al Halabi's preliminary hearing. That
translator, Suzan Sultan, now says she misread a letter from the Syrian
government to the airman, thinking the Syrians had given Al Halabi permission to
visit another Middle Eastern country, Qatar. She testified Tuesday at Travis and
reiterated for the court what she had told defense lawyers.

Sultan later realized that Qatar also could mean "homeland," meaning that Al
Halabi could have been telling the truth when he said he merely wanted to go to
Syria to get married. Sultan said prosecutors refused to allow her to admit she
made the mistake. She recently contacted Rehkopf because she said her conscience
was bothering her.

Dressed in black and wearing a head scarf, Sultan, who left the military last
December and now lives in North Carolina, said she immediately told prosecutor
Capt. Dennis Kaw about her mistake.

"I told him in the context of that letter Qatar didn't fit and the true meaning
of the word was homeland," Sultan said, adding that he told her not to worry,
but don't share it with defense lawyers.

Rehkopf accused the government of a "cover-up."

"The truth didn't make it into the record, the record became tainted. We don't
know what impact that taint had," he said. "There's a large question mark now
about everything going on this case."

Kaw, who argued against the dismissal motion, said recent revelations only
showed how well the military justice system works and, instead, he complained
that prosecutors were keeping the government from getting a fair trial.

"There was no misconduct. There was no malice. There were mistakes," he said.

Rehkopf was quick to pounce, pointing out the U.S. Constitution does not
guarantee the government a fair trial.

"It's the duty of the United States to ensure the accused gets a fair trial," he
said, glancing at Al Halabi who wore his dress uniform and said nothing during
the proceedings.

* * *


Fairfield-Susuin Daily Republic:

June 15, 2004

DEFENSE STILL WANTS CHARGES AGAINST AL HALABI DROPPED

By Ian Thompson

http://www.dailyrepublic.com/articles/2004/06/15/news/news5.txt

TRAVIS AFB -- Attorneys for a Travis Air Force Base airman accused of espionage
today are expected once again to ask that all charges be dropped against him.

Military Judge Col. Barbara Brand will likely rule on a defense motion to drop
all charges against Senior Airman Ahmad I. Al Halabi. The defense claims the
prosecution obstructed justice and mishandled evidence.

Defense attorney Donald Rehkopf contends that an overzealous Air Force Office of
Special Investigations special agents mishandled a box of evidence they found
and then tried to cover up their mistake.

Air Force prosecutors say the defense's allegations are unsupported.

Rehkopf said at a May 12 pre-trial hearing that the OSI agents opened up a box
that Al Halabi had sent to his sister's house, handling classified documents
they found inside without gloves and drinking beer to celebrate their find.

The agents, realizing their mistake, put the contents back in, closed the box up
and reopened it, and took photos as if doing it for the first time, Rehkopf
said.

Al Halabi's defense team learned of this incident in early April when former
Staff Sgt. Suzan Sultan, who was the prosecution's translator, contacted
Rehkopf's office saying she was there when the box was opened.

The defense said the investigators put on their gloves as soon as they spotted
the evidence and one of the agents said the box had to be repackaged and
pictures taken.

Syrian-born Al Halabi, 26, is charged with espionage, lying and disobeying
orders. He is suspected of trying to deliver classified documents and e-mails
from detainees at Guantanamo Bay to someone in Syria.

Al Halabi was picked up on July 23, 2003, at Jacksonville Naval Air Station
carrying 180 notes in his computer.

Thirteen of the 30 charges leveled against Al Halabi have since been dropped. He
was released from custody on May 12 after Brand declared he was not a flight
risk.

Al Halabi is back at his job as a supply clerk for the 60th Logistical Readiness
Squadron but is also confined to base and has to report in daily to the security
forces squadron.

This is the second time that Rehkopf criticized the government about how it
handled Al Halabi's investigation.

OSI investigators, armed with a search warrant, entered the defense team's
office when it was set up at Vandenberg AFB in December and seized a computer.

Rehkopf cried foul, saying it violated attorney-client privilege and Brand ruled
to suppress any evidence that may have been found in the computer.

Reach Ian Thompson at 427-6976 or ithompson@dailyrepublic.net.

* * *


Reuters:

June 15, 2004

DEFENSE SAYS MILITARY BOTCHED GUANTANAMO SPY CASE

By Adam Tanner

http://www.reuters.com/newsArticle.jhtml?type=domesticNews&storyID=5432449

TRAVIS AIR FORCE BASE, Calif. (Reuters) - A key investigator for the military's
espionage case against a Syrian-American translator at the U.S. naval base in
Guantanamo has been charged with raping children, officials said on Tuesday.

Defense lawyers asked a judge to dismiss all charges against Senior Airman Ahmad
Al Halabi because of prosecutorial misconduct including not revealing the
investigator's own background.

Halabi is accused of carrying prison maps, letters and other documents from the
Cuban base where he worked as an Arabic translator with suspected al Qaeda and
Taliban fighters being held there.

Military Judge Col. Barbara Brand did not immediately rule on the motion to
dismiss but scheduled the hearing to resume on Wednesday morning.

Before asking Brand to dismiss the spy charges, Halabi's lawyer, Donald Rehkopf,
told reporters about the charges against Air Force Tech Sgt. Marc Palmosina, who
he said had overseen the probe against his client

"It's less than due diligence, it's bad faith," Rehkopf argued in court. "We're
not talking about a simple mistake here. ... Malice per se exists when the
government hides favorable and exculpatory evidence. There is no higher form of
malice in the judicial system."

Military officials provided reporters a list of charges against Palmosina that
included rape of a person under the age of 12 in Japan in 1998 and 2000 and
sodomy of a child under the age of 12 in Vacaville, California.

The charges against Palmosina were filed on May 26 but only came to light on
Tuesday. They also included "failing to safeguard some number of classified
documents and/or failing to store some number of classified documents only in
authorized locations."

"It's not good," Col. John Kellogg, deputy staff judge advocate for Air Mobility
Command, told Reuters, adding it should not affect Halabi's upcoming trial.

"It's a big government," he continued. "The case stands on its own merits.
Investigators and people will be able to answer all the questions that (need to
be) answered."

Military officials said the classified documents Palmosina had were not related
to the case against Halabi.

In court, a prosecutor said there were no grounds to dismiss the case. "There
was not misconduct; there was no malice; there were mistakes," Lt. Cmdr. Robert
Crow said.

He cited one instance where prosecutors opened a box of Halabi's possessions
without using gloves to prevent spreading their fingerprints on the evidence and
even drinking beer at the time to celebrate. "They just intercepted those
documents without those getting into the wrong hands," he said. "Yes, they were
elated."

As a witness, the defense presented a former military Arabic translator who told
the court she saw the opening of the box and the drinking. She also said a
prosecutor once told her to disregard a major translation error she made in
court regarding Halabi and not tell the defense.

* * *


Slate:

June 15, 2004

LONE STAR JUSTICE
Alberto Gonzales' strange views of international law.

By Alan Berlow

http://slate.msn.com/id/2102416/

Even before he came to Washington as chief legal counsel to President George W.
Bush, Alberto Gonzales demonstrated a penchant for finding ways around
international law.

In the burgeoning Abu Ghraib prison scandal, Gonzales has surfaced as the author
of one highly controversial memo and co-author of a second, both of which raise
serious questions as to whether the president authorized or condoned the use of
torture, a war crime under the Geneva Conventions. Although the president said
he's only approved actions consistent with U.S. and international law, that
hasn't settled the matter because the main thrust of the memos crafted by
Gonzales as well as Justice, Defense, and intelligence agency lawyers, seems to
have been to come up with justifications for torture within the law. It remains
to be determined whether these memos, individually or collectively, provided the
legal go-ahead for the policies that culminated in the abuses at Abu Ghraib.

The president also said he couldn't remember if he'd seen legal opinions written
by Justice Department and Pentagon lawyers. But it may prove more difficult for
him to deny having seen a January 2002 "Memorandum for the President" in which
Gonzales argued that the Geneva Conventions were "obsolete" and that by
disregarding them the administration would substantially reduce its
vulnerability to "criminal prosecution under the War Crimes Act," which he noted
could incur a death sentence.

Continue Article

Curiously, it was in his role as legal counsel to then-Gov. Bush that Gonzales
penned yet another memo pertaining to international law, only in that case his
advice was designed not to avoid death sentences, but rather to expedite them on
Texas' heavily populated death row. On June 16, 1997, Gonzales first showcased
his proclivity for torturing international law when he sent a letter to the U.S.
State Department in which he argued that, "Since the State of Texas is not a
signatory to the Vienna Convention on Consular Relations, we believe it is
inappropriate to ask Texas to determine whether a breach -- occurred in
connection with the arrest and conviction" of a Mexican national. Or, put
another way, he asserted that an international treaty just didn't apply to
Texas.

The Mexican in question, Irineo Tristan Montoya, was a fisherman convicted of
brutally stabbing and murdering John Kilheffer in Brownsville, Texas, in 1985.
Tristan, who insisted he was innocent, was executed two days after Gonzales sent
his memo to State, despite protests from the Mexican government. Mexico alleged
that Texas had violated Tristan's rights under the Vienna Convention because it
had failed to inform the Mexican consulate at the time of his arrest.

The Vienna Convention, ratified by the Senate in 1969, was designed to ensure
that foreign nationals accused of a crime are given access to legal counsel by a
representative from their home country. In the absence of a lawyer and without
access to Mexican authorities, Tristan, who neither spoke nor understood
English, signed a confession that he later said he believed to be an immigration
document.

The U.S. State Department has periodically expressed concerns about violations
of this treaty by state police because it wants foreign governments to honor the
treaty when they arrest Americans. Oklahoma Gov. Brad Henry cited his concern
for "protecting the rights of Americans abroad" last month when he commuted the
sentence of Mexican national Osbaldo Torres to life in prison.

Similarly, the United States is a signatory to international treaties barring
torture, not only because it is deemed inconsistent with our traditions, but to
prevent the torture of Americans arrested abroad. In a memorandum to the White
House in January 2002, Secretary of State Colin L. Powell argued that ignoring
proscriptions on torture would "reverse over a century of U.S. policy and
practice in supporting the Geneva Conventions and undermine the protections of
the laws of war for our troops."

Following Tristan's execution, Bush's office released a statement that read, in
part: "Gov. Bush assures the people of Mexico that Mr. Tristan had [a] fair
trial, ample opportunity to be heard and the full protections of the
Constitution and laws of the United States of America."

That was not entirely true, however, because Bush and Gonzales apparently
believed that international law, as embodied in the Vienna Convention, was
somehow inapplicable to Texas. It would be difficult to find an international
law expert who agreed with Gonzales' legal analysis, due in no small part to
Article 6 of the Constitution, which states that, "... all treaties made, or
which shall be made, under the authority of the United States, shall be the
supreme law of the land." Supreme Court precedent dating to 1804 establishes
that states are bound by U.S. treaties.

Where Gonzales' analysis of the Geneva Conventions set out to rationalize
torture of al-Qaida and Taliban prisoners, the president's top attorney had
similarly pragmatic considerations in mind back when it came to dodging the
Vienna Convention. Gonzales favored ignoring the latter because he knew that
Texas police had probably violated the treaty's reporting requirement in
hundreds if not thousands of arrests, and that any concession to international
law in the Tristan matter might have unforeseen consequences for other cases.
This proved rather prophetic.

Two years later, U.S. Secretary of State Madeleine Albright weighed in on the
Vienna Convention as Texas prepared to execute a Canadian national, Joseph
Stanley Faulder. In a letter to the Texas Board of Pardons and Paroles, Albright
wrote: "I am deeply troubled by the failure of consular notification in this
case. Texas has conceded that the [Vienna Convention's] requirement of consular
notification was violated. -- It is clear that, but for these failures, Canadian
consular officials would have visited Mr. Faulder in prison and offered him
assistance -- when such assistance would have been critical."

There were other problems with the Faulder conviction, among them that the state
had paid its chief witness more than $10,000 and that Faulder's prosecutor was
literally paid for by the victim's family -- a judicial innovation apparently
unique to Texas. In an "execution summary" he prepared for Bush, Gonzales
acknowledged the violation of the Vienna Convention, but concluded that it was
"harmless error." Faulder was executed on June 17, 1999.

For his part Bush suggested at the time that the main message of the Faulder
case was, "People can't just come in our state and cold-blood murder somebody."
Unmoved by the violation of international law, Bush simply chose to disregard it
and get on with the execution. During his tenure as governor, Bush signed off on
152 executions. He commuted only one death sentence to life when it became clear
that the condemned man could not have committed the murder for which the state
was preparing to execute him.

In March of this year, the International Court of Justice in The Hague issued a
stunning rebuke to the United States under the Vienna Convention, ruling that we
had violated the rights of 52 Mexicans on death row, including 15 in Texas, and
ordering their cases to be reviewed. It was too late for Tristan, however; Bush
signed off on his execution seven years earlier.

Gonzales' legal advice in both the Faulder and Tristan cases suggests that, in
matters of life and death, he viewed international law and Article VI of the
Constitution as irrelevant to Texas or, at best, inconveniences that might
easily be circumvented by legal assertions grounded in shaky reasoning. Gov.
Bush apparently agreed.

Much more will be at stake if Gonzales' interpretation of the Constitution and
international law is allowed to take root in the loosely defined war on
terrorism. With the U.S. image worldwide at what may be an historic nadir, it is
hard to imagine how a decision by the president to abrogate one of the
cornerstones of international human rights law would either enhance that image
or encourage other nations to shoulder any of the costs of the ongoing Iraq
adventure. In the end, however, what is most important is what these memos say
about who we are as a nation. If the president has, in fact, rationalized a
decision to abandon the Geneva Conventions on Prisoners of War and the U.N.
Convention Against Torture for the poisoned promise of torture, he should
explain to the American public how that squares with this country's commitment
to the most fundamental principles of justice and decency.

[ Alan Berlow, author of Dead Season: A Story of Murder and Revenge, writes
frequently about criminal justice issues. ]

* * *


BBC --

June 15, 2004

IRAQ ABUSE 'ORDERED FROM THE TOP'

http://news.bbc.co.uk/2/hi/americas/3806713.stm

The US commander at the centre of the Iraqi prisoner scandal says she was told
to treat detainees like dogs.

Brig Gen Janis Karpinski told the BBC she was being made a "convenient
scapegoat" for abuse ordered by others.

Top US commander for Iraq, Gen Ricardo Sanchez, should be asked what he knew
about the abuse, she told BBC Radio 4's On The Ropes programme.

One soldier has been sentenced and six others are awaiting courts martial for
abuses committed at Abu Ghraib jail.

Gen Karpinski said more damaging information was likely to emerge at those
trials.

Gen Karpinski was in charge of the military police unit that ran Abu Ghraib and
other prisons when the abuses were committed. She has been suspended but not
charged.

More details awaited

Photographs showing naked Iraqi detainees being humiliated and maltreated first
started to surface in April, sparking shock and anger across the world.

Gen Karpinski said military intelligence took over part of the Abu Ghraib jail
to "Gitmoize" their interrogations - make them more like what was happening in
the US detention camp at Guantanamo Bay, Cuba, which is nicknamed "Gitmo".

She said current Iraqi prisons chief Maj Gen Geoffrey Miller - who was in charge
at Guantanamo Bay - visited her in Baghdad and said: "At Guantanamo Bay we
learned that the prisoners have to earn every single thing that they have."

"He said they are like dogs and if you allow them to believe at any point that
they are more than a dog then you've lost control of them."

Gen Karpinski repeated that she knew nothing of the humiliation and torture of
Iraq prisoners that was going on inside Abu Ghraib - she was made a scapegoat.

Top commander Ricardo Sanchez must be asked serious questions about what he knew
about the abuse and when, she said.

Gen Sanchez said in May that he took a personal responsibility for the abuse by
soldiers at Abu Ghraib jail. But he denied authorising interrogation techniques
such as sleep deprivation, stress positions or sensory deprivation.

Last week, he asked to be excused from any role in reviewing the results of an
investigation into the abuses. He requested that a higher-ranking general take
on that task, Pentagon officials said.

A US general who has investigated the abuse has blamed the soldiers - and found
no evidence "of a policy or a direct order given to these soldiers to conduct
what they did".

But Gen Karpinski believes the soldiers had not taken the pictures of their own
accord.

"I know that the MP [military police] unit that these soldiers belonged to
hadn't been in Abu Ghraib long enough to be so confident that one night or early
morning they were going to take detainees out of their cells, pile them up and
photograph themselves in various positions with these detainees."

"How it happened or why those photographs came to the Criminal Investigation
Division's attention in January I think will probably come out very clearly at
each individual's court martial."


* BBC RADIO 4 INTERVIEW WITH BG JANIS KARPINSKI (Real audio 30 mins)

http://www.bbc.co.uk/radio4/factual/rams/ontheropes.ram

* * *

The Australian:

June 16, 2004

GENERAL IN THE FIRING LINE

By Roy Eccleston, Washington correspondent

http://www.theaustralian.news.com.au/common/story_page/
0,5744,9855088^28737,00.html

SHE always called him Georgie -- George O'Kane, the Australian military major
and lawyer who helped rebuff Red Cross concerns about prisoner treatment at
Baghdad's notorious Abu Ghraib jail.

But Janis Karpinski, the suspended US Army brigadier-general whose troops took
the Iraqi abuse photos that have shocked the world, says she was not being
overly familiar with the young officer with the "wonderful accent".

"I used to call Major O'Kane 'Georgie' because when someone introduced me to him
at first, they said, 'This is Georgie O'Kane'," Karpinski tells The Australian.
"I thought that was his name."

Karpinski has become a one-woman public relations machine since the photographs
of the still-snowballing scandal first appeared on US television early last
month. The 51-year-old, denying she is in disgrace, claims she knew nothing of
the abuses and that her superiors are making her a scapegoat.

But her media appearances have made her face a little too well-known. So we meet
where she is not likely to attract too much attention: a rest-stop on the busy
interstate 95 highway just north of the Georgia-South Carolina border.

In her pink polka dot shirt with matching pink shoes and handbag, Karpinski
doesn't look like a general this day. Her critics say she didn't act much like a
general in Baghdad, failing to oversee her troops, failing to see numerous red
flags that abuse was happening.

During the next 90 minutes, oblivious to the roar of the semitrailers and stares
of curious travellers, Karpinski recounts her version of events at the notorious
prison -- and how an Australian military lawyer she "admired and respected",
O'Kane, helped her respond to Red Cross allegations that Iraqis were being
abused.

O'Kane's involvement has produced claims that Australia is implicated in the
scandal since he knew about the contents of the two papers from the
International Committee of the Red Cross.

The papers have not been made public, but The New York Times on May 22 said the
ICRC reported in November that its staff had "documented and witnessed" at Abu
Ghraib ill-treatment that "included deliberate physical violence" as well as
verbal abuse, forced nudity and prolonged handcuffing in uncomfortable
positions.

Although the ICRC papers were addressed to Karpinski, she says they somehow
ended up with lawyers working for the US general in Iraq, Ricardo Sanchez. The
reply was drafted by O'Kane and other more senior military lawyers at the
Coalition Joint Task Force 7 headquarters in Baghdad, she says.

Karpinski signed the letter dated December 24. Effectively it fobbed off the
ICRC and argued that some of the prisoners would be denied Geneva Convention
protections because of a loophole the US claimed excluded prisoners who were
security threats.

It is a claim that has outraged human rights lawyers, who say it is another
example of the US using the war on terrorism as a justification for
circumventing the protections the Geneva Conventions give prisoners from abuse
and torture.

Karpinski says there was never any hint of the abuses going on inside the
interrogation cells at the jail, which she says was taken over by military
intelligence in October. The New York Times yesterday claimed otherwise. It said
some military interrogators at Abu Ghraib sent reports to Karpinski and others
about abuses, including beatings, last November. It is unclear if she read them;
she did not return calls on that question.

But she insists that O'Kane had not known of the really serious abuses. "Had
Major O'Kane known anything about those photographs or anything close to those
photographs, he would have come and told me," Karpinski insists.

Karpinski saw a lot of O'Kane during the second half of last year. "He was at a
lot of the prisons meetings," she says. "Anything to do with the legal aspects
of detention operations he was always there. He was extremely conscientious and
professional in every single setting with me, despite me calling him Georgie. He
was never disrespectful, he was very patient."

She says they both knew that the general overcrowding in Abu Ghraib was a kind
of abuse in itself.

O'Kane once told her the decision had been made that all prisoners were to be
afforded humane treatment, representation and knowledge of their charges -- "and
he said, 'as we all know that's not being done because there's far too many
detainees and far too few magistrates"'.

"Look, I'm more culpable than he is, if he is being blamed in any way," she
says. "But when people say abuse, I don't have knowledge of O'Kane sitting in
and watching an interrogation taking place."

The man she blames more than anyone else is Geoff Miller, a general and former
commander at Guantanamo Bay who visited Abu Ghraib at the behest of the Pentagon
in September 2003.

With no weapons of mass destruction and no Saddam Hussein, the US was desperate
to get better intelligence. Karpinski's role as commander of the MPs who were
guarding prisoners in Iraq meant Miller wanted to see her during his visit. (Her
title was commander of the 800th Military Police Brigade.)

"He used the expression he was going to 'Gitmo-ise' the operation because they
were very successful in Guantanamo Bay [known as Gitmo in the US military]," she
recalls. "He said during the briefing, 'These detainees, these terrorists are
like dogs. If you allow them to believe any differently, then you've lost
control of your own operation."'

Just before Miller left, he called Karpinski to a meeting. "I want you to give
me Abu Ghraib," she says he told her.

When she replied it was not hers to give, she says he told her it could be done
his way or the hard way -- and that Sanchez had told him he could have whatever
facility he wanted. "I'm going to brief him tonight and we're going to take it,"
he allegedly told her.

Within a week, the head of military intelligence at the prison, Thomas Pappas, a
colonel in command of the 205th Military Intelligence Brigade, asked her for
control of one part of the prison, Cell Block 1A; then, a few weeks later, 1B.
In both cases, she says, she agreed.

At the end of the month Sanchez issued an order handling tactical control of the
jail to Pappas. Sanchez has said since that Pappas only gained control of
security operations against attacks on the jail; Karpinski insists it meant
Pappas then ran the jail and that was a view shared by Antonio Taguba, a general
who investigated the photograph scandal.

"Pappas was under tremendous pressure from everybody," Karpinski says. But
Pappas had been involved only in tactical and strategic intelligence. She says
he told her once: "I've never done interrogation operations before. I don't know
anything about interrogations."

The jail was too full, as US raids became more aggressive in the hunt for WMDs
and Saddam. Pretty soon there were nearly 6000 prisoners there. She recalls one
meeting where she objected when US officers insisted she try to cram even more
in.

O'Kane and another Australian military officer, Mike Kelly, a colonel, came to
her aid. "'No, you can't, the general is right,"' she says Kelly said. "'There
are violations looming in the future, maybe tomorrow, maybe two days from now.
They haven't seen magistrates. You can't hold prisoners without them being
afforded their rights.'

"And Major O'Kane was saying, 'The real solution here is to get some of these
people released."'

During this time, strange things were happening in the interrogation section of
the jail, some of it seen by the ICRC. O'Kane was among a group of officers at
the meeting where Karpinski says she learned of the report for the first time,
in late November, when it was already weeks old.

Sanchez's top legal adviser Marc Warren told her he wanted to discuss an ICRC
report. Karpinski says she told him she had no idea what he was talking about.
Warren happened to have a copy. "He said: 'Don't worry about anything, we're
working on the response,"' she says. "I take a look at it and I say: 'What is
this all about?' I said this to Pappas: 'What's this wearing women's underwear
on their head?' And one of his operations officers said: 'Oh ma'am, I told
Colonel Pappas to stop giving them Victoria's Secret catalogues because they
were going to make up stories like this."'

(Sanchez told the US Senate committee last month that Karpinski received the
report first and claimed to have only just learned that his top legal adviser
had assisted her.)

His own military lawyer, Jim O'Hare, advised her not to sign the initial drafts
of the letter of response. O'Kane also opposed attempts to limit the ICRC's
access to the jail, she says.

She insists O'Kane told her in "this wonderful accent": "'Ma'am, we don't ever
like to tell the ICRC that they can't come into a facility and that's what they
were trying to do."'

But in late December she signed a letter that insisted all prisoners were being
treated humanely -- despite the clear evidence from the Red Cross they were not.
It also claimed some prisoners were not entitled to the full protection of the
Geneva Conventions under a controversial section aimed at spies and saboteurs.
O'Kane was party to a letter that denied the basic truth of Abu Ghraib -- that
abuses were taking place as the ICRC said. And they were being photographed.

Yet Karpinski can't accept fault. "From my perspective, the treatment was
humane," she insists. "I had no hint that there was anything taking place in
Cell Block 1A or B of the interrogation facilities that would have cautioned
me."

(Part of the reason for that, Taguba wrote in his report, was that she rarely
visited the place.)

And avoiding the Geneva Conventions? "They said the prisoners in isolation or
undergoing interrogation were largely connected to terrorist events or
terrorism," she says. "I asked that specifically. I said: 'Are terrorists not
afforded the Geneva Convention?' Colonel Warren told me: 'No, they are not."'

Surely underwear on the head was a blatant sign that things were amiss? "But,
again, detainees will make up stories," Karpinski says. "I had seen reports
before that in other facilities, where detainees said they were shocked under
interrogation, beat on the head, and I knew that wasn't true."

But it was true and this time it wasn't the Iraqis making up stories.

* * *


NEWSWEEK:

TIMELINE - PRISONER ABUSE IN IRAQ

Key dates in the Iraqi prisoner abuse scandal

Aug. 31-Sept. 9, 2003
Maj. Gen. Geoffrey Miller, who runs the military prison for terror suspects at
Guantanamo Bay, Cuba, conducts an inquiry on interrogation and detention
procedures in Iraq. He suggests that prison guards can help set conditions for
the interrogation of prisoners.

October-December
Many of the alleged abuses at Abu Ghraib take place during this time period.

Oct. 13-Nov. 6
Maj. Gen. Donald Ryder, provost marshal of the Army, investigates conditions of
U.S.-run prisons in Iraq, including Abu Ghraib. He finds problems throughout the
prisons. Some units, including the 800th Military Police Brigade, did not
receive adequate training to guard prisons, he notes. He also says military
police (MPs) should not assist in making prisoners more pliable to
interrogation, as their job is to keep prisoners safe.

Nov. 19
The 205th Military Intelligence Brigade is given responsibility for Abu Ghraib
prison and authority over the 800th Military Police Brigade.

November
Two Iraqi detainees die in separate incidents that involved CIA interrogation
officers.

Jan. 13, 2004
Army Spc. Joseph M. Darby, an MP with the 800th at Abu Ghraib, first reports
cases of abuse at the prison.

Jan. 16
Lt. Gen. Ricardo Sanchez orders a criminal investigation into reports of abuse
at the prison by members of the brigade. The military also announces the
investigation publicly.

Jan. 19
Sanchez orders a separate administrative investigation into the 800th MP
Brigade. Maj. Gen. Antonio M. Taguba is appointed to conduct that inquiry on

Jan. 31.
Late January - early February
President Bush becomes aware of the charges sometime in this time period,
according to White House spokesman Scott McClellan, although the spokesman has
not pinpointed a date. Defense Secretary Donald H. Rumsfeld tells Bush of the
charges, McClellan has said.

Feb. 23
Seventeen U.S. soldiers suspended from duties pending outcome of investigation.

Feb. 24
International Committee of the Red Cross provides the Coalition Authority with a
confidential report on detention in Iraq. Portions of the report are published
without ICRC consent by the Wall Street Journal on May 7.

March 3-9
Taguba presents his report to his commanders. He finds widespread abuse of
prisoners by military police and military intelligence. He also agrees with
Ryder that guards should not play any role in the interrogation of prisoners.
March 20
Brig. Gen. Mark Kimmitt tells reporters six military personnel have been charged
with criminal offenses.

Mid April
Gen. Richard Myers, chairman of the Joint Chiefs of Staff, asks CBS-TV to delay
airing photographs it has obtained of abuse at Abu Ghraib. Myers says the photos
would exacerbate an intense period of violence under way in Iraq. CBS delays its
program for two weeks.

April 28

Rumsfeld meets with senators in a closed briefing on the war in Iraq. Rumsfeld
neglects to mention the issue of prisoner abuse or the coming disclosure of
photos.

CBS 60 Minutes II airs the photos, setting off an international outcry. Bush
first learns about these photos from the television report, his aides say.

Early May
CIA confirms that some of its officers hid Iraqi prisoners from watchdog groups
like the Red Cross.

May 1
An article by Seymour Hersh, published on The New Yorker magazine's Web site,
reveals contents of Taguba's report.

May 2
Myers admits on ABC’s "This Week" that he has not yet read the Taguba report
issued in March.

May 3
Officials say the Army has reprimanded seven soldiers in the abuse of inmates at
Abu Ghraib.

May 4
U.S. Army discloses that it is conducting criminal investigations of 10 prisoner
deaths in U.S. custody in Afghanistan and Iraq - beyond two already ruled
homicides - plus another 10 abuse cases. (The number grows by two on May 5, when
the CIA says it is investigating more cases.)

May 5
President Bush appears on two Arab television channels to address the scandal
but does not apologize for the abuse of iraqi prisoners by U.S. troops. The
following day Bush does apologize.

May 6

The Washington Post publishes four additional photos.

President Bush privately admonishes Rumsfeld for not keeping him informed about
the issue.

May 7
Rumsfeld testifies before the Senate and House Armed Services Committees on the
issue of prisoner abuse in Iraq. Separately, Army Pfc. Lynndie England, shown in
photographs smiling and pointing at naked Iraqi prisoners, is charged with
assaulting detainees and conspiring to mistreat them.

May 19
Spc. Jeremy C. Sivits receives the maximum penalty -- one year in prison,
reduction in rank and a bad conduct discharge -- in the first court-martial
stemming from mistreatment of Iraqi prisoners at the Abu Ghraib prison.
Source: Associated Press, MSNBC research, NBC News

* * *


The Scotsman (UK) --

June 14, 2004

EX-HOSTAGE ACCUSES GOVERNMENT OVER GUANTANAMO BAY CAPTIVES

By Andrew Woodcock, Political Correspondent, PA News

http://news.scotsman.com/latest.cfm?id=3062328

Former Beirut hostage Terry Waite today said the position of detainees held by
the US at Guantanamo Bay and the Abu Ghraib prison in Baghdad was the same as he
experienced when held captive by Islamist militants.

Mr Waite called on the British Government to speak out in protest at the way
Washington is handling the detainees, who are being held without charge and
denied access to lawyers and their families.

The former envoy of the Archbishop of Canterbury said the UK had "gone along"
with the US mistreatment of prisoners by sending British interrogators to
question detainees at Guantanamo Bay.

Although he had no direct evidence of torture being used at the US naval base in
Cuba, he said he would not be surprised if that turned out to be the case.

Mr Waite told the BBC Radio 4 Today programme: "When I was a hostage, I was
taken by my captors, with whom I was negotiating, because they suspected me of
being an agent of a government.

"They blindfolded me and took me away and under harsh conditions I was subjected
to interrogation and, had I not been able to convince my captors that I was in
fact a humanitarian negotiator, I would have certainly been executed.

"That process is almost identical to the process adopted by America in dealing
with these people who have been labelled by (US Defence Secretary) Donald
Rumsfeld as ‘hardcore well-trained terrorists’.

"They have not had any access to due process and they are put under a very
ambiguous status in this camp and kept under very harsh conditions."

Asked if he thought torture was taking place in Guantanamo’s Camp Delta, Mr
Waite said: "I have heard that such techniques have been used and I have treated
them with great caution because we don’t have any direct evidence.

"It wouldn’t surprise me for one moment if those conditions had been such
whereby torture had been applied on those people, and I think it is
disgraceful."

Mr Waite added: "I feel that our Government ministers ought to speak out and
ought to have spoken out much more clearly on this issue.

"We have in some ways gone along with what’s happening in Guantanamo Bay. I am
told that we have had interrogators there from our intelligence services. I
don’t think our protest has been strong enough."

* * *


TIME:

June 13, 2004

REDEFINING TORTURE
Did the U.S. go too far in changing the rules, or did it apply the new rules to
the wrong people?

By Amanda Ripley

http://www.time.com/time/magazine/printout/0,8816,1101040621-650689,00.html

From the moment that photos documenting prisoner abuse in Iraq came to light
seven weeks ago, the Bush Administration has stuck to the claim that the crimes
were the vile acts of a few bad soldiers. But the effort to blame a few
individuals has faltered as evidence has mounted of abuse in U.S. detention
centers from Cuba to Afghanistan to Iraq. Last week the scandal seemed to drift
ever closer to implicating policymakers at the highest levels of the U.S. war
council.

A series of leaked legal memos has revealed that since late 2001 the
Administration has been quietly but fundamentally reshaping America's stance on
torture. Contradicting 50 years of policy governing the treatment of detainees
captured during conflict, the memos meticulously list all the laws against
torture -- then offer methods of evading them. The White House insists that
these documents were abstract musings rather than actual policy changes.
Nevertheless, they suggest that what happened at Abu Ghraib was not unique but
grew out of a climate of ambiguity regarding the treatment and interrogation of
prisoners that was created by an Administration determined to do whatever it
takes to win the war on terrorism.

The leaked memos alone do not prove that U.S. officials endorsed the use of
torture to extract intelligence from detainees. But they have put the
Administration on the defensive. Before the Senate Judiciary Com-mittee last
week, Attorney General John Ashcroft said, "This Administration opposes
torture," but he refused to release an unclassified memo quoted by the
Washington Post that seemed to undercut his words. President Bush, asked whether
he signed off on any memos that might have loosened the rules of interrogation,
said he did not recall seeing any such documents and that "the authorization I
issued was that anything we did would conform to U.S. laws" and international
treaties.

As early as Sept. 16, 2001, Vice President Dick Cheney, in his first interview
after the 9/11 attacks, said, "It's going to be vital for us to use any means at
our disposal, basically, to achieve our objective." His declaration met little
resistance from a public reeling from 9/11 and willing to support measures
needed to prevent another attack. Behind the scenes, government lawyers debated
the meaning of "any means at our disposal." Even before the U.S. went into
Afghanistan in October 2001, State Department officials and Pentagon military
lawyers were incensed that political appointees wanted to exempt captured
Taliban and al-Qaeda fighters from the Geneva Conventions. "[Secretary of State
Colin] Powell was irate over it," recalls a former State Department official.
"He was arguing, 'You can't not follow the Geneva Conventions.'" After 9/11, a
small group of politically appointed lawyers in various departments in the
Administration maintained that the conventions, which ban the use of torture on
prisoners of war and were signed by the U.S. in 1955, did not apply in a war
against terrorists. Top officials agreed. In February 2002, Defense Secretary
Donald Rumsfeld said, "The reality is, the set of facts that exist today with
al-Qaeda and the Taliban were not necessarily the set of facts that were
considered when the Geneva Convention was fashioned." That month President Bush
declared that U.S. soldiers would abide by the spirit of the Geneva Conventions
but that neither Taliban nor al-Qaeda captives held in Guantanamo Bay would
actually qualify as prisoners of war. The conclusion that al-Qaeda members were
not subject to the treaty made sense to many international lawyers.

However, the Taliban did represent a nation state -- one that was party to the
conventions. Still, the Administration decided that, as John Yoo -- a University
of California law professor who while a Justice Department attorney wrote one of
the primary memos -- explained last week in a Los Angeles Times editorial, "the
Taliban militia lost its right to prisoner-of-war status because it did not wear
uniforms, did not operate under responsible commanders and systematically
violated the laws of war."

In mid-2002 government lawyers began crafting even bolder interpretations of
anti-torture laws. A Justice Department memo in August advised the CIA that
torturing al-Qaeda terrorists abroad "may be justified," the Washington Post
reported last week. In December, Rumsfeld approved a list of 17 interrogation
tactics for Guantanamo, including sleep deprivation and "stress" positions. Amid
concerns that the tactics violated international law, Rumsfeld withdrew the list
a month later and asked for a policy review. He issued a new list in April 2003
that is still in use. According to a former Pentagon official who worked on the
review, the final list of approved techniques is less harsh than the original
recommendations.

After the invasion of Iraq, rules governing interrogation of prisoners broke
down as untrained soldiers tried to cope with thousands of detainees and the
military blurred distinctions between resistance fighters and terrorists. A
senior Pentagon official says the rules for interrogation in Iraq were "more
aggressive than the ones at Guantanamo." Stress positions, sleep deprivation,
the use of dogs to intimidate detainees -- all violations of Geneva -- were
allowed in Iraq, though they had not been used at Guantanamo. At Abu Ghraib,
detainees wore plastic bracelets printed with their ID number and the word
terrorist, the Wall Street Journal reported.

As the Administration expanded the definition of terrorist, it contemplated ways
to skirt long-observed prohibitions against torture. A March 2003 draft of a
Defense Department report, leaked to the Wall Street Journal last week, argued
that the President had the authority to approve almost any physical or
psychological tactic, including torture, in the name of national security.
Though Administration officials say they never authorized the use of torture,
some members of Congress are furious that the U.S. even looked for ways to
justify it. "It's just incredible," Republican Senator John McCain told Time.
"Why doesn't every nation in the world now have a green light to do everything
it thinks is necessary to combat a 'terrorist threat'?"

Despite White House attempts to disavow responsibility for the practices
employed at Abu Ghraib and elsewhere, the existence of the memos has further
eroded U.S. credibility. A Pentagon official tells Time that Rumsfeld is arguing
privately to declassify the interrogation techniques because, coming out
piecemeal, they are doing a lot of political damage. Some high-ranking military
officials, however, say that al-Qaeda already trains its recruits on techniques
in the Army field manual, and that if the other ones are made public, the
terrorists could use that to their advantage. Things could get even worse. A
Republican Senator says charges of manslaughter and rape may soon be brought
against U.S. personnel involved in handling detainees in Iraq and Afghanistan.

[ With reporting by Massimo Calabresi, Matthew Cooper, Viveca Novak, Mark
Thompson, Karen Tumulty and Douglas Waller/ Washington; and Aparisim
Ghosh/Baghdad ]

* * *


Sacramento Bee:

June 13, 2004

AIRMAN'S LAWYERS ATTACK EVIDENCE
By Sam Stanton and Denny Walsh -- Bee Staff Writers

http://www.sacbee.com/content/politics/story/9640618p-10563997c.html

Allegations of a military cover-up, lying and an illegal search have raised
serious questions about the spy case against Ahmad I. Al Halabi, and his lawyers
now say much of the evidence used against him was seized unlawfully.

The case, which is being watched closely by the White House, Pentagon and U.S.
Justice Department, already has been rocked by claims that the lead Air Force
investigator misled the judge overseeing the court-martial.

Now, defense attorneys have filed new documents claiming that same agent seized
Al Halabi's mail - the heart of the government's case - in an illegal search.

The revelations are designed to bolster defense efforts to get the charges
against the 25-year-old Arabic translator dismissed. And there are concerns
among government officials that the judge overseeing Al Halabi's court-martial
at Travis Air Force Base may dismiss some or all of the espionage charges,
sources said.

The military already has seen one high-profile case against a serviceman at
Guantanamo Bay, Cuba, collapse.

Al Halabi once was suspected of being part of an alleged Muslim spy ring at
Guantanamo, along with Army Capt. James Yee, a chaplain labeled as the
ringleader. Yee also was arrested carrying what authorities said were secret
documents. He was imprisoned for 76 days while Army officials sought evidence
against him. He eventually was freed, and the Army dropped the charges in March.

Now, sources say, there is mounting embarrassment over revelations about how the
Al Halabi investigation has been handled.

"There is a tremendous amount of frustration," said one source familiar with the
case.

No one in government would speak on the subject for attribution.

The Syrian-born senior airman, now a naturalized U.S. citizen, is accused of
taking classified material from the Navy base at Guantanamo Bay, where he served
as a translator for suspected Taliban and al-Qaida terrorists detained there.

The Air Force accuses him of attempting to smuggle the material to Syria. The
defense claims he was heading there for his wedding and planned to return to
Travis with his bride.

The court-martial is proceeding at Travis, with the trial portion expected to
begin later this summer. Hearings on allegations about the military's conduct
are scheduled to resume Tuesday.

Al Halabi was arrested in July in Florida as he headed for his wedding. At the
time, officials said, they believed there was enough evidence to charge him with
espionage, including a count that carries the death penalty.

The government had obtained classified material from his laptop computer. But
the defense since has said that the material was nothing more than letters from
detainees that already had been censored by the military and mailed, and are of
little value as evidence.

The government's case appeared to be enhanced significantly when agents later
found a box of allegedly classified documents and other items that Al Halabi had
mailed to himself at Travis from Guantanamo.

But the defense claims in its latest filing that the mail was seized illegally,
and that agents discovered he had mail waiting for him at the Travis post office
simply on a hunch.

Agents having lunch together in August began talking about whether Al Halabi
might have mail piling up since his arrest the previous month, so they went to
the post office and asked, the new filing says.

When they discovered there was mail, the defense claims, they ordered it held
for them without any legal authority and told post office employees they would
be back with a search warrant.

The agents then sought a warrant to seize the mail from the U.S. District Court
in Sacramento, according to defense claims, but were rebuffed because they could
not show a relevant connection between the mail and their investigation.

Investigators "had no idea what mail was present, who or where it was sent from
or any other particular of any kind to include 'probable cause,' " the defense
said in its filing, which asks the court to bar the Air Force from using the
mail as evidence.

After that failure, agents returned to the post office and sifted through Al
Halabi's mail to obtain specifics about what was waiting for him, then used that
information to again apply for a warrant, which the federal court in Sacramento
granted, according to the filing.

The defense claims the examination of the mail was part of an effort by lead
investigator Lance Wega to illegally beef up the case against Al Halabi.

"The investigators were desperate to drum up any information they could," the
defense motion states. "They had already searched every nook and cranny of Al
Halabi's life, to include his car, his dorm room at Travis, his residence at
Guantanamo, his person, his luggage, his credit, his bank accounts, his
computers, his Internet accounts, his e-mail ...

"Having come up empty-handed, the fishing expedition extended to a hope and a
prayer that maybe something would be in his mail."

These latest defense claims come on the heels of other serious allegations about
government misconduct, including an accusation that the key physical evidence
seized at the post office - a box that allegedly contained classified documents
and a letter to Al Halabi from the Syrian embassy - was mishandled by
investigators, who then tried to cover up their behavior.

Former Air Force translator Suzan Sultan, who worked for Wega and then contacted
the defense after her discharge from the Air Force, claims in court documents
that OSI agents turned the search into a beer party and ripped open the mail
with bare hands.

Up to that point, according to sources, FBI agents from the Sacramento field
office had worked closely with agents from the Air Force Office of Special
Investigations. The plan was to have the items seized from Al Halabi's mail
tested for fingerprints by the FBI.

But, after the search allegedly was bungled, OSI refused to give up the items
for testing and quit cooperating with the FBI, the sources said.

"It was like a curtain had been dropped," one knowledgable government official
said.

There also are sworn statements from Sultan that prosecutors would not listen to
warnings that they were overstating the evidence against Al Halabi and that Wega
gave incorrect testimony in court.

The defense already has signaled that it intends to paint Wega, a civilian OSI
member, as a rogue agent viewing this as his "big case" and bent on convicting
Al Halabi at any cost.

In court documents, Sultan recounted for the defense a conversation she had
about Wega with fellow investigator Chris Birch.

"And he told me that he feels that, you know, Agent Wega is really pressing this
because he wants to have, like, a high priority case," Sultan said. "He wants to
prove, you know, he wants to win ... something like this."

Wega, who has been ordered by the court not to discuss the case, was the agent
in charge during the box search and subsequent cover-up, according to Sultan.

He also was the agent who slipped into Al Halabi's quarters at Guantanamo and
copied the hard drive of the airman's laptop computer. Investigators later said
they found copies of 182 letters on the hard drive from detainees to their
families that were considered classified.

At first blush, the allegation that Al Halabi possessed classified material
appeared sinister. In itself, that would be a crime, but a minor one -
equivalent to a misdemeanor. To support the espionage accusations, it must be
proven that he intended to pass harmful information to an enemy of the United
States.

As pretrial hearings have unfolded, it appears that at least some of the
classified material are letters written by detainees but already vetted by the
military and mailed. And defense lawyers continue to press the point that much
of the material generated at Guantanamo was reflexively stamped "Secret" without
justification.

Citing "repugnant and illegal government and prosecutorial misconduct," Al
Halabi's lawyers have asked the judge to dismiss all charges.

The military has been closed-mouthed about the case, insisting it does not want
to jeopardize the suspect's rights. But military officials have noted that
formal charges against Al Halabi came after extensive investigation and a
hearing to determine whether it was likely he was involved in wrongdoing.

Despite that, the defense has signaled it intends to raise the notion that the
military was going after Muslims based at Guantanamo.

Besides Al Halabi and Yee, Ahmed Fathy Mehalba, a civilian Arabic interpreter at
Guan-tanamo, was arrested in October at Boston's Logan International Airport as
he was returning from Egypt and found to have classified information on a
compact disc he was carrying. He was charged with making false statements to an
FBI agent and gathering defense information.

His lawyer, Michael C. Andrews, said his client had no idea the information was
on the disc and that "there are no allegations, no evidence, no suggestion that
he's ever copied this stuff intentionally to transmit to anyone to use it for
any nefarious purpose."

A fourth suspect at the Navy base, Col. Jackie D. Farr, a non-Muslim, has been
charged with mishandling classified material there.

Muslim groups say the arrests of Yee, Al Halabi and Mehalba show the military is
unfairly focusing on service members with Arabic or Muslim backgrounds.

"We believe there is a witch hunt targeting Muslim U.S. servicemen," said
Shereen Sabet, a marine biologist at UC Irvine and spokeswoman for a group
called Justice for Ahmad Al Halabi. "It seems like this might be the tip of the
iceberg.

"Their loyalty is being questioned, their patriotism is being questioned just
for the simple fact that they're Muslim, not because they've done anything
wrong."

Sabet's group, organized in Southern California in conjunction with Al Halabi
family members living there, has raised $30,000 so far to help pay his legal
fees.

Al Halabi's civilian defense attorney, Donald Rehkopf, still has hopes that he
can win dismissal of the charges. Last month, after he revealed evidence of
prosecutorial misconduct, the judge agreed that Al Halabi could be freed from
confinement pending trial. He since has returned to work as a supply clerk and
is restricted to the base.

The military's difficulties have sparked discussions inside the U.S. attorney's
office and the FBI in Sacramento, but sources say prosecutors see no way to
wrest the matter from the Air Force unless the military judge throws out the
charges before a verdict.

Legal experts say federal prosecutors could file a new case without violating Al
Halabi's constitutional protection against double jeopardy.

"Let's say that the defense is able to get some of the charges dismissed," said
Timothy E. Naccarato, a retired Army colonel and former staff judge advocate.
"The feds could come in and try their own charges.

"In my view, that would be extraordinary. That would be a slap in the face to
the military, and maybe justifiably."

Naccarato said allegations of prosecutorial misconduct and mishandling of
evidence are "unbelievable," but not necessarily fatal to the military's
efforts.

"This is highly embarrassing," said Naccarato, who is director of academic
support at the McGeorge School of Law in Sacramento and chief judge of the
California Military Appeals Panel. "It doesn't necessarily sink their case, but
if I were the judge, I'd be angry as hell."

About the Writer
---------------------------

The Bee's Sam Stanton can be reached at (916) 321-1091 or sstanton@sacbee.com.

* * *


Reuters:

June 13, 2004

GUANTANAMO CELL TAPES TURNED OVER TO US OFFICIALS

By Jane Sutton

http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=5408667

U.S. NAVAL BASE, Guantanamo Bay, Cuba (Reuters) - Officers at the U.S. naval
base at Guantanamo Bay have turned over to military authorities more than 500
hours of videotape showing guards subduing prisoners and forcibly moving them
from cells, senior officials said.

The tapes are expected to be released in a few weeks to Pentagon and
congressional investigators examining abuses of prisoners by U.S. troops, and
many will likely be made public, the officials told journalists visiting the
base in the past week.

Most of the almost 600 prisoners at the base in Cuba were captured in late 2001
during the U.S.-led war to oust al Qaeda and their Taliban protectors in
Afghanistan; most have not been charged with a crime.

The tapes show five-member teams of guards subduing prisoners who break camp
rules, throw bodily waste at guards or refuse to leave their cells when ordered
to, said Col. Nelson Cannon, who serves as the prison warden.

They document 500 to 600 instances where the teams, called the Immediate
Response Forces or IRFs, were called in to move or restrain prisoners, Cannon
said.

"Forty-five percent of IRFs are ones who don't want to go to interrogations,"
Cannon said. "Sometimes you've got to carry them all the way."

Some prisoners released from Guantanamo said detainees were beaten during that
process and some suffered broken limbs. Guantanamo officials denied that and
said they were confident the tapes would show the guards do not rough up the
prisoners. They confirmed former prisoners' reports that pepper spray was
sometimes used.

The treatment of the prisoners at Guantanamo has come under scrutiny since the
abuse of prisoners in Iraq by U.S. troops was revealed in April, when pictures
emerged of bound prisoners being sexually humiliated and threatened by dogs.

"Given events around the world and the great interest in how the detention and
intelligence-gathering mission is being conducted, nearly every aspect of our
operation here has been reviewed by one group or another," said Brig. Gen. Jay
Hood, who commands the task force running the prison.

"I have no concerns about providing those (tapes)," he said.

The unarmed IRF team members wear padded suits like police SWAT teams and each
of four grabs one of the prisoner's arms and legs. The fifth handcuffs and
shackles the prisoner, base officials said.

The tapes were turned over to the military's Southern Command in Miami, which
has jurisdiction over Guantanamo. They will be sent to the Pentagon in a few
weeks, when they have been transferred to digital format, Hood said.

Before the tapes are made public, the images of soldiers faces and name tags
will be blurred to protect their identities, he added.

The general, who took over the prison's operation two months ago, said he was
confident military police guarding prisoners were adequately trained and that
safeguards were in place to ensure detainees were treated humanely. He said he
and visiting government officials regularly made surprise inspections and have
found nothing awry.

The United States does not consider the al Qaeda and Taliban prisoners to be
prisoners of war under the Geneva Conventions, and their indefinite detention
without legal proceedings is being challenged in the U.S. courts.

However, Hood said, "We are complying with the rules of the Geneva convention in
terms of how we maintain the custody mission and the intelligence-gathering
mission."

* * *


San Francisco Chronicle:

June 13, 2004

LAW PROFESSOR TAKING LEAD IN 'ENEMY COMBATANT' CASE

By Harriet Chiang, Chronicle Legal Affairs Writer

http://www.sfgate.com/cgi-bin/article.cgi?file=
/chronicle/archive/2004/06/13/BAGQH75CUO1.DTL

STANFORD -- Two years ago, Jenny Martinez was a young lawyer in Washington,
D.C., pondering a career in teaching when she heard that a New York native and
former Chicago gang member had been whisked away to a naval brig in South
Carolina and declared an "enemy combatant" by President Bush.

Alarmed that his rights were being trammeled, Martinez joined a network of
lawyers writing briefs in support of Jose Padilla, the first U.S. citizen
arrested on American soil in the war on terrorism. It was a cause she continued
to pursue as she left the East Coast and came west last fall to teach law at
Stanford.

In a relatively short career, Martinez has developed an expertise in
international law, having worked on the Bosnia war crimes trials and helped
Rwanda transfer criminal cases arising from the 1994 genocide from the
international tribunal to the national and local courts. But even veteran
lawyers were surprised when she was selected over Padilla's lead attorney, Donna
Newman, to argue the constitutionality of Padilla's open-ended detention before
the U.S. Supreme Court in April.

The high court's ruling, due later this month, will be one of the most important
of its current term. The justices' decisions on the Padilla case, along with
rulings expected at the same time on Yaser Esam Hamdi, another detained U.S.
citizen, and the confinement of more than 600 prisoners at Guantanamo Bay, Cuba,
will test the breadth of the government's powers in its war on terrorism and
potentially alter the rules of America's justice system.

Padilla, like Hamdi, is being held in a military jail in South Carolina for an
extended period without being charged or granted access to a lawyer or the
courts.

Bush administration lawyers have compared Padilla to a "ticking time bomb, " who
they say was planning a radiological "dirty bomb" attack in the United States at
the time of his arrest two years ago. To bolster its case, the government
released information early this month also accusing Padilla of plotting with
high-ranking members of al Qaeda to blow up U.S. apartment buildings.

The decision to have Martinez, a soft-spoken lawyer who until then had worked
diligently in the background, present his case before the Supreme Court was
announced only a week before the arguments, but lawyers in the audience that
April morning said that she handled the justices' steady volley of questions
like a seasoned advocate.

Before a packed courtroom, Martinez told the justices that the government had no
right to detain him indefinitely without a hearing, a lawyer or even a military
proceeding. "Never before in our nation's history has this court granted the
president a blank check to do whatever he wants to American citizens," she said
to the nine justices.

Martinez is vague about how her selection to argue the case was made. "We faced
a tough decision because there were a lot of people on the team who would have
done a great job," she said.

But those who know her say the choice made sense.

Martinez's credentials are impressive, especially for someone who is only 32 and
looks much younger -- she still has to show her identification when she orders a
drink. She is a graduate of Yale University and Harvard Law School and may be
the first Latina to clerk for a U.S. Supreme Court justice. In 2000, Hispanic
Business magazine named her one of the 100 most influential Hispanics in the
country.

She also has developed an expertise in an obscure, but growing area of the law
-- international human rights. In 1999, she was a law clerk for the United
Nations International Criminal Tribunal for the former Yugoslavia at The Hague,
which presided over trials for war crimes committed during the Serbian-Bosnian
war.

"She has a brain and a depth of knowledge of the law of war that is
extraordinary," said Andrew Patel, a veteran Washington, D.C., lawyer who is
helping to represent Padilla. "It was like manna from heaven when she arrived,"
he added.

Despite her early success, friends say Martinez has no noticeable ego and is
incredibly generous, but behind her warm, down-to-earth manner is an advocate
who passionately embraces any issue she takes on.

Martinez said she is motivated by a commitment to public policy, which was
instilled in her by her parents and nurtured during her years growing up in
Washington, D.C. "It's mostly a desire to make a difference, or to do something
constructive for the rest of the world," she said.

Of the Padilla case, she said, "this is the greatest abuse of government power
in this country that's taken place in many years."

Martinez was born in San Francisco but moved to Washington, D.C., with her
mother when she was 5 after her parents divorced. She remains close to both
parents who, she proudly noted, were in the audience when she appeared before
the Supreme Court.

Martinez went to Yale and planned to go to both law school and medical school so
she could eventually pursue a career in public health. She graduated cum laude
from Yale and chose Harvard for law school. She did so well that she was able to
line up two coveted clerkships -- one with Judge Guido Calabresi of the Second
Circuit U.S. Court of Appeals in New York and the other with U.S. Supreme Court
Justice Stephen Breyer.

Both judges were former law professors with an interest in international law,
which they passed on to Martinez. When she heard that Judge Patricia Wald, a
former federal appeals court judge in Washington, D.C., needed a law clerk at
The Hague, she applied for the job and got it.

It was an eye-opening experience for Martinez. International law is an elusive
mix of laws, and her the complexities of her job were compounded by the
challenge of often operating in languages other than English.

Wald said Martinez was one of the best law clerks she's ever had. "Her mind is
very astute, and it goes to the bottom line very quickly," the judge said.

Upon her return to the United States, Martinez went to work for the law firm
Jenner & Block in Washington. She took a leave to teach at Yale for a year and
eventually decided to go into academia.

She came to Stanford last fall and said she couldn't be happier as a teacher,
training the next generation of lawyers. She also serves as an adviser to Latino
students. "There are so few Latinos represented at the higher levels of the
profession that it's really important to help out younger people," she said.

Despite her packed schedule, she manages to maintain a personal life with her
boyfriend, David Graham, and her golden retriever, Katie, whom she took on a
long run the day before the Supreme Court arguments.

"She has already shown herself to be an outstanding scholar and teacher, " said
Deborah Rhode, a fellow law professor at Stanford. "And now she's also a leading
Supreme Court advocate."

"You don't often get a chance to hit three home runs in your first year out of
the box," Rhode said.

Said Martinez with a shrug: "I'm just working hard and trying to do my best. And
I have had very good luck."

Biography

Jenny Martinez

Age: 32

Born: San Francisco

Undergraduate degree: Yale University

Law degree: Harvard Law School

Law clerk: Judge Guido Calabresi, Second Circuit U.S. Court of Appeals in New
York

Law clerk: Justice Stephen Breyer, U.S. Supreme Court

Law clerk: Judge Patricia Wald, United Nations International Criminal Tribunal
for the former Yugoslavia at The Hague

Lawyer: Jenner & Block, Washington, D.C.

Professor: Stanford Law School

Hobbies: Running, hiking and cooking, especially her grandmother's Mexican
dishes

Quote: "This is the greatest abuse of government power in this country that's
taken place in many years," she said of the government's open-ended detention of
U.S. citizen Jose Padilla.

[ E-mail Harriet Chiang at hchiang@sfchronicle.com ]

* * *


The Telegraph (UK):

June 13, 2004

INTERROGATION ABUSES WERE 'APPROVED AT HIGHEST LEVELS'

By Julian Coman in Washington

http://www.telegraph.co.uk/news/main.jhtml;sessionid=
G1B4GVSOLLEM1QFIQMGCM5WAVCBQUJVC?xml=/news/2004/06/13/wguan13.xml&secureRefresh=
true&_requestid=92606

http://www.axisoflogic.com/artman/publish/article_9016.shtml

New evidence that the physical abuse of detainees in Iraq and at Guantanamo Bay
was authorised at the top of the Bush administration will emerge in Washington
this week, adding further to pressure on the White House.

The Telegraph understands that four confidential Red Cross documents implicating
senior Pentagon civilians in the Abu Ghraib scandal have been passed to an
American television network, which is preparing to make them public shortly.

According to lawyers familiar with the Red Cross reports, they will contradict
previous testimony by senior Pentagon officials who have claimed that the abuse
in the Abu Ghraib prison was an isolated incident.

"There are some extremely damaging documents around, which link senior figures
to the abuses," said Scott Horton, the former chairman of the New York Bar
Association, who has been advising Pentagon lawyers unhappy at the
administration's approach. "The biggest bombs in this case have yet to be
dropped."

A string of leaked government memos over the past few days has revealed that
President George W Bush was advised by Justice Department officials and the
White House lawyer, Alberto Gonzalez, that Geneva Conventions on torture did not
apply to "unlawful combatants", captured during the war on terror.

Members of Congress are now demanding access to all White House memos on
interrogation techniques, a request so far refused by the United States
attorney-general, John Ashcroft.

As the growing scandal threatens to undermine President Bush's re-election
campaign, senior aides have acknowledged for the first time that the abuse of
detainees can no longer be presented as the isolated acts of a handful of
soldiers at the Abu Ghraib.

"It's now clear to everyone that there was a debate in the administration about
how far interrogators could go," said a legal adviser to the Pentagon. "And the
answer they came up with was 'pretty far'. Now that it's in the open, the
administration is having to change that answer somewhat."

In the latest revelation, yesterday's Washington Post published leaked documents
revealing that Gen Ricardo Sanchez, the senior US officer in Iraq, approved the
use of dogs, temperature extremes, reversed sleep patterns and sensory
deprivation for prisoners whenever senior officials at the Abu Ghraib jail
wished. A memo dated October 9, 2003 on "Interrogation Rules of Engagement",
which each military intelligence officer was obliged to sign, set out in detail
the wide range of pressure tactics they could use - including stress positions
and solitary confinement for more than 30 days.

The White House has ordered a damage-limitation exercise to try to prevent the
abuse row undermining President Bush's re-election campaign. Donald Rumsfeld,
the Secretary of Defence, has ordered that all deaths of detainees held in US
military custody are to be reported immediately to criminal investigators.
Deaths in custody will also be reported to the chairman of the Joint Chiefs of
Staff, Richard Myers, and to Mr Rumsfeld himself.

The Pentagon has also announced an investigation into the condition of inmates
at Guantanamo Bay, where more than 600 prisoners suspected of links with al-
Qaeda are being held. The inquiry will be led by Vice-Adml Albert Church, who
has been ordered to investigate reports that extreme interrogation techniques
"migrated" from Guantanamo to Iraq. "This is not going to be a whitewash," said
the Pentagon adviser. "The administration is finally realising how damaging this
scandal could become."

A new investigator has also been appointed to lead the inquiry into abuse at Abu
Ghraib. Gen George Fay, a two-star general, will be replaced by a more senior
officer. Gen Fay, according to US military convention, did not have the
authority to question his superiors. His replacement indicates that the Abu
Ghraib inquiry will now go far beyond the activities of the seven military
police personnel accused of mistreating Iraqi detainees.

Legal and constitutional experts have expressed astonishment at the judgments
made by administration lawyers on interrogation techniques. In one memo, written
in January 2002, Mr Gonzalez told President Bush that the nature of the war on
terror "renders obsolete Geneva's strict limitations on questioning of enemy
prisoners and renders quaint some of its provisions".

Scott Silliman, a former US air force lawyer and the director of the Centre for
Law Ethics and National Security at Duke University, said: "What you have is a
culture of avoidance of law rather than compliance with it."

A separate memo, written by Pentagon lawyers in March 2003, stated that "the
infliction of pain or suffering per se, whether it is physical or mental is
insufficient to amount to torture. [The pain] must be of such a high level of
intensity that it is difficult for the subject to endure".

* * *


Kansas City Star/ AP:

June 13, 2004

RED CROSS URGES RELEASE OF IRAQI POWS

By Sam Cage, Associated Press

http://www.kansascity.com/mld/kansascity/news/consumer_news/8914777.htm?1c

GENEVA (AP) - All Iraqi prisoners of war and interned civilians should be
released when sovereignty is transferred to a new Iraqi government, according to
rules governing warfare, a spokeswoman for the international Red Cross said
Sunday.

"If we consider that the occupation ends June 30, that would mean it's the end
of the international armed conflict," Nada Doumani of the International
Committee of the Red Cross told The Associated Press Sunday by phone from
Baghdad.

According to article 118 of the third Geneva Convention, prisoners of war should
be repatriated without delay at the end of hostilities. Article 133 of the
fourth convention says that interned civilians should also be released when
conflict ends.

It remains to be seen whether the occupation effectively ends with the handover
of sovereignty, however, and Doumani stressed that "the situation on the ground
determines the facts."

"This is the legal situation: When the conflict ends the prisoners of war should
be released according to the Geneva Conventions," she explained. "Therefore ...
all people detained in relation to the conflict should be released unless there
are penal charges against them."

Although Iraqis will run their own affairs after June 30, about 150,000 U.S. and
other coalition troops will remain in the country to help improve security under
a U.N. resolution approved unanimously by the U.N. Security Council on Tuesday.

After the handover of sovereignty, detainees held by the Iraqi authorities will
be subject to Iraqi law. But current prisoners who are not released because they
face penal charges will remain under the protection of the Geneva Conventions,
Doumani said.

In an interview published Saturday in the daily Neue Zuercher Zeiting, ICRC
President Jakob Kellenberger said it was unclear which authorities the Red Cross
should deal with after the transfer of sovereignty.

The ICRC is empowered under the 1949 Geneva Conventions to visit prisoners of
war and other detainees and make sure their care meets international standards.

"In principle all prisoners of war and interned civilians must be released July
1," Kellenberger said. "If prisoners remain under the responsibility of the
multinational troops, then we'll have to check whom we should report to. We will
negotiate directly with the Iraqi authorities over our visits to prisoners in
their care."

Kellenberger noted that the legal status of Iraqi detainees remained unclear and
that every person has the right to know on what grounds they are being held
prisoner.

The neutral ICRC, which began visiting detainees of the coalition immediately
after the March 2003 invasion of Iraq, has been complaining privately to U.S.
authorities about mistreatment of prisoners.

But the complaints were made public only when a written ICRC report was leaked
following the publication of photographs showing U.S. guards mistreating and
humiliating detainees.

* * *


Newsday:

June 13, 2004

MEMO OPENS TORTURE QUESTIONS

By Craig Gordon, Washington Bureau

http://www.nynewsday.com/news/nationworld/nation/ny-
ustort133848386jun13,0,4494572.story?coll=ny-nationalnews-headlines

WASHINGTON -- During a recent Supreme Court argument, the justices pressed a
Bush administration lawyer to explain just how far the president's claim of
sweeping powers over accused terrorists could go.

"Suppose the executive says, 'Mild torture we think will help get this
information.' ... Some systems do that to get information," Justice Ruth Bader
Ginsburg asked at the April hearing.

"Well, our executive doesn't," insisted the government's lawyer, Paul Clement.
He also assured justices that the United States would stand by its international
commitments that prohibit torture.

Yet more than a year earlier, Justice Department and Pentagon lawyers had
crafted detailed arguments for getting around world anti-torture treaties, and
stated that President George W. Bush legally could authorize torture against
some detainees.

A U.S. president at war is no longer bound by those torture conventions, or even
by federal law, the legal memos contend, but can approve any technique necessary
to prevent attacks and save American lives.

The Pentagon's memo, obtained last week by Newsday, also sets out detailed
standards for how far interrogators can go, asserting they can apply physical
pain or mental suffering as long as it is not severe or lasting - and offers a
dictionary definition of "severe."

Pentagon officials have sought to minimize the importance of the March 2003
working group memo, equating it to a legal exercise to explore the limits of the
anti-torture laws.

These officials said it had no bearing on a revised set of 24 interrogation
techniques approved the following month for the U.S.-run Guantanamo Bay prison,
which are less severe than what the memo contemplated and are not torture in the
Pentagon's view.

Seven of the 24 techniques fall outside standard Army practice, and four of the
seven require Defense Secretary Donald Rumsfeld's approval. Some of the
extraordinary techniques were used on a man believed to be the planned 20th
hijacker on Sept. 11, Mohamed al-Qahtani.

The seven include isolating a prisoner, manipulating his diet while still giving
enough food to survive and questioning him for up to 20 hours at a time for up
to three days, officials said.

Still, the memos have outraged international law experts, human rights
advocates, military lawyers and some in Congress. They say the arguments seek to
cast aside more than 50 years of U.S. compliance with treaties and place Bush
above the law, setting a precedent that puts U.S. soldiers who fall into enemy
hands at grave risk.

"Every single underpinning of law that restrains the conduct of the government
in dealing with detainees, they are destroying. And what are they leaving in its
place? Chaos," said Scott Horton, a New York City bar association expert on
international law who got a secret visit last year from military lawyers worried
about harsher interrogations.

He said flatly, "They're looking for a way to justify torture."

At the very least, the memos show lawyers for the Bush administration have
labored since the Sept. 11 terror attacks to stake out the president's right to
virtually unchecked powers over terror suspects.

In a series of cascading legal arguments since January 2002, the Bush
administration first lifted Geneva Convention protections from al-Qaida
operatives in Afghanistan, then from Taliban fighters and ultimately sought to
offer the CIA and the military the authority to use extreme interrogation
methods.

John Hutson, the former top Navy military lawyer, argues that in that light, the
abuses that occurred at Iraq's Abu Ghraib prison late last year are hardly
surprising.

"It started with the president saying, [Osama bin Laden] dead or alive; then we
started parsing out who was a terrorist and who wasn't," Hutson said. "When you
add to that, saying that essentially torture is OK ... it's absolutely
inevitable that what happened in Iraq was going to happen."

Seven soldiers face criminal charges for abusing prisoners by placing them into
sexually humiliating positions, then photographing them. Human rights groups
also found prisoners forced to wear sensory deprivation hoods, placed in stress
positions and paraded in the nude - which the International Committee of the Red
Cross called "tantamount to torture."

It was on April 28 that Clement offered his assurances about limits on
interrogations - the very day that the Abu Ghraib pictures surfaced. His
arguments came in two lawsuits challenging the Bush administration's authority
to hold American citizens Jose Padilla and Yaser Esam Hamdi as "enemy
combatants" indefinitely without trial.

Padilla's lawyer, Donna Newman, said she doubted Clement purposely
misrepresented the government's legal thinking on torture and questioned whether
he would have known of the memos. The Justice Department refused to comment.

Still, Newman said the memos raise the question of whether Padilla might be
subject to torture. "I am not saying he was tortured. I'm saying I don't know,
but what I do know now is torture was condoned," she said.

Last week, Attorney General John Ashcroft said he was not aware of any order by
Bush that would violate laws or treaties banning torture.

Bush last week sidestepped a chance to denounce torture, saying, "What I've
authorized is that we stay within U.S. law." He said he didn't recall whether he
had seen the memos.

In the Pentagon memo, the lawyers clearly contemplate much more severe
activities than Rumsfeld approved for Guantanamo Bay in April 2003, and offer
carefully constructed definitions of torture to make them possible. At one
point, the memo says that the word "severe" in torture statutes "makes plain
that the infliction of pain or suffering per se, whether it is physical or
mental, is insufficient to amount to torture," but that the pain must be severe
to qualify.

Also, if an interrogator believes his actions won't result in prolonged mental
harm, "he lacks the mental state necessary for his actions to constitute
torture," the memo reads.

The lawyers argued that the president's power to wage war is unassailable.
Therefore, the laws against torture "must be construed as inapplicable to
interrogations" during wartime.

Legal experts say these analyses are flawed - one called them "absurd" - but
also lose the larger point that the United States has always stood by a
commitment not to torture.

"The only thing that keeps us from being animals are basically self-imposed
rules," Hutson said. "If we ... fall to our basic instincts, we're no better
than the terrorists."

[ Staff writer John Riley contributed to this story. ]

* * *


The Observer (UK):

June 13, 2004

SECRET WORLD OF US JAILS

The worldwide hidden network of prisons where more than 3,000 al-Qaeda suspects
have been held without trial - and many subjected to torture - since 9/11...

By Jason Burke

http://observer.guardian.co.uk/international/story/0,6903,1237589,00.html

The United States government, in conjunction with key allies, is running an
'invisible' network of prisons and detention centres into which thousands of
suspects have disappeared without trace since the 'war on terror' began.

In the past three years, thousands of alleged militants have been transferred
around the world by American, Arab and Far Eastern security services, often in
secret operations that by-pass extradition laws. The astonishing traffic has
seen many, including British citizens, sent from the West to countries where
they can be tortured to extract information. Anything learnt is passed on to the
US and, in some cases, reaches British intelligence.

The disclosure of the shadowy system will increase pressure on the Bush
administration over its 'cavalier' approach to human rights and will embarrass
Tony Blair, a staunch ally of President George Bush.

The practice of 'renditions' - when suspects are handed directly into the
custody of another state without due process - has sparked particular anger. At
least 70 such transfers have occurred, according to CIA sources. Many involve
men who have been freed by the courts and are thus legally innocent. Renditions
are often used when American interrogators believe that harsh treatment - banned
in their own country - would produce results.

The Observer has obtained details of two incidents in which men have been
detained by the US despite being found innocent by courts in their own country.
In one, a British businessman called Wahab al-Rami, an Iraqi living in the UK
and a Palestinian seeking asylum were arrested by US and local officers in
Gambia in November 2002 as they stepped off a flight from London.

Their seizure, which followed a tip-off from the UK security services - came
just days after they had been arrested by British police on suspicion of
terrorism and then freed by a British court.

Two were transported from Gambia to Guantanamo Bay - where they remain today -
without any legal process. In the other incident, two Turks, a Saudi, a Kenyan
and a Sudanese man were arrested in Malawi in June 2003 on suspicion of funding
terrorist networks. Though freed by local courts, the men were handed over to
the CIA and held for several months. Campaigners say these incidents are 'the
tip of an iceberg'.

Few escape the ghost network of detention facilities, which range from massive
prison camps such as that at Guantanamo Bay to naval vessels in the Indian
Ocean, so accounts of life inside the new gulag are rare.

One of the most harrowing stories concerns a Syrian-born Canadian, Maher Arar,
who was arrested by US authorities in late 2002 during a stopover in New York,
on suspicion of terrorist activities.

After several days of questioning, the 34-year-old IT specialist was flown to
Jordan, where the CIA passed him on to local security officials. He was
repeatedly assaulted in Jordan before being driven to Syria, where he was kept
in solitary confinement in a 6ft by 3ft cell for several months and repeatedly
beaten with cables. All charges were dropped on his release. Arar said last week
that he was 'trying to rebuild [his] life'. 'I never did anything to make me a
suspect. I could not believe they would send me back to Syria, but they did,' he
said. 'They sent me back to be tortured.'

The ghost prison network stretches around the globe. The biggest American-run
facilities are at the Bagram airbase, north of Kabul in Afghanistan, Guantanamo
Bay, where around 400 men are held, and in Iraq, where tens of thousands of
detainees are held. Saddam Hussein and dozens of top Baath party officials are
held in a prison at Baghdad airport.

However, Washington is relying heavily on allies. In Morocco, scores of
detainees once held by the Americans are believed to be held at the al-Tamara
interrogation centre sited in a forest five miles outside the capital, Rabat.
Many of the detainees were originally captured by the Pakistani authorities, who
passed them on to the Americans.

One is Abdallah Tabarak, a militant who is alleged to have been Osama bin
Laden's bodyguard and was seized in late 2001 by the Pakistanis. Tabarak was
handed over to US agents, sent to Bagram and then to Guantanamo, before being
flown to Morocco. Last November, Amnesty International criticised the 'sharp
rise' in torture during 2003 in Moroccan prisons.

In Syria, detainees sent by Washington are held at 'the Palestine wing' of the
main intelligence headquarters and a series of jails in Damascus and other
cities. Egypt has also received a steady flow of militants from American
installations. Many other militants have been sent to Egypt by other countries
through transfers assisted by the Americans, often using planes run by the CIA.

In Cairo, prisoners are kept in the interrogation centre in the general
intelligence directorate in Lazoughli and in Mulhaq al-Mazra prison, according
to Montasser al-Zayat, an Islamist lawyer in Cairo and former spokesman for
outlawed militant groups.

Terrorists have also been sent to facilities in Baku, Azerbaijan, and to
unidentified locations in Thailand. Scores more are thought to be at a US
airbase in the Gulf state of Qatar, and a large number are believed to have been
sent to Saudi Arabia, where CIA agents are allowed to sit in on some of the
interrogations. Elsewhere, security officials merely provide the Americans with
summaries.

The fate of high-value prisoners - such as those directly connected to the 11
September attacks or other al-Qaeda strikes, or senior aides of bin Laden - is
unknown. Abu Zubaydah, the Palestinian-born al-Qaeda logistics expert, was
arrested after a shoot-out in the Pakistani city of Faisalabad in March 2002 by
a joint team of American and Pakistani special forces.

After a brief interrogation, Abu Zubayda was handed over to the Americans, who
took him to Bagram and then, it is believed, flew him on to Jordan, where he has
been held, along with several other high-value prisoners, in prisons in the
capital, Amman, and in desert locations in the east of the country. Jordanian
investigators are seen as 'professional' by Western intelligence services,
although the nation has been repeatedly criticised for its human rights record.

Khaled Sheikh Mohammed and Ramzi bin al-Shibh, who both helped plan the 11
September attacks, were also transferred to American custody soon after their
capture by Pakistani security forces in September 2002 and March 2003
respectively. They are believed to have been interrogated in Thailand.

The whereabouts of Riduan Isamuddin, the Indonesian activist dubbed 'the bin
Laden of the Far East', who was passed to the Americans following arrest by Thai
security forces in August last year, are unknown. Jabarah Mohamed Mansur,
allegedly involved in an attempt to bomb the US and Israeli embassies in
Singapore, is reported to have been interrogated in Oman.

What is clear is that the Americans are prepared to go to extraordinary lengths
to capture suspects and to ensure that they are taken to an environment where
information can be extracted as speedily as possible.

In March 2003, FBI agents kidnapped a Yemeni al-Qaeda suspect from a hospital in
Mogadishu, where he was being treated for gunshot wounds. Two months earlier, a
sophisticated operation involving a fake charity lured a 54-year-old Yemeni to
Germany, where he was detained and later extradited to the US. To seize Mohammed
Iqbal Madni, a suspected al-Qaeda operative, in Indonesia, US investigators
worked three states' legal systems to provide an excuse to pick up the 24-year-
old Pakistani. They then flew him to Cairo on a private US-run jet.

The exact number of prisoners held by the Americans or their allies is unknown,
but US officials claim that more than 3,000 al-Qaeda militants have been
arrested since 11 September. Only around 350 are held in Guantanamo Bay. Very
few have been released.

The incarceration of prisoners captured by the Americans in jails in the Middle
East has enraged militants. Abu Musab al-Zarqawi, the Jordanian-born terrorist
leader who is active in Iraq, said in April that prisons in his native land had
become 'the Arab Guantanamo'.

'Whoever the Americans find hard to investigate in Pakistan and Afghanistan,
they move to Jordan, where they are tortured in every way,' he said.

American officials are unrepentant. 'You have to break eggs to make omelettes,'
said one last week. 'The world is a bad place.'

And Cofer Black, then head of the CIA counter-terrorist centre, said last year
that 'there was a before 9/11 and an after 9/11. After 9/11, the gloves came
off.'

But former intelligence officers criticised the new tactics last week. Milton
Bearden, who ended a 30-year career with the CIA in 1994, said that coercion did
not work.

'You just get all kinds of confessions that turn out to be completely untrue,'
he said. 'And rendition to someone who will torture a suspect is as bad as doing
it yourself.'

Wahab al-Rawi, whose brother is still being held in Guantanamo Bay, said that he
was angry at both the British government and the US government.

'I just want to know how my own government can just give me up to the Americans.
Who do these people answer to?

'I just ask God to punish them, because there is no power on earth that they
seem to be afraid of.'

* * *


US News & World Report --

June 12, 2004 - 6/21/04 Issue

HIDING A BAD GUY NAMED TRIPLE X
How the military treated some inmates at Abu Ghraib like 'ghosts'

By Edward T. Pound

http://www.usnews.com/usnews/issue/040621/usnews/21abughraib.htm

The top U.S. commander in Iraq, Lt. Gen. Ricardo Sanchez, issued a classified
order last November directing military guards to hide a prisoner, later dubbed
"Triple X" by soldiers, from Red Cross inspectors and keep his name off official
rosters. The disclosure, by military sources, is the first indication that
Sanchez was directly involved in efforts to hide prisoners from the Red Cross, a
practice that was sharply criticized by Maj. Gen. Antonio Taguba in a report
describing abuses of detainees at the Abu Ghraib prison near Baghdad.

Taguba blamed the 800th Military Police Brigade, which guarded the prison, for
allowing "other government agencies"--a euphemism that includes the CIA--to hide
"ghost" detainees at Abu Ghraib. The practice, he wrote, "was deceptive,
contrary to Army doctrine, and in violation of international law." Taguba's
report did not cite the November 18 directive issued by Sanchez to hide Triple
X, identified as a high-ranking terrorist. It is not known if Taguba saw the
directive. He declined to comment. The Army said it could not discuss a
classified order.

The disclosure of Sanchez's involvement may focus more attention on him. There
have been reports that his top Army lawyers sought to curb Red Cross access to
Abu Ghraib, only weeks after the humanitarian agency uncovered abuses and sexual
humiliation at the prison late last year. Some Army officers, including Brig.
Gen. Janis Karpinski, the commander of the 800th MP Brigade, have blamed
Sanchez's staff for refusing to release security detainees from Abu Ghraib even
when they were believed to pose no threat to coalition forces.

Karpinski says Maj. Gen. Barbara Fast, who is Sanchez's top intelligence
officer, was a major obstacle to releasing detainees. Fast, she says, served
with her and a third officer on a detainee release board and vetoed
recommendations to release inmates from the overcrowded facility, even after
determining that they were of no intelligence value. "She did not want to
release the next Osama bin Laden," Karpinski says. "She had a certain kind of
paranoia." Brig. Gen. Mark Kimmitt, the top military spokesman in Iraq, denies
that Fast had veto authority and says most board decisions were unanimous.

Overcrowding, lack of force protection in a hot combat zone, and unsanitary
conditions may have contributed to the problems at Abu Ghraib. Internal Army
records obtained by U.S. News show that the military moved at a snail's pace in
releasing security detainees from Abu Ghraib and three other facilities. In
early December, there were 1,604 detainees kept for more than 91 days. By late
January, that figure had grown to 3,016. An additional 1,500 were kept for more
than two months, the January report shows.

Karpinski didn't see eye to eye with either Sanchez or Fast. She says that
security detainees were held because they were thought to pose a threat to, or
had committed crimes against, coalition forces. But many, she says, should not
have been held for so long. Some weren't guilty of anything, she says, pointing
out that in the wake of the scandal, the military has been releasing large
groups of prisoners from Abu Ghraib. According to various news reports, 1,680
prisoners have been released since May 14.

Some detainees, says Karpinski, "were in the wrong place at the wrong time." She
explains: "MI [military intelligence] would do an initial interrogation, find
out they were passing by, borrowing a cup of sugar, and they get policed up.
They try to explain to somebody that they were only going there to borrow a cup
of sugar, but nobody believed them."

No one is arguing that decisions on releasing detainees were easy. Army officers
point to an embarrassing incident that took place in May 2003: An Iraqi man was
released from Camp Bucca in southern Iraq after convincing an interrogator that
he was a "tomato farmer," but he turned out to be Mohammed Jawad An Neifus,
Saddam Hussein's most loyal tribal leader. Neifus was believed to be responsible
for the deaths of thousands of Shiites, an Army officer says.

Triple X certainly fit the category of a potential threat. Sanchez, in his
directive to the 800th MP Brigade--Fragmentary Order (FRAGO) No. 1099--
identified the man by name, said he was a terrorist, and told the brigade not to
put his name in any electronic roster of detainees. He instructed the brigade
not to disclose his whereabouts to the Red Cross pending further notice,
military sources say.

When the brigade objected, Sanchez's staff lawyers directed the MP s to
implement the order, according to a 25-page report sent to the Senate Armed
Services Committee by Capt. Lisa Weidenbush, operations officer for the 800th MP
Brigade (box). She included only bare-bones information about the FRAGO in
arguing that the brigade was not involved in a scheme to hide detainees. She
declined comment when reached last week.

Beginning last November, the military sources say, Triple X was kept alone,
under guard in his own room, at the High Value Detention facility near the
Baghdad airport. When Red Cross inspectors visited the facility, the military
sources recall, they had no reason to know Triple X was there, and they were not
shown him. Even today, not much is known about the man--he is said to be Middle
Eastern, short, slightly built, and in his 40s.

It is not clear why there was so much secrecy surrounding Triple X. One senior
officer says there were "all these wild rumors" last fall that Triple X might
know the location of Saddam, who had not yet been captured. In the end, however,
only a handful of people knew why he was so valuable, Sanchez included, and
they're not talking.

* * *


Dallas Morning News:

June 12, 2004

AND WHILE WE'RE AT IT, WHO'S RESPONSIBLE?
Deciding how high up the 'failure of leadership' went at Abu Ghraib

By Richard Whittle, The Dallas Morning News

http://www.dallasnews.com/sharedcontent/dws/dn/opinion/sundayreader/stories/0613
04dnsunblame.b9c4b.html

WASHINGTON -- Seven Army Reserve soldiers have been charged with criminal acts
for abusing detainees at Abu Ghraib prison in Iraq. Seven officers have been
disciplined.

But as Army and Pentagon investigations continue into sexual humiliation and
other violations of the Geneva Conventions inflicted on detainees in Iraq and
elsewhere, who to blame is still a matter of conjecture -- or political taste.

"Everyone admits there was a failure of leadership; now you have to decide how
high up that goes," said P.J. Crowley, a former Air Force colonel who was a
spokesman for the Pentagon and the National Security Council under President
Bill Clinton.

Officials including President Bush, Defense Secretary Donald Rumsfeld and the
top generals in Iraq have accepted "responsibility" for what they describe as a
small group of Army reservists run amok. But except for Spec. Jeremy C. Sivits,
24, of the 372nd Military Police Company, no one has accepted any blame.

"I let everybody down," Spec. Sivits said through tears in Baghdad as he pleaded
guilty May 19 to dereliction of duty and three other counts. His crimes: failing
to stop other MPs from abusing prisoners and taking a photo of some of the abuse
at Abu Ghraib on Nov. 8.

The highest-ranking person to face formal consequences in the scandal so far is
one-time prison commander Brig. Gen. Janis Karpinski, who has been suspended
from her 800th Military Police Brigade command while the investigations proceed.

But as the shock waves of the scandal spread, others in the military and
civilian chains of command could pay a price for what they did or didn't do in
connection with the scandal. According to military analysts and political
professionals, here are key figures that bear watching:

Donald Rumsfeld, Secretary of Defense

Leading Democrats are demanding Mr. Rumsfeld's resignation. President Bush has
made clear they aren't going to get it -- at least not by his hand.

Aides to Mr. Bush let it be known he had chastised his defense secretary for
failing to inform him of the explosive nature of the Abu Ghraib investigation.
But Mr. Bush declared that he still wanted him in his Cabinet, and he went to
the Pentagon to proclaim that Mr. Rumsfeld was doing "a superb job."

No one accuses Mr. Rumsfeld of knowing directly what was happening at Abu
Ghraib. He has said he learned of the abuses only when the U.S. Central Command
issued a news release Jan. 16 dully announcing an investigation "into reported
incidents of detainee abuse at a Coalition Forces detention facility."

But critics argue that he set the climate that allowed excesses at Abu Ghraib,
and possibly elsewhere, by devaluing the Geneva Conventions while pressing
subordinates to squeeze useful intelligence out of detainees.

Pentagon officials have confirmed that Mr. Rumsfeld also approved a list of
severe interrogation techniques -- including "mild non-injurious physical
contact," according to The Wall Street Journal -- for use on al-Qaeda captives
held at Guantanamo Bay, Cuba.

But Army officials have testified to Congress that Mr. Rumsfeld played no role
in approving harsh interrogation techniques on a list created by a captain on
the Iraq headquarters legal staff.

The techniques, which included depriving detainees of sleep, forcing them to
hold "stress positions" or threatening them with dogs, were listed on a document
labeled "Interrogation Rules of Engagement." It said such measures could be used
only with the approval of the commanding general, Lt. Gen. Ricardo Sanchez.

Mr. Rumsfeld told congressional committees on May 7 that he had considered
resigning and would if he thought he could no longer be effective. But a few
days later, during a surprise visit to Iraq, he told troops: "I'm a survivor."

How long he will survive politically, or choose to stay, remains in question.

Mr. Bush is unlikely to dump his hard-edged defense secretary, and not just
because he has praised him highly in public.

For one thing, tossing people overboard isn't Mr. Bush's style.

Equally important, Democrats would seize on a Rumsfeld departure as an admission
by Mr. Bush that his policies in Iraq have failed and try to use it to their
advantage in this year's presidential election campaign.

Stephen Cambone, Undersecretary of Defense for Intelligence

Critics have focused on Mr. Cambone, a close aide to Mr. Rumsfeld, as one who
may have set a tone that led to the abuses by pressing for more fruitful
interrogations of detainees. He denies it.

Mr. Cambone told the Senate Armed Services Committee last month that no one ever
issued guidelines or policies that could have been construed as approving the
sordid abuses inflicted at Abu Ghraib by members of the 372nd MP Company.

He also testified that the guidelines for interrogations in Iraq that included
harsh techniques were approved "at the command level and not in the Department
of Defense." A key question is what role Mr. Cambone played in a trip to Abu
Ghraib last August by Maj. Gen. Geoffrey Miller, then commander of the U.S.
detention facility at Guantanamo Bay.

For critics, the trip was pivotal, for Gen. Miller afterward recommended that
MPs be used in "setting the conditions for successful exploitation of the
internees."

Maj. Gen. Antonio Taguba, who initially investigated the Abu Ghraib abuses,
concluded that Gen. Miller's recommendation "would appear to be in conflict"
with Army doctrine holding that MPs should play no role in interrogations.

Mr. Cambone told the Senate committee that Gen. Miller made the trip "with my
encouragement" but not at his direction. With the insurgency in Iraq
intensifying last summer, Mr. Cambone said he was eager to improve the "flow of
information" from interrogators to field units.

Armed Services Committee member Sen. Jack Reed, D-R.I., said he and other
senators still have questions for Mr. Cambone.

Army Lt. Gen. Ricardo Sanchez, commander, Multinational Force, Iraq

Gen. Sanchez told the Senate committee that he approved interrogation procedures
for use in Iraq but that they excluded the harsh measures that appeared on the
Interrogation Rules of Engagement document.

His spokesman in Baghdad also has denied that Gen. Sanchez was present at some
interrogations and witnessed some abuse of prisoners by military police, as
reported by The Washington Post, which cited a statement by a captain who served
at Abu Ghraib, as quoted by a lawyer for one of the MPs facing charges.

Gen. Sanchez also told the committee that he was "fully committed to thorough
and impartial investigations that examine the role, commissions and omissions of
the entire chain of command -- and that includes me."

Last week, Gen. Sanchez removed himself as the "reviewing authority" for what is
viewed as the next key investigation -- a review by Maj. Gen. George Fay, the
Army's top intelligence officer, of the role played in the abuses by military
intelligence officers -- so that he, Gen. Sanchez, can be questioned along with
his subordinates.

After Maj. Gen. Miller's visit to Iraq, Gen. Sanchez accepted his
recommendations and ordered the 205th Military Intelligence Brigade, under Col.
Thomas R. Pappas, to take "tactical control" of Abu Ghraib -- a decision some
critics say directly contributed to the abuses.

Some of the MPs facing criminal charges have said they abused prisoners at the
suggestion of military intelligence officers, who they said encouraged them to
"soften up" detainees for questioning.

Gen. Sanchez testified that his order kept Gen. Karpinski in command of Abu
Ghraib and was intended only to place Col. Pappas in charge of securing the
facility against insurgent attacks and safeguarding prisoners.

Gen. Karpinski, however, has said the prison was no longer under her control
after Col. Pappas took charge, suggesting that Gen. Sanchez's order sowed
confusion that made the abuses possible.

In the meantime, Gen. Sanchez may be the first higher-up to have paid a price
for the scandal, missing out on a fourth star and a chance to take over the U.S.
Southern Command. The Post reported May 25 that he is not expected to get a
promotion while the Abu Ghraib scandal is hot because such positions require
Senate approval.

Pentagon spokesmen have said only that Gen. Sanchez has long been scheduled to
depart Iraq sometime after sovereignty is transferred to Iraqis on June 30.
Bryan Whitman, a senior Pentagon spokesman, said, "At some point, he will rotate
back to being the corps commander in Germany, where he came from."

Maj. Gen. Geoffrey Miller, deputy commander for detainee operations,
Multinational Force, Iraq

Gen. Miller's recommendation that MPs be used in "setting conditions" for
interrogations at Abu Ghraib was criticized by Gen. Taguba in his report and
figures largely in critics' theory that higher-ups established a climate that
led to the abuses.

He told the Senate committee that his recommendation wasn't meant to suggest
that guards be used to soften up prisoners for questioning, but only that they
should engage in "passive intelligence-gathering," passing on to interrogators
their observations of detainees.

Gen. Miller also has denied statements by suspended Gen. Karpinski that he told
her he wanted to "Gitmo-ize" the prison system in Iraq, a reference to
Guantanamo Bay. By presidential decision, detainees there are not legally
entitled to the protections of the Geneva Conventions.

"No methods contrary to the Geneva Convention were presented any time by the
assistance team that I took" to Iraq, Gen. Miller testified. He added that no
interrogation techniques contrary to the Geneva Conventions were used in Cuba,
either.

Similarly, the U.S. spokesman in Baghdad, Brig. Gen. Mark Kimmitt, has denied a
Post report that Gen. Miller urged the top military intelligence officer at the
prison, Col. Pappas, to threaten prisoners with dogs as a means to get them to
talk.

The Post said Col. Pappas told Gen. Taguba during his investigation that Gen.
Miller said "that they used military working dogs at Gitmo ... and that they
were effective in setting the atmosphere for which, you know, you could get
information" from prisoners.

"Miller never had a conversation with Col. Pappas regarding the use of military
dogs for interrogation purposes in Iraq," Brig. Gen. Kimmitt said. "Further,
military dogs were never used in interrogations at Guantanamo."

Answers to some of the questions surrounding these key figures should be
contained in the Fay report, expected to be complete next month.

[ E-mail rwhittle@dallasnews.com ]

* * *


The Guardian (UK):

June 12, 2004

A TORTURER'S CHARTER
Secret documents show that US interrogators are above the law

Richard Norton-Taylor, The Guardian

http://www.guardian.co.uk/comment/story/0,3604,1237217,00.html

On the stage of a London theatre on Thursday night, a lawyer held up an official
US document, classified by Donald Rumsfeld as "secret" and "not for foreign
eyes". Considering its contents, the document has attracted remarkably little
attention here since it was leaked this week to the US media. Its significance
was raised by Clive Stafford-Smith, director of the US-based group Justice in
Exile, at the end of a performance of Guantanamo, the Tricycle Theatre's moving
indictment of how the US rounded up detainees - or "unlawful combatants", as it
calls them - and sent them to the US base in Cuba.

Stafford-Smith is acting for some of the Guantanamo prisoners, challenging the
conditions in which they are being held. The US supreme court is expected to
give its ruling before the end of this month. Rumsfeld's classified document,
drawn up by US government lawyers, bears directly on the case. It argues that
American interrogators can ignore US domestic law banning torture, because it
would restrict the president's powers in his "war on terror".

The document, drawn up last year, says that "criminal statutes are not read as
infringing on the president's ultimate authority" over "the conduct of war". It
adds: "In order to respect the president's inherent constitutional authority to
manage a military campaign, [the prohibition of torture] must be construed as
inapplicable to interrogators undertaken pursuant to his commander-in-chief
authority".

Constitutionally, America's founding fathers entrusted the president with the
primary responsibility, and therefore the power, to ensure the security of the
US in situations of "grave and unforeseen emergencies". It goes on: "Numerous
presidents have ordered the capture, detention, and questioning of enemy
combatants during virtually every major conflict in the nation's history,
including recent conflicts in Korea, Vietnam and the Persian Gulf". And it
continues: "Congress can no more interfere with the president's conduct of the
interrogation of enemy combatants than it can dictate strategy or tactical
decisions on the battlefield."

The lengths to which Rumsfeld's lawyers are prepared to go to protect the
freedom of the president's agents and place them above the law are reflected in
other passages.

The document states that US interrogators can use harsh measures as long as they
were not "specifically intended" to inflict "severe mental pain or suffering".
In another passage, it says that even if an interrogator "knows that severe pain
will result from his actions, if causing harm is not his objective, he lacks the
requisite specific intent."

Interrogators can appeal to the defence of "necessity" - in other words, they
can argue that torturing individuals is needed to prevent greater harm or evil
such as threats to the safety of the nation. And the concept of "self-defence"
is given the widest possible interpretation, referring to the nation rather than
any individual.

The document, on the face of it, is a charter allowing the US president to abuse
human rights and ignore domestic as well as international law.

Stafford-Smith yesterday pointed to what he called its most outrageous argument
- namely, that domestic law does not apply to actions inside the US. Torture can
be committed inside the US.

The Pentagon's lawyers describe Guantanamo Bay as "included within the
definition of the special maritime and territorial jurisdiction of the US and
accordingly is within the US". They add: "Thus, the torture statute does not
apply to the conduct of US personnel" at Guantanamo Bay.

The apparent non sequitur is based on the argument that the statute is confined
to actions outside the US - in other words, that torture is not banned within
the US. Yet this directly contradicts claims made by other US government lawyers
who insist Guantanamo Bay detainees have no rights under US law. The naval base,
they insist, is not US sovereign territory so the detainees do not have such
basic rights as access to a fair trial.

The issue is now before the US supreme court. If the detainees win this
argument, it could lead the way to at least some kind of judicial process,
including the testing of evidence. But whatever Guantanamo Bay's territorial
status, according to the Rumsfeld document, detainees there and anywhere else
can be tortured at will in Bush's global "war" on terrorism.

"The authorisation I issued was that anything we did would conform to US laws
and would be consistent with international treaty obligations," Bush said this
week. Little comfort there.

[ Richard Norton-Taylor is the Guardian's security affairs editor

richard.norton-taylor@guardian.co.uk ]

* * *


Las Vegas Review-Journal:

June 10, 2004

MEMO PUTS FOCUS ON NEVADA JUDGE

By Steve Tetreault, Stephens Washington Bureau

http://www.reviewjournal.com/lvrj_home/2004/Jun-10-Thu-2004/news/24075171.html

WASHINGTON -- A legal memo that advised the White House that torturing al-Qaida
captives "may be justified" in the war on terror has focused attention on Jay
Bybee, a Nevadan who signed the document as a top Justice Department adviser in
2002.

Bybee, a former professor at the UNLV Boyd School of Law, headed a team that
provided legal guidance to the Bush administration on a range of issues,
including its course in pursuing terrorists and those with potential knowledge
of the Sept. 11, 2001 terrorist attacks.

An authority on constitutional and administrative law, Bybee, 50, returned to
Las Vegas last year as a judge on the 9th U.S. Circuit Court of Appeals. He was
confirmed by the Senate on a 74-19 vote on March 13, 2003, after being proposed
by Sen. John Ensign, R-Nev., and nominated by President Bush.

Bybee did not respond to requests for an interview. A secretary at Bybee's Las
Vegas office said the judge was unavailable Wednesday.

Bybee's signature on a controversial 50-page memo was reported on Tuesday after
being obtained by The Washington Post. Bybee was assistant attorney general and
chief of the Office of Legal Counsel.

It was among several internal Bush administration documents from 2002 and 2003
that have been leaked to the media in recent days that appear to discuss new
legal limits for aggressive interrogations of prisoners suspected of al-Qaida
and Taliban ties.

The memo signed by Bybee said international laws against torture "may be
unconstitutional if applied to interrogations" conducted during terrorism
investigations of overseas captives, according to The Post.

Unlike Army regulations that set more restrictive rules, the Justice memo said
for treatment to be considered torture, it "must be equivalent in intensity to
the pain accompanying serious physical injury, such as organ failure, impairment
of bodily function, or even death," the newspaper reported.

Beyond news reports, the Justice Department document has not circulated widely
and a copy could not be obtained on Wednesday.

Members of the Senate Judiciary Committee challenged Attorney General John
Ashcroft on the issue Tuesday, but he refused to release the policy memo,
describing it as confidential advice to President Bush.

Ashcroft said that no matter what the memo advised, Bush has not authorized
torture of terrorist suspects.

Sen. Harry Reid, D-Nev., who helped Bybee obtain posts in the Justice Department
and in the federal judiciary, said he disagreed with the memo. "I don't think
torture is appropriate at any time," he said.

But Reid said he would not comment on Bybee, saying the Nevadan's involvement
was not clear.

"I don't know how it was written, if somebody told him to write it or what,"
Reid said. "The fact of the matter is, he's got a lifetime appointment so
there's nothing that can be done about it."

Ensign was looking into the matter and was not prepared to talk about it on
Wednesday, spokesman Jack Finn said.

Researchers for judicial watchdog groups and former colleagues of Bybee said
Wednesday the Nevadan had not written extensively about terrorism or
international treaty obligations during his academic career.

But several of his law review articles argued in favor of a strong presidency, a
theme that appeared consistent with the tone of the interrogation memo as it was
conveyed in news reports, they said.

Lynne Henderson, a constitutional law professor and former Bybee colleague at
the Boyd School of Law, expressed dismay.

Bybee's signature on the memo means "the buck stops with him," Henderson said.

"I would have thought he would have been a little more cautious and thoughtful,"
Henderson said. "It is very easy for any of us looking at terrorism and how
devastating it is to lose perspective, but it's not excusable to provide
rationales to extract information from presumed al-Qaida operatives and to twist
the language regarding torture."

Another former Boyd School colleague, Carl Tobias, said much was still not clear
in his view.

"None of the reports I saw talked about who generated the document and to what
purpose. None of that is clear," said Tobias, who now teaches at the University
of Richmond.

Senators should have checked Bybee more thoroughly before placing him on the
federal bench, said Nan Aron, president of Alliance for Justice, a liberal group
that had opposed the Nevadan's confirmation.

The organization had criticized Bybee as holding views out of the legal
mainstream when it came to states rights and limits on congressional powers.

[ Review-Journal writer Brian Haynes contributed to this report. ]

* * *


Los Angeles Times:

June 10, 2004

LAWYERS ASCRIBED BROAD POWER TO BUSH ON TORTURE

* In a memo dated weeks after the invasion of Iraq, administration counsel said
the president's authority superceded Congress'.

By David G. Savage and Richard B. Schmitt, Times Staff Writers

http://www.latimes.com/la-na-torture10jun10,1,2130225.story

WASHINGTON -- On the eve of the war in Iraq, Bush administration lawyers spelled
out a strikingly broad view of the president's power that freed the commander in
chief and U.S. military from the federal law and international treaties that
barred the use of torture.

In past wars, presidents have claimed special powers. During the Civil War,
President Lincoln suspended habeas corpus and allowed accused traitors to be
tried before military courts. Shortly after the Japanese attack on Pearl Harbor,
President Franklin D. Roosevelt issued an order authorizing the military to
intern thousands of Japanese Americans.

--------------------------------------------------------------------------------
FOR THE RECORD: Memo about torture --A headline on a news analysis in Thursday's
Section A about a legal memo written for the Defense Department on President
Bush's powers regarding the use of torture in war said the memo was dated weeks
after the invasion of Iraq. The memo was dated March 6, 2003, two weeks before
the start of the war.
--------------------------------------------------------------------------------

In those instances, however, the president acted with the approval of Congress.
Rarely, if ever, have the president's advisors claimed an authority to ignore
the law as written by Congress.

The legal memo, written last year for the Defense Department and disclosed this
week, did not speak for President Bush, but it claimed an extraordinary power
for him. It said that as the commander in chief, he had a "constitutionally
superior position" to Congress and an "inherent authority" to prosecute the war,
even if it meant defying the will of Congress.

Congress adopted an anti-torture law in 1994 that barred Americans abroad acting
under U.S. authority from inflicting "severe physical or mental pain."

But the 56-page memo on "Detainee Interrogation in the Global War on Terrorism"
maintains that the president and his military commander cannot be restrained in
this way.

"Congress lacks authority ... to set the terms and conditions under which the
president may exercise his authority as commander in chief to control the
conduct of operations during a war," the memo asserts. "Congress may no more
regulate the president's ability to detain and interrogate enemy combatants than
it may regulate his ability to direct troop movements on the battlefield.
Accordingly, we would construe [the law] to avoid this difficulty and conclude
that it does not apply to the president's detention and interrogation of enemy
combatants."

The memo was dated March 6, 2003, two weeks before the start of the war in Iraq.
In earlier memos, administration lawyers said the president could designate even
American citizens arrested within the United States as "enemy combatants," and
thus theoretically subject them to torture.

But according to several mainstream legal scholars, this turns the Constitution
on its head. The 18th century document says Congress makes the laws, and the
president has the duty to carry them out.

"He shall take care that the laws be faithfully executed," the Constitution says
of the president.

Moreover, the Constitution grants Congress specific powers to set the rules in
war and peace, including for captives.

"Congress shall have the power ... to declare war and make rules concerning
captures on land and water ... to define offenses against the law of nations
[and]
to make rules for the government and regulation of the land and naval forces."

A broad range of legal experts, including specialists in military law, say they
were taken aback by this bald assertion of presidential supremacy.

"It is an extraordinary claim. It is as broad an assertion of presidential
authority as I have ever seen," said Michael Glennon, a war law expert at Tufts
University. "This is a claim of unlimited executive power. There is no reason to
read the commander-in-chief power as trumping the clear power of Congress."

University of Texas law professor Douglas Laycock added, "It can't be right. It
is just wrong to say the president can do whatever he wants, even if it is
against the law."

Veteran military lawyers also said they were surprised and dismayed by the memo.

"It's an argument I have never seen made before -- that the commander in chief's
war-fighting powers trump the restrictions in the Geneva Convention," said Grant
Lattin, a former judge advocate for the Marines who practices military law in
Virginia. "I am having a difficult time even following the logic, that somehow
because this is a new type of war that these military commanders' authority has
somehow grown larger than the restrictions that we have accepted in the Geneva
Convention."

Retired Rear Adm. John Hutson, the former judge advocate general for the Navy,
said the memo read as though the lawyers were trying to bend the law to benefit
their client, rather than stating the law fairly and accurately.

"That is not the job of people advising the president or the attorney general or
the secretary of Defense. They have to be right legally, and I think they have
an obligation to be right morally. I think they failed on both counts," said
Hutson, now dean of the Franklin Pierce Law Center in Concord, N.H.

"The argument proves too much," he added. "If the president's inherent authority
as commander in chief trumps domestic and international law, where is the limit?
If every sovereign can ignore the law, then no one is bound by it."

It is not clear who wrote the memo or what effect it had. This week,
administration officials, including Atty. Gen John Ashcroft, insisted that U.S.
officials did not condone or authorize the use of torture. They characterized
the memo as a view presented by lawyers in the administration that was not put
into practice.

In 2002, the Justice Department's Office of Legal Counsel took the lead in
arguing for a broad view of presidential authority in the war on terrorism. The
same office contributed to the Pentagon's "working group" memo.

The office was led by two conservative law professors, Jay S. Bybee and John C.
Yoo. They wrote the key memos declaring the Geneva Convention did not apply to
accused terrorists, the Taliban or other detainees who were held at the U.S.
naval base at Guantanamo Bay, Cuba.

They also said the president had the power to arrest and hold in military
custody American citizens who were deemed to be "enemy combatants." The
administration cited this authority as the basis for holding Jose Padilla, an
accused terrorist who was arrested at Chicago's O'Hare Airport.

The Supreme Court is considering Padilla's case and is expected to rule on it
before the end of June.

Bybee and Yoo have left the government. Bush nominated Bybee as a judge on the
U.S. 9th Circuit Court of Appeals in San Francisco, and March 14, 2003, he won
confirmation by the Senate. Yoo, a former clerk to Supreme Court Justice
Clarence Thomas, has returned to his position as a law professor at UC Berkeley.

The Pentagon's legal working group was chaired by the Defense Department's
general counsel, William J. Haynes II. He too has been nominated to be an
appellate judge, in the U.S. 4th Circuit in Richmond, Va.

In March, the Republican-controlled Senate Judiciary Committee narrowly approved
his nomination, but he has not been brought up for a final vote in the Senate.

A year ago, Haynes told Sen. Patrick J. Leahy (D-Vt.) that he and the Pentagon
opposed any use of torture.

"We can assure you that it is the policy of the United States to comply with all
of its legal obligation in its treatment of detainees," he said in a letter
citing the Geneva Convention and the anti-torture law. "The United States does
not permit, tolerate or condone any such torture by its employees under any
circumstances."

The letter, dated June 25, 2003, came three months after the secret memo argued
that the president could employ the use of torture if he chose to do so.

* * *


Seattle Post-Intelligencer:

June 10, 2004

LAWMAKERS URGE PENTAGON TO PROBE TREATMENT OF MUSLIM CHAPLAIN

http://seattlepi.nwsource.com/local/aplocal_story.asp?category=6420&slug=
Muslim%20Chaplain

WASHINGTON (AP) -- Four Democratic members of Congress are calling on the
Pentagon to investigate the Army's treatment of a Muslim chaplain who was
suspected of espionage and imprisoned for 76 days before all charges were
dropped.

The Army's decision to drop all charges against Capt. James Yee "raises
important questions about the strength and legitimacy of initial assertions by
Army officials that Capt. Yee had engaged in espionage and treasonous conduct at
Guantanamo Bay, Cuba," Rep. Adam Smith, D-Wash., and three other House members
said in a letter to the Pentagon's inspector general.

The June 4 letter was also signed by Reps. Mike Honda, D-Calif., Ike Skelton, D-
Mo., and Vic Snyder, D-Ark. Skelton is senior Democrat on the House Armed
Services Committee, while Snyder and Smith serve on the panel.

The letter follows an April 23 request by Democratic Sens. Carl Levin of
Michigan and Edward Kennedy of Massachusetts for a Pentagon investigation of the
case.

Yee, 35, has returned to his home base of Fort Lewis, Wash., after a general
overturned an adultery and pornography reprimand - the one remaining blemish on
his record after the dismissal of criminal charges. He was targeted in an
investigation of suspected espionage at the Guantanamo Bay detention camp in
Cuba, where the military is holding suspected Islamic terrorists.

A Pentagon spokeswoman declined to comment Thursday.

* * *


San Diego Union-Tribune --

June 10, 2004

TITAN NAMED IN SUIT OVER IRAQI PRISONER TREATMENT

By David Washburn and Bruce V. Bigelow, Union-Tribune Staff Writers

http://www.signonsandiego.com/news/business/20040610-9999-1b10titan.html

A human rights group sued San Diego's Titan Corp. and another defense contractor
in federal court yesterday, alleging that the companies conspired to torture
Iraqi prisoners to win more business.

The highly unusual class-action lawsuit, filed in U.S. District Court in San
Diego, cites violations of the Racketeer Influenced and Corrupt Organizations
Act, various other U.S. laws and the Geneva Conventions.

Titan is providing translators and interpreters in Iraq as part of a $657
million contract with the U.S. Army. Also named in the suit is Virginia-based
CACI International, which supplies interrogators to American units.

"(The suit) alleges that there were war crimes and they were complicit," said
Jeffrey Fogel, a lawyer with the Center for Constitutional Rights, the group
that filed the suit.

The New York-based center brought the suit on behalf of hundreds of Iraqis held
by American forces at various detention centers, including the now-infamous Abu
Ghraib prison near Baghdad.

Officials from both Titan and CACI called the suit baseless, saying the
government has filed no charges against either company.

"We believe this lawsuit is frivolous, and we will defend against it
vigorously," Titan spokesman Wil Williams said.

A statement from CACI expressed indignation that an organization created to
defend constitutional rights could file such an "irresponsible" suit. "CACI
regards these allegations as false and malicious," the statement read.

The two companies have been under scrutiny since late April, when an Army report
implicated employees in the abuse and torture of Iraqis at Abu Ghraib. The
timing could not have been worse for Titan, which already was struggling to
complete a multibillion-dollar merger with Lockheed Martin.

Last month, the Justice Department announced a criminal investigation into the
actions of civilian contractors in Iraq. On the same day, Titan fired Adel L.
Nakhla, a linguist identified as a suspect in the Army report.

Legal scholars said the lawsuit represents an unprecedented attempt to hold
civilian contractors accountable for their actions during war.

Civil claims have been filed to redress war crimes before, but it is a
relatively new legal concept, said H. Wayne Elliott, a retired Army judge
advocate who taught the law of war to U.S. soldiers and military lawyers for
years.

Still, Elliott said, "I don't think there's any precedent for this. There's no
case that I can think of where a U.S. company was sued civilly for a violation
of the law of war."

The Center for Constitutional Rights has, since the 1960s, filed human rights
cases on behalf of individuals and organizations throughout the world. Several
of its cases have reached the U.S. Supreme Court.

In 1980, the Center won Filartiga v. Pena-Irala, which created a right to sue
for human rights violations occurring anywhere in the world under the then-
obscure Alien Tort Claims Act, according to the Center's Web site.

Yesterday's suit alleges that Titan and CACI were part of a criminal conspiracy
with U.S. officials in Iraq. By engaging in the torture of Iraqis, the suit
says, the companies hoped to improve their chances to win more military
contracts.

"Torture Conspirators," according to the suit, engaged in crimes that go far
beyond what has previously been reported. The alleged crimes include, among
other things, murder, rape and applying electric charges to sensitive body
parts.

Titan and CACI have become increasingly dependent on defense contracts, the suit
says, and the companies invested heavily to build up their respective businesses
providing interpretation, interrogation and intelligence gathering services.

As a result, the suit alleges, keeping the military supplied with information
became increasingly important to both companies.

To win the suit, legal experts said, the center's lawyers would need to prove
that Titan and CACI established a pattern and practice of illegal acts.

In most cases involving the law known as RICO, federal prosecutors cite a series
of criminal offenses, such as drug crimes, extortion and fraud, to show a
conspiracy, said Charles LaBella, a former U.S. Attorney in San Diego who is
familiar with RICO.

It's unclear how the facts arising from the Iraqi prisoner abuse scandal would
fit such legal requirements, legal experts said. Equally unclear, they said, was
whether the RICO statute applies to activities overseas.

"It's going to be for the courts to decide if RICO is the appropriate vehicle to
address those wrongs and even if the federal courts are the appropriate forum to
address those wrongs," LaBella said.

Other experts said it may be difficult to apply the civil RICO law to the case
because plaintiffs will have to prove that the victims suffered "injury to
business or property."

Legal scholars said the more-logical law used in the case is the 1789 Alien Tort
Claims Act, which gives U.S. courts jurisdiction to hear cases brought by non-
U.S. citizens for events outside the United States.

Human rights groups have turned increasingly to this law to hold multinational
corporations liable for human rights abuses, legal experts said.

Elliott, the retired Army judge advocate, said the use of the Geneva Conventions
seems less applicable.

"The Geneva Conventions are concerned with state-to-state conduct," Elliott
said. "I can't think of any place where they even address how an individual or a
company might violate the law of war."

Jesse H. Choper, a specialist in constitutional law at U.C. Berkeley's Boalt
School of Law, agreed.

"If you allege violations of the Geneva Convention, they are war crimes, but
that is a relatively far-out claim," Choper said.

 David Washburn: (619) 542-4582; david.washburn@uniontrib.com

* * *


Los Angeles Times:

June 9, 2004

Prison Interrogators' Gloves Came Off Before Abu Ghraib
By Richard A. Serrano, Times Staff Writer

http://www.latimes.com/news/nationworld/world/la-fg-prison9jun09,1,3173753.story

WASHINGTON -- After American Taliban recruit John Walker Lindh was captured in
Afghanistan, the office of Defense Secretary Donald H. Rumsfeld instructed
military intelligence officers to "take the gloves off" in interrogating him.

The instructions from Rumsfeld's legal counsel in late 2001, contained in
previously undisclosed government documents, are the earliest known evidence
that the Bush administration was willing to test the limits of how far it could
go legally to extract information from suspected terrorists.

The Pentagon and Congress are now investigating the mistreatment of inmates at
Abu Ghraib prison in Iraq in late 2003 and trying to determine whether higher-
ups in the military chain of command had created a climate that fostered
prisoner abuse.

What happened to Lindh, who was stripped and humiliated by his captors,
foreshadowed the type of abuse documented in photographs of American soldiers
tormenting Iraqi prisoners at Abu Ghraib.

At the time, just weeks after the Sept. 11 terrorist attacks, the U.S. was
desperate to find terrorist leader Osama bin Laden. After Lindh asked for a
lawyer rather than talk to interrogators, he was not granted one nor was he
advised of his Miranda rights against self-incrimination. Instead, the Pentagon
ordered intelligence officers to get tough with him.

The documents, read to The Times by two sources critical of how the government
handled the Lindh case, show that after an Army intelligence officer began to
question Lindh, a Navy admiral told the intelligence officer that "the secretary
of Defense's counsel has authorized him to 'take the gloves off' and ask
whatever he wanted."

Lindh was being questioned while he was propped up naked and tied to a stretcher
in interrogation sessions that went on for days, according to court papers.

In the early stages, his responses were cabled to Washington hourly, the new
documents show.

A Defense Department spokesperson said Tuesday evening that the Pentagon
"refused to speculate on the exact intent of the statement" from Rumsfeld's
office to the military authorities interrogating Lindh.

"Department officials stress that all interrogation policies and procedures
demand humane treatment of personnel in their custody," the spokesperson said.
"The department is committed to searching further to ascertain the original
source of the comment brought to their attention by The Times."

Lindh, who pleaded guilty in return for a 20-year federal prison sentence for
aiding the Taliban, was a young Northern California Islamic convert who joined
the Taliban army before Sept. 11, attended a terrorist training camp in
Afghanistan and was captured soon after U.S. troops invaded the country.

While Lindh was being interrogated in Afghanistan and later aboard a ship,
senior Bush administration officials were strategizing on how to handle other
prisoners being rounded up in Afghanistan, with an eye toward flexibility in
interrogating them.

In a series of memos from late 2001 to early 2002, top legal officials in the
administration identified the U.S. naval base at Guantanamo Bay, Cuba, as a safe
haven offshore that would shield the secret interrogation process from
intervention by the U.S. judicial system.

The memos show that top government lawyers believed the administration was not
bound by the Geneva Convention governing treatment of prisoners because "Al
Qaeda is merely a violent political movement or organization and not a nation-
state" that had signed the international treaty.

However, the memos also show that Secretary of State Colin L. Powell warned the
White House that a tougher approach toward interrogation "will reverse over a
century of U.S. policy and practices in supporting Geneva Conventions and
undermine the protections of the law of war for our troops, both in this
specific conflict and in general."

The tenor of these administration memos on the handling of prisoners in the
earliest stages of the U.S.-declared war on terrorism was similar to a legal
"working paper" by administration lawyers in March 2003. It concluded that the
president had the authority to allow any interrogation tactics that he thought
would protect the American public, including torture, according to government
documents. The Pentagon this week said that the paper was part of an internal
administration debate and was not a policy that was carried out.

In the Iraq war that began in March 2003, administration officials said that the
military would abide by the Geneva Convention. But in January of this year, a
dismayed U.S. military guard turned over photographs depicting physical abuse
and humiliation of inmates at Abu Ghraib.

Six Army prison guards are awaiting courts-martial in the Abu Ghraib scandal. A
seventh has pleaded guilty.

The Pentagon, although condemning the behavior, has blamed it on a handful of
low-level soldiers violating Army regulations. But the Department of Defense and
the Senate Armed Services Committee are investigating how high up in the chain
of command responsibilities for the abuses lie.

In the case of Lindh, U.S. intelligence officers first tried to interrogate him
on Nov. 25, 2001, after he and other Taliban soldiers were captured by U.S.
allies known as the Northern Alliance and taken to the town of Mazar-i-Sharif.
There, CIA agent Johnny "Mike" Spann used an interrogation tactic of warning
Lindh that he might die.

According to a video aired days after Lindh's capture, Spann asked him, "You
believe in what you're doing here that much, you're willing to be killed here?"

Another CIA officer, identified as Dave Tyson, told Spann within Lindh's hearing
that "he's got to decide if he wants to live or die, and die here. We're just
going to leave him, and he's going to ... sit in prison the rest of his ...
short life. It's his decision."

Lindh, then 20, did not respond. Shortly after, an uprising broke out. Spann was
killed -- the first U.S. fatality of the war -- and Lindh was shot in the leg.

Lindh was recaptured, and over a series of interrogations -- at a school at
Mazar-i-Sharif, at Camp Rhino in Afghanistan and aboard a Navy ship -- he was
kept in harsh conditions, stripped and tied to a stretcher, and often held for
long periods in a large metal container, the government and defense agreed
during his legal battle.

In court hearings and legal papers, his attorneys complained that he was
deprived of sleep and food, that his leg wound was not treated, and that for 54
days he was neither allowed legal assistance nor told that his father had
retained lawyers on his behalf in San Francisco.

Lindh's lawyers declined to comment on the matter this week, noting that a
provision of his 2002 plea agreement stated he would not bring up the conditions
under which he was held overseas.

The military, in contrast, has maintained in previous court documents that Lindh
was treated well and that he was read his rights under the Miranda law against
self-incrimination.

But the new records raise new questions.

According to the government documents, when Lindh was first under interrogation
at the schoolhouse, authorities realized that as an American he was drawing the
attention of the Defense and Justice departments. There was some initial
discussion of whether Lindh, as an American, should be advised of his right
against self-incrimination before military intelligence officers talked to him.

One Army intelligence officer said in the documents that he had been advised
that "instructions had come from higher headquarters" for interrogators to
coordinate with military lawyers about Lindh.

"After the first hour of interrogation, [the interrogator] gave the admiral in
charge of Mazar-i-Sharif a summary of what the interrogators had collected up to
that point," the documents say. "The admiral told him at that point that the
secretary of Defense's counsel has authorized him to 'take the gloves off' and
ask whatever he wanted."

The Army intelligence officer responded that if a "criminal investigator" wanted
to later question Lindh, "that was fine."

But in the meantime, the officer said, he was "interested in tactical
information. He was in the business of collecting [intelligence] information,
not in the business of Mirandizing."

The officer did ask to be faxed a Miranda form, according to the documents, "but
he never got it. He never gave Lindh a Miranda warning."

Rumsfeld's legal counsel is not named in the documents. The office was headed by
William J. Haynes II.

On Dec. 14, 2001, Haynes' deputy, Paul W. Cobb Jr., told Lindh's San Francisco
lawyers that "our forces have provided him with appropriate medical attention
and will continue to treat him humanely, consistent with the Geneva Convention
protections for prisoners of war."

But court documents suggest that Lindh was treated much as the prisoners later
were at Abu Ghraib. Along with nudity and the sleep and food deprivation, Lindh
was allegedly threatened with death. One soldier said he "was going to hang."
Another "Special Forces soldier offered to shoot him."

At other times, soldiers took photos and videos of themselves smiling next to
the naked Lindh, another image eerily similar to the Abu Ghraib photos.

Such actions appear to be in violation of the Geneva Convention, which requires
that prisoners have adequate clothing, food and sleep and not be threatened or
subjected to degrading treatment.

As the interrogation of Lindh was going on, officials in Washington were
privately working out details for handling other prisoners from Afghanistan.

On Dec. 28, 2001, John Yoo, then deputy assistant attorney general, told Haynes
at the Pentagon that Guantanamo Bay was a perfect place for detainees because it
was not a part of the sovereign United States and therefore not subject to the
federal courts. But, Yoo cautioned, "there remains some litigation risk that a
district court might reach the opposite result."

The holding of prisoners at Guantanamo Bay without charge or a court hearing has
been challenged by several defense lawyers, and the U.S. Supreme Court is
expected to rule this month on whether the government went too far.

* * *

Los Angeles Times:

June 9, 2004

IT'S THE LAW -- EVEN IN WAR

* The U.S. must abide by the Geneva Convention because compliance is in its
interest -- and because it's right.

By Allen S. Weiner

http://www.latimes.com/news/printedition/opinion/la-oe-
weiner09jun09,1,1572071.story

"No country integrates the laws of war into its operational military planning
better or more systematically than the United States."

This is an assertion I made many times during the decade I represented the U.S.
government as a career State Department lawyer.

I defended the U.S. acceptance of, and obedience to, the international law of
armed conflict most vociferously in 2000, after the chief prosecutor of the
International Criminal Tribunal for the Former Yugoslavia announced to the press
that she was reviewing allegations that NATO forces had committed war crimes
during the 1999 bombing campaign in the Balkans.

I urged prosecutors at the war crimes tribunal not to give unwarranted credit to
allegations that U.S.-led NATO forces had violated the laws of war; at the same
time, I sought to assure U.S. military personnel and policymakers that the
United States would not only withstand scrutiny by the war tribunal's
prosecutors but would be vindicated by it.

My arguments were based not merely on a lawyer's duty to defend his client.
Rather, I spoke from a genuine belief -- built upon years of experience -- that
the American military was committed to minimizing the most barbaric aspects of
war by respecting the basic humanitarian protections embodied in the laws of
war.

This is why each of the revelations that has emerged over the last six weeks
regarding the military's treatment of detainees in Iraq, Afghanistan and
Guantanamo Bay, Cuba, has left me feeling betrayed.

As shocking as the photographs were from Abu Ghraib prison, perhaps more galling
for me as a former executive branch lawyer was the claim attributed to one of
the alleged participants that he had to learn about the 1949 Geneva Convention
on his own by searching the Internet. How could the U.S. Army -- my army, which
I know to be characterized by honor and integrity -- ask soldiers to detain and
interrogate prisoners of war without training them in the fundamental rules that
apply?

Now we've learned that this was more than just a breakdown in a particular
military command in Iraq. White House Counsel Alberto Gonzales, in a memorandum
drafted for President Bush, declared -- with only a thin fig leaf of legal
analysis -- that the nature of the war against terrorism simply rendered the
Geneva Convention "obsolete." And the Wall Street Journal reported this week
that, as recently as March of this year, executive branch lawyers advised
Secretary of Defense Donald H. Rumsfeld that U.S. personnel were effectively
exempt from international treaties and U.S. laws prohibiting torture. The
theory? That law prohibiting torture "must be construed as inapplicable" to
interrogations conducted pursuant to the president's wartime commander-in-chief
authorities.

In other words, notwithstanding this country's longtime commitment to democracy
and rule of law, the president and those acting on his behalf in times of war
are above the law.

That's a stunning conclusion. It is also wrong. The restraints of law do not
disappear in armed conflict, whether it is traditional combat or the kind of
asymmetric struggle against terrorism in which the United States is now engaged.
The U.S. has long accepted the notion that law applies even in war. We should
continue to do so now.

The U.S., through its democratic processes, freely agreed to comply with the
restraints on torture and mistreatment of prisoners of war embodied in the
Geneva Convention (in 1956) and the Convention Against Torture (in 1994), as
have many, many other countries.

That's a meaningful commitment; as Justice Hugo Black once wrote, "Great
nations, like great men, should keep their word."

Compliance with international laws of war, moreover, advances a number of
important American interests. Most important, international law is based on
reciprocity. If the U.S. determines that the laws of war do not apply to our
adversaries, it undermines the sanctity of those protections and increases the
chances that our adversaries -- in the conflicts not only of today but of
tomorrow -- will ignore them as well.

Because there is no central global authority to compel compliance with
international law, the system depends on voluntary compliance by countries. In a
world of hardheaded realism, an American policy of disregard for international
law in the interest of short-term expediency removes the principal incentive for
our partners to abide by their promises to us, not only regarding the treatment
of prisoners but in all the fields in which international law advances American
interests.

As no less a realist than Henry Kissinger once observed, the U.S. "is convinced
in its own interest that the extension of legal order is a boon to humanity and
a necessity."

Finally, even in times of war, the U.S. should scrupulously apply international
rules prohibiting torture and mistreatment of prisoners of war not only because
it is in its geopolitical interest to do so but because it is right.

These humanitarian principles reflect profound American ideals celebrating the
dignity of the individual against abuses by the state. Upholding these values,
even in times of great national crisis, would reflect the beliefs that have
inspired American foreign policy since the time of Woodrow Wilson.

By keeping the promises we made when we became a party to the Geneva Convention
and the Convention Against Torture, the United States can instill in its
citizens a sense of pride in its government, and not a sense of betrayal.

[ Allen S. Weiner is a law professor at the Stanford Institute for International
Studies and Stanford Law School. From 1990 to 2001 he was an attorney in the
State Department. ]

* * *


Charleston Post and Courier:

June 9, 2004
HAMDI'S TREATMENT IN BRIG WORRIES FATHER
By Tony Bartelme, The Post and Courier Staff

http://www.charleston.net/stories/060904/ter_09hamdi.shtml

For Esam Hamdi, the Iraqi prison scandal has been particularly troubling.

Hamdi's 23-year-old son, Yaser, has been held in military custody since November
2001, when he was captured with a Taliban unit in Afghanistan.

His son has seen the insides of at least five U.S. detention and interrogation
facilities, including the Navy's brig in Hanahan, where he is now being held.

"Do you think what happened in Iraq can happen to Yaser?" the elder Hamdi asked
Friday during a telephone interview from his home in Saudi Arabia.

"I hope that he is not being mistreated like the Iraqi people in Abu Ghraib
jail," he said. "I'm worried, but I also trust that because Yaser is an American
and in an American jail, he is being treated well."

UNIQUE PERSPECTIVE

The elder Hamdi was working for a U.S. petrochemical company in the early 1980s
when his son, Yaser, was born. The family moved back to Saudi Arabia three years
later.

The Bush administration has held Yaser Hamdi incommunicado for more than 2-1/2
years. Two other terrorism detainees also are in the Hanahan brig: Jose Padilla,
the alleged "dirty bomber," and Ali Saleh al-Marri, who the government believes
was an al-Qaida sleeper cell operative.

The administration deems all three "enemy combatants" and maintains they can be
held without criminal charges and access to lawyers, a policy that many civil
and human rights groups say is unconstitutional.

The Supreme Court is now reviewing Hamdi's and Padilla's cases. The court heard
oral arguments from the government and the detainees' lawyers April 28, the same
day CBS' "60 Minutes II" first aired photos of grinning U.S. soldiers sexually
humiliating Iraqi prisoners.

The court is expected to rule by month's end, a decision that legal scholars say
will help define the limits of presidential power in the struggle against global
terrorism.

From his home in the seaside city of Jubail, Saudi Arabia, the elder Hamdi has
been waiting for news about the Supreme Court's decision and what it might mean
for his son. The photos from Iraq haven't made the wait any easier. "Everyone in
our family is concerned," he said.

His son has a unique perspective on the U.S. military detention and
interrogation system.

A Post and Courier investigation earlier this year revealed that Hamdi left his
home in Saudi Arabia during the summer of 2001 during a college break. He
traveled to Afghanistan and ended up in a basement of a fortress with another
American citizen, John Walker Lindh.

Flushed out by troops with the Northern Alliance, Hamdi, Lindh and more than 80
other captives were taken to a detention center in Sherbeghan, Afghanistan, then
another in Kandahar. Human rights groups have received reports of prisoners
being tortured in both prisons.

Hamdi later was transferred to the detention and interrogation camp in
Guantanamo, Cuba, along with more than 600 other detainees. In April 2002, the
Pentagon revealed that Hamdi was an American citizen by virtue of his birth in
Louisiana and moved him to a brig in Norfolk, Va., then to the larger brig in
Hanahan, where he was placed in a special wing.

Hamdi "is the only detainee that has been under U.S. control in Afghanistan,
Guantanamo Bay and Norfolk," Army Col. Donald D. Woolfolk, a commander at
Guantanamo, said in a court proceeding in 2002, shortly before Hamdi's transfer
to the Hanahan brig.

Woolfolk argued that Hamdi should not be allowed to meet with a lawyer because
he had been held in so many detention facilities. "Harmful information could be
intentionally or unintentionally passed on concerning these facilities, thus
increasing the threat to U.S. forces and facilities in those areas," Woolfolk
said.

SECRET BRIG

As the Iraqi prison scandal heated up last month, Defense Secretary Donald H.
Rumsfeld ordered the Navy inspector general to investigate conditions in the
Hanahan brig and other military detention facilities. A report is expected soon.

Information about the brig has been scarce since the Pentagon began using it to
incarcerate terrorism detainees. Last fall, The Post and Courier requested
information under the U.S. Freedom of Information Act about conditions inside
the brig. The Pentagon has yet to provide any details.

Last week, a group of civil and human rights organizations alleged in a lawsuit
that the Defense Department had failed to comply with the FOIA by illegally
withholding records on detainees in military custody. The groups include the
Center for Constitutional Rights, American Civil Liberties Union, Physicians for
Human Rights, Veterans for Common Sense and Veterans for Peace.

Their complaint said there is "growing evidence that the abuse of detainees was
not aberrational but systemic, that in some cases the abuse amounted to torture
and resulted in death, and that senior officials either approved of the abuse or
were deliberately indifferent to it."

Hamdi's father said he has received a few letters from his son since he was
moved to the brig in Hanahan.

"He writes to his brothers, 'Do you remember when I did this?' Or, he writes
about games, just something to make us laugh. But he doesn't write about his
treatment." Some portions of the letters are blacked out, he added.

The elder Hamdi said he has fond feelings for Americans. He spent five years in
the country during the late 1970s and early 1980s. He maintains that his son is
no hardened terrorist, and that he went to Afghanistan on a youthful whim. He's
especially worried about how his son was treated in Afghanistan. What happened
in Iraq, "is a bad reflection on a few soldiers in the American army," he said.
"But it's not a reflection of the American people."

[ Tony Bartelme can be reached at bartelme@postandcourier.com or 937-5554. ]

* * *


The Wall Street Journal:

June 7, 2004; Page A1

PENTAGON REPORT SET FRAMEWORK FOR USE OF TORTURE
Security or Legal Factors Could Trump Restrictions, Memo to Rumsfeld Argued

By Jess Bravin, Staff Reporter

http://online.wsj.com/article/0,,SB108655737612529969,00.html

Bush administration lawyers contended last year that the president wasn't bound
by laws prohibiting torture and that government agents who might torture
prisoners at his direction couldn't be prosecuted by the Justice Department.

The advice was part of a classified report on interrogation methods prepared for
Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba,
complained in late 2002 that with conventional methods they weren't getting
enough information from prisoners.

The report outlined U.S. laws and international treaties forbidding torture, and
why those restrictions might be overcome by national-security considerations or
legal technicalities. In a March 6, 2003, draft of the report reviewed by The
Wall Street Journal, passages were deleted as was an attachment listing specific
interrogation techniques and whether Mr. Rumsfeld himself or other officials
must grant permission before they could be used. The complete draft document was
classified "secret" by Mr. Rumsfeld and scheduled for declassification in 2013.

The draft report, which exceeds 100 pages, deals with a range of legal issues
related to interrogations, offering definitions of the degree of pain or
psychological manipulation that could be considered lawful. But at its core is
an exceptional argument that because nothing is more important than "obtaining
intelligence vital to the protection of untold thousands of American citizens,"
normal strictures on torture might not apply.

The president, despite domestic and international laws constraining the use of
torture, has the authority as commander in chief to approve almost any physical
or psychological actions during interrogation, up to and including torture, the
report argued. Civilian or military personnel accused of torture or other war
crimes have several potential defenses, including the "necessity" of using such
methods to extract information to head off an attack, or "superior orders,"
sometimes known as the Nuremberg defense: namely that the accused was acting
pursuant to an order and, as the Nuremberg tribunal put it, no "moral choice was
in fact possible."

According to Bush administration officials, the report was compiled by a working
group appointed by the Defense Department's general counsel, William J. Haynes
II. Air Force General Counsel Mary Walker headed the group, which comprised top
civilian and uniformed lawyers from each military branch and consulted with the
Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency
and other intelligence agencies. It isn't known if President Bush has ever seen
the report.

A Pentagon official said some military lawyers involved objected to some of the
proposed interrogation methods as "different than what our people had been
trained to do under the Geneva Conventions," but those lawyers ultimately signed
on to the final report in April 2003, shortly after the war in Iraq began. The
Journal hasn't seen the full final report, but people familiar with it say there
were few substantial changes in legal analysis between the draft and final
versions.

A military lawyer who helped prepare the report said that political appointees
heading the working group sought to assign to the president virtually unlimited
authority on matters of torture -- to assert "presidential power at its absolute
apex," the lawyer said. Although career military lawyers were uncomfortable with
that conclusion, the military lawyer said they focused their efforts on reining
in the more extreme interrogation methods, rather than challenging the
constitutional powers that administration lawyers were saying President Bush
could claim.

The Pentagon disclosed last month that the working group had been assembled to
review interrogation policies after intelligence officials in Guantanamo
reported frustration in extracting information from prisoners. At a news
conference last week, Gen. James T. Hill, who oversees the offshore prison at
Guantanamo as head of the U.S. Southern Command, said the working group sought
to identify "what is legal and consistent with not only Geneva [but] ... what is
right for our soldiers." He said Guantanamo is "a professional, humane detention
and interrogation operation ... bounded by law and guided by the American
spirit."

Gen. Hill said Mr. Rumsfeld gave him the final set of approved interrogation
techniques on April 16, 2003. Four of the methods require the defense
secretary's approval, he said, and those methods had been used on two prisoners.
He said interrogators had stopped short of using all the methods lawyers had
approved. It remains unclear what actions U.S. officials took as a result of the
legal advice.

Critics who have seen the draft report said it undercuts the administration's
claims that it recognized a duty to treat prisoners humanely. The "claim that
the president's commander-in-chief power includes the authority to use torture
should be unheard of in this day and age," said Michael Ratner, president of the
Center for Constitutional Rights, a New York advocacy group that has filed
lawsuits against U.S. detention policies. "Can one imagine the reaction if those
on trial for atrocities in the former Yugoslavia had tried this defense?"

Following scattered reports last year of harsh interrogation techniques used by
the U.S. overseas, Sen. Patrick Leahy, a Vermont Democrat, wrote to National
Security Adviser Condoleezza Rice asking for clarification. The response came in
June 2003 from Mr. Haynes, who wrote that the U.S. was obliged to conduct
interrogations "consistent with" the 1994 international Convention Against
Torture and the federal Torture Statute enacted to implement the convention
outside the U.S.

The U.S. "does not permit, tolerate or condone any such torture by its employees
under any circumstances," Mr. Haynes wrote. The U.S. also followed its legal
duty, required by the torture convention, "to prevent other acts of cruel,
inhuman or degrading treatment or punishment which do not amount to torture," he
wrote.

The U.S. position is that domestic criminal laws and the Constitution's
prohibition of cruel and unusual punishments already met the Convention Against
Torture's requirements within U.S. territory.

The Convention Against Torture was proposed in 1984 by the United Nations
General Assembly and was ratified by the U.S. in 1994. It states that "no
exceptional circumstances whatsoever, whether a state of war or a threat of war,
internal political instability or any other public emergency, may be invoked as
a justification of torture," and that orders from superiors "may not be invoked
as a justification of torture."

That prohibition was reaffirmed after the Sept. 11 attacks by the U.N. panel
that oversees the treaty, the Committee Against Torture, and the March 2003
report acknowledged that "other nations and international bodies may take a more
restrictive view" of permissible interrogation methods than did the Bush
administration.

The report then offers a series of legal justifications for limiting or
disregarding antitorture laws and proposed legal defenses that government
officials could use if they were accused of torture.

A military official who helped prepare the report said it came after frustrated
Guantanamo interrogators had begun trying unorthodox methods on recalcitrant
prisoners. "We'd been at this for a year-plus and got nothing out of them" so
officials concluded "we need to have a less-cramped view of what torture is and
is not."

The official said, "People were trying like hell how to ratchet up the
pressure," and used techniques that ranged from drawing on prisoners' bodies and
placing women's underwear on prisoners heads -- a practice that later reappeared
in the Abu Ghraib prison -- to telling subjects, "I'm on the line with somebody
in Yemen and he's in a room with your family and a grenade that's going to pop
unless you talk."

Senior officers at Guantanamo requested a "rethinking of the whole approach to
defending your country when you have an enemy that does not follow the rules,"
the official said. Rather than license torture, this official said that the
report helped rein in more "assertive" approaches.

Methods now used at Guantanamo include limiting prisoners' food, denying them
clothing, subjecting them to body-cavity searches, depriving them of sleep for
as much as 96 hours and shackling them in so-called stress positions, a
military-intelligence official said. Although the interrogators consider the
methods to be humiliating and unpleasant, they don't view them as torture, the
official said.

The working-group report elaborated the Bush administration's view that the
president has virtually unlimited power to wage war as he sees fit, and neither
Congress, the courts nor international law can interfere. It concluded that
neither the president nor anyone following his instructions was bound by the
federal Torture Statute, which makes it a crime for Americans working for the
government overseas to commit or attempt torture, defined as any act intended to
"inflict severe physical or mental pain or suffering." Punishment is up to 20
years imprisonment, or a death sentence or life imprisonment if the victim dies.

"In order to respect the president's inherent constitutional authority to manage
a military campaign ... (the prohibition against torture) must be construed as
inapplicable to interrogations undertaken pursuant to his commander-in chief
authority," the report asserted. (The parenthetical comment is in the original
document.) The Justice Department "concluded that it could not bring a criminal
prosecution against a defendant who had acted pursuant to an exercise of the
president's constitutional power," the report said. Citing confidential Justice
Department opinions drafted after Sept. 11, 2001, the report advised that the
executive branch of the government had "sweeping" powers to act as it sees fit
because "national security decisions require the unity in purpose and energy in
action that characterize the presidency rather than Congress."

The lawyers concluded that the Torture Statute applied to Afghanistan but not
Guantanamo, because the latter lies within the "special maritime and territorial
jurisdiction of the United States, and accordingly is within the United States"
when applying a law that regulates only government conduct abroad.

Administration lawyers also concluded that the Alien Tort Claims Act, a 1789
statute that allows noncitizens to sue in U.S. courts for violations of
international law, couldn't be invoked against the U.S. government unless it
consents, and that the 1992 Torture Victims Protection Act allowed suits only
against foreign officials for torture or "extrajudicial killing" and "does not
apply to the conduct of U.S. agents acting under the color of law."

The Bush administration has argued before the Supreme Court that foreigners held
at Guantanamo have no constitutional rights and can't challenge their detention
in court. The Supreme Court is expected to rule on that question by month's end.

For Afghanistan and other foreign locations where the Torture Statute applies,
the March 2003 report offers a narrow definition of torture and then lays out
defenses that government officials could use should they be charged with
committing torture, such as mistakenly relying in good faith on the advice of
lawyers or experts that their actions were permissible. "Good faith may be a
complete defense" to a torture charge, the report advised.

"The infliction of pain or suffering per se, whether it is physical or mental,
is insufficient to amount to torture," the report advises. Such suffering must
be "severe," the lawyers advise, and they rely on a dictionary definition to
suggest it "must be of such a high level of intensity that the pain is difficult
for the subject to endure."

The law says torture can be caused by administering or threatening to administer
"mind-altering substances or other procedures calculated to disrupt profoundly
the sense of personality." The Bush lawyers advised, though, that it "does not
preclude any and all use of drugs" and "disruption of the senses or personality
alone is insufficient" to be illegal. For involuntarily administered drugs or
other psychological methods, the "acts must penetrate to the core of an
individual's ability to perceive the world around him," the lawyers found.

Gen. Hill said last week that the military didn't use injections or chemicals on
prisoners.

After defining torture and other prohibited acts, the memo presents "legal
doctrines ... that could render specific conduct, otherwise criminal, not
unlawful." Foremost, the lawyers rely on the "commander-in-chief authority,"
concluding that "without a clear statement otherwise, criminal statutes are not
read as infringing on the president's ultimate authority" to wage war. Moreover,
"any effort by Congress to regulate the interrogation of unlawful combatants
would violate the Constitution's sole vesting of the commander-in-chief
authority in the president," the lawyers advised.

Likewise, the lawyers found that "constitutional principles" make it impossible
to "punish officials for aiding the president in exercising his exclusive
constitutional authorities" and neither Congress nor the courts could "require
or implement the prosecution of such an individual."

To protect subordinates should they be charged with torture, the memo advised
that Mr. Bush issue a "presidential directive or other writing" that could serve
as evidence, since authority to set aside the laws is "inherent in the
president."

The report advised that government officials could argue that "necessity"
justified the use of torture. "Sometimes the greater good for society will be
accomplished by violating the literal language of the criminal law," the lawyers
wrote, citing a standard legal text, "Substantive Criminal Law" by Wayne LaFave
and Austin W. Scott. "In particular, the necessity defense can justify the
intentional killing of one person ... so long as the harm avoided is greater."

In addition, the report advised that torture or homicide could be justified as
"self-defense," should an official "honestly believe" it was necessary to head
off an imminent attack on the U.S. The self-defense doctrine generally has been
asserted by individuals fending off assaults, and in 1890, the Supreme Court
upheld a U.S. deputy marshal's right to shoot an assailant of Supreme Court
Justice Stephen Field as involving both self-defense and defense of the nation.
Citing Justice Department opinions, the report concluded that "if a government
defendant were to harm an enemy combatant during an interrogation in a manner
that might arguably violate criminal prohibition," he could be justified "in
doing so in order to prevent further attacks on the United States by the al
Qaeda terrorist network."

Mr. LaFave, a law professor at the University of Illinois, said he was unaware
that the Pentagon used his textbook in preparing its legal analysis. He agreed,
however, that in some cases necessity could be a defense to torture charges.
"Here's a guy who knows with certainty where there's a bomb that will blow New
York City to smithereens. Should we torture him? Seems to me that's an easy
one," Mr. LaFave said. But he said necessity couldn't be a blanket justification
for torturing prisoners because of a general fear that "the nation is in
danger."

For members of the military, the report suggested that officials could escape
torture convictions by arguing that they were following superior orders, since
such orders "may be inferred to be lawful" and are "disobeyed at the peril of
the subordinate." Examining the "superior orders" defense at the Nuremberg
trials of Nazi war criminals, the Vietnam War prosecution of U.S. Army Lt.
William Calley for the My Lai massacre and the current U.N. war-crimes tribunals
for Rwanda and the former Yugoslavia, the report concluded it could be asserted
by "U.S. armed forces personnel engaged in exceptional interrogations except
where the conduct goes so far as to be patently unlawful."

The report seemed "designed to find the legal loopholes that will permit the use
of torture against detainees," said Mary Ellen O'Connell, an international-law
professor at the Ohio State University who has seen the report. "CIA operatives
will think they are covered because they are not going to face liability."

[ Write to Jess Bravin at jess.bravin@wsj.com ]


* * *


San Francisco Chronicle:

June 7, 2004

FUROR OVER UC PROF'S BRIEF ON WAR
He advised Bush on prisoners' rights

By Robert Collier, Chronicle Staff Writer

http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/06/07/MNGKP721F21.DTL

A UC Berkeley law professor is under fire for his former role as a legal adviser
to the Bush administration in its war against terrorism, with critics saying he
served as the intellectual author of policies that led to the mistreatment of
Iraqi detainees by U.S. soldiers.

As a Justice Department aide, John Yoo wrote a legal brief in January 2002
arguing that fighters captured by U.S. troops in Afghanistan are not covered by
the Geneva conventions -- the treaties that embody the laws of war.

Yoo's memo led to the controversial decision by President Bush that al Qaeda and
Taliban prisoners being held at the U.S. Naval Base at Guantanamo Bay, Cuba, do
not qualify as prisoners of war and have no right to lawyers or a trial. The
result, human rights activists say, has been a legal twilight zone in which
abuses against prisoners in U.S. custody abroad have occurred.

The controversy pits a rising star at Boalt Hall School of Law against liberal
sentiment on the Berkeley campus. Ever since Yoo's memo was disclosed by
Newsweek magazine last month, students and graduates have rallied and
petitioned. At the law school commencement ceremony on May 22, about one-
quarter of the graduates wore black armbands to protest Yoo's role and called on
him to resign.

"I'm a conservative professor, so I'm used to people objecting to my views," Yoo
said in an interview with The Chronicle.

But the dispute also embodies issues central to the debate over the Iraq prison
abuses: Was the mistreatment of the Iraqi captives a result of the Bush
administration's policies toward the Iraq conflict, or was it a series of
aberrations committed by individuals at the bottom of the chain of command?

As a deputy assistant attorney general at the Justice Department, Yoo was one of
the administration's chief legal experts on the methods that could be used in
the campaign against terrorism. After resigning in June 2003, he returned to his
position as a tenured professor at Boalt.

At issue is Yoo's Jan. 9, 2002, memo to William Haynes, the Pentagon's general
counsel. It concluded that because neither al Qaeda nor the Taliban militia that
controlled Afghanistan could be considered functioning states, and because the
war on terror was not like regular wars between states, the al Qaeda and Taliban
prisoners at Guantanamo Bay are protected by "neither the War Crimes Act nor the
Geneva Conventions." The memo also concluded that U.S. soldiers could not be
tried for violations of the laws of war in Afghanistan because "customary
international law, whatever its source and content, does not bind the president
or restrict the actions of the U.S. military, because it does not constitute
federal law." It also argued that the War Crimes Act, passed by Congress, did
not apply.

Bush's decision one month later to suspend the conventions at Guantanamo was
intended to give interrogators greater freedom to use tough methods with
suspects. U.S. officials argued that granting normal prisoner-of-war status
would allow detainees to retain information on possible future terrorist attacks
against the United States.

"(Yoo's) memos were clearly a major contributor to the environment that led to
the abuses at Abu Ghraib," said Kenneth Roth, executive director of Human Rights
Watch. "He not only excused the violation of rights of prisoners at Guantanamo,
which was wrong in itself, but he set in motion the legal loopholes that led to
coercion on a broad scale."

Roth's organization has long criticized the Bush administration's incarceration
policies at Guantanamo Bay, Afghanistan and Iraq, and has issued many reports of
prison abuses -- allegations that were hotly denied by administration officials
and received little public attention until the Abu Ghraib scandal exploded in
early April.

In the interview with The Chronicle, Yoo declined specific comment on his memo,
and also declined to discuss his work at the Justice Department. His work there
encompassed the immediate Iraq postwar period, a time when the Afghanistan
dragnet slipped to the back burner as the administration became preoccupied with
the thousands of prisoners it was holding in Iraq.

But Yoo said Bush's move to exempt the Guantanamo Bay prisoners from the Geneva
conventions applied to those prisoners only and had no role in any subsequent
abuses in Iraq.

"To say the decision on al Qaeda helped create a culture in which abuses were
accepted, that it set the tone for Abu Ghraib -- how can you prove or disprove
that?" Yoo asked. "That's just an accusation, that's like saying, 'Because we
have the death penalty or abortion in the United States, we have a culture of
death.' That doesn't make sense. It is unproven and unprovable."

Yoo condemned the abuses in Abu Ghraib and said federal criminal law and an
international treaty against torture prohibit the kind of mistreatment that is
reported to have taken place at Abu Ghraib and elsewhere. "I don't know whether
these accusations by human rights groups are true (about Guantanamo Bay policies
producing Abu Ghraib abuses), but there are hearings going on along with a
military investigation, and we should wait to see what the truth is," he said.

Many experts agree that it is difficult to determine exactly what constitutes
torture -- for which there is no commonly accepted definition, Yoo noted.

"Some of those are things that happen in an American police station," he said.
"Sleep deprivation, standing a long time, for those things it depends on the
context, it depends how you do them. If you only let someone sleep six hours day
that's not a violation, but if you don't let someone sleep for days that
probably would be a violation."

But critics insist that Yoo appeared to ignore the likelihood that his
recommendation would result in widespread abuses. "The open question is whether
Yoo wrote this memo knowing this would facilitate the mistreatment of prisoners,
and if he did, he could be accused of a crime," Roth said. "I don't know if it
reflects shocking incompetence or criminal intent."

Roth, a former federal prosecutor in New York and for the Iran-Contra
investigation in the 1980s, said the Geneva conventions and U.S. federal law
give interrogators sufficient latitude to ferret out information from prisoners.
"You can lie to people, you can trick them, you cut deals with them, you can
yell at them. There are plenty of ways to get at the truth without torture."

The controversy has made Yoo, 36, a marked man on campus.

"Some people think of an attorney as a hired gun, with no responsibility
otherwise," said Boalt graduate Michael Anderson, who circulated the petition
calling on Yoo to resign only days after Anderson's graduation last month. "But
that's immoral. Even if Yoo is right and terrorists aren't covered by the Geneva
conventions, he induced the military to commit war crimes with his advice."

In a sign of the passions that surround the Iraq war, the petition has produced
its own backlash. As of Sunday, scores of the petition's 316 online signers were
hostile to the critics, signing themselves with names such as Osama bin Laden
and Saddam Hussein. A counter petition had garnered 186 signatures.

Yoo is philosophical about the controversy. "It comes with the territory for me.
The only thing different was asking me to resign my position, which I think was
over the line. It was a shock to me."

E-mail Robert Collier at rcollier@sfchronicle.com.

* * *


Los Angeles Times:

June 4, 2004

ABU GHRAIB INTELLIGENCE SOLDIER DESCRIBES IRAQ ABUSE IN DETAIL

By Greg Miller, Times Staff Writer

http://www.latimes.com/news/nationworld/iraq/la-fg-prison4jun04,1,5613490.story

WASHINGTON -- U.S. Army Spc. Israel Rivera had just returned to duty at the Abu
Ghraib prison in Iraq last October after minor surgery to remove shrapnel from
his face. He was checking his e-mail, he recalls, when another military
intelligence soldier approached.

"Hey Izzy, did you hear about those detainees that raped that one kid?" asked
the other soldier, Spc. Armin J. Cruz.

Rivera hadn't heard of the incident and asked what was going to happen to the
prisoners. Cruz, Rivera said, responded with an invitation: "Do you want to go
see what's happening?"

The two army intelligence analysts from a reserve unit in Texas walked over to
the isolation cellblock at Abu Ghraib and into the middle of the prison abuse
scandal that came to light in April. Their faces were among those captured in
disturbing photographs of inmates being mistreated.

In a telephone interview with The Times, Rivera described his involvement in the
case for the first time, saying that he visited the cellblock largely out of
curiosity and that he was stunned by what he saw: detainees being stripped
naked, made to crawl on their stomachs and chained into a ball of limbs and
flesh on the prison floor.

Rivera, 20, is the first military intelligence soldier to come forward publicly
and say that he witnessed a fellow intelligence soldier, Cruz, taking part in
the abuse of prisoners in the isolation cellblock at Abu Ghraib. Cruz has also
been cited in testimony by Sgt. Samuel J. Provance III, another intelligence
officer, who said Cruz "was known to bang on the table, yell, scream, and maybe
assaulted detainees during interrogations in the booth."

Cruz could not be reached for comment this week.

Because they are among only a handful of intelligence soldiers directly tied to
the abuse in photographs, Rivera and Cruz are potentially important witnesses
for military investigators seeking to determine the scope of the scandal --
specifically whether the torture of detainees had any connection to the
interrogation operation at Abu Ghraib.

Rivera disputed such claims, saying the abuse he witnessed had nothing to do
with "softening up" prisoners to get information from them.

He insisted that his superiors did not know about the abuse, let alone sanction
it.

Rivera said that as he got ready to leave the cellblock amid anguished pleas for
help from the prisoners, Cruz stopped him to make sure he didn't plan to talk.

"Before I walked out of that bay, he looked at me and asked me, 'Izzy, you're
not going to tell anybody, are you?' " Rivera said, speaking by telephone from
Baghdad this week.

"And I looked at him and I said: 'No, absolutely not, Cruz. You have nothing to
worry about.' "

Rivera said he never informed his superiors and still hasn't shared his account
with military investigators.

When he met with an Army Criminal Investigation Division agent in January, he
refused to talk unless he was provided with an attorney.

"The big reason I'm doing this [speaking publicly] is there's a big sense of
guilt that I have," Rivera said. "I didn't know there was a huge conspiracy [of
abuse at Abu Ghraib], but I did know about that one night.... I should have said
to my sergeant, 'Hey Sergeant, I saw this,' and a lot of it would have been
dealt with if I had."

The episode Rivera witnessed came about two weeks before some of the most
serious abuses took place, including nude prisoners being stacked up in pyramids
or forced to masturbate in front of guards.

Rivera said he had not been charged and was not certain of his legal status. He
and Cruz are both members of the 321st Military Intelligence Battalion in
Austin, Texas, but they were transferred to a Connecticut unit before being
deployed to Iraq.

Though the unit returned to the United States months ago, Rivera and Cruz have
had their tours involuntarily extended. Rivera said his orders now keep him in
Iraq until November.

Late last November, officials said, Cruz and a female interrogator were
disciplined after forcing an uncooperative detainee to strip naked.

Rivera's account is the most detailed description to date of prisoner abuse that
is believed to have occurred Oct. 25. According to military records, Rivera
appears in photographs taken that night that show as many as seven U.S. soldiers
and one civilian interpreter huddled around three naked detainees on the floor.

Several of the soldiers are MPs, including Cpl. Charles A. Graner Jr., who faces
court-martial and has been portrayed as a ringleader in the abuses.

But Rivera was among at least four intelligence personnel at the scene,
including Cruz; Spc. Roman Krol, an Army interrogator; and Adel L. Nakhla, a
civilian interpreter employed by Titan Corp.

Several of the seven MPs charged in the case have said they were encouraged or
directed by interrogators to mistreat prisoners as a means of softening them up
for questioning.

Rivera said that was not the case. "Anyone who says this was condoned by MI --
no, absolutely not," he said, adding that Cruz knew about the activities in the
cellblock only because he was friends with an MP, Spc. Sabrina Harman, who has
since been charged.

Rivera said the abuse was underway around 9 p.m. when he and Cruz arrived at
what was known as the hard site, where high-value or troublesome detainees were
held in isolation cells.

Three detainees were naked in a room, and an MP was shouting obscenities at them
through a megaphone, he said.

When the MPs pulled the prisoners out of the room, "that's when things got
really strange," Rivera said. First, he said, the prisoners were ordered to lie
on their bellies and crawl around the floor, with MPs yelling: "Go left! Go
right!"

Then the MPs handcuffed the detainees together on the floor, Rivera said,
shouting homosexual slurs at them, and taunting them to admit they had raped a
young male prisoner.

Cruz was among those who joined in the abusive behavior, Rivera said.

"Cruz and the other people were making them act as though they were having sex
-- using their feet to push on the detainees hips so they would be touching each
other," Rivera said. "The detainees were screaming for Allah, begging them, and
begging me to make them stop."

Rivera said Cruz was ordinarily "very calm, very relaxed, never gets angry. But
what happened that night, it was a different Cruz than I had ever seen."

Krol dumped water on the prisoners from a cup, Rivera said, and threw a foam
football at them from the second floor of the cellblock.

"He got up on the top tier of the isolation bay," Rivera said. "While these guys
were on the floor crawling, being screamed at, Krol is up there throwing this
football at them."

Reached at his home near Boston on Tuesday, Krol, 23, denied that he had engaged
in improper conduct.

"I don't know why [Rivera] would say that," Krol said. "That didn't happen."

None of the military intelligence personnel have been charged in the
investigation.

Krol acknowledged that he had witnessed abuse and said he didn't report it
because he "didn't care."

"I don't know the rules of engagement of MPs," he said. "I see something, it's
their business, I walk away."

Rivera did not accuse Nakhla of abusing detainees, but said Nakhla translated
the MPs' shouts and orders. In a statement included in a report on Abu Ghraib by
Army Maj. Gen. Antonio M. Taguba, Nakhla said the MPs who directed the abuse
that night were Graner and Sgt. Ivan L. "Chip" Frederick II.

"They made them do strange exercises by sliding on their stomach, jump up and
down, throw water on them," Nakhla said in his statement.

Rivera said that he did not personally take part in any abuse that night.

In the pictures, "I'm shown doing exactly what I did that night -- stupidly
watching, like a moron," he said.

After about 15 minutes, Rivera said, he left the cellblock. The next day, Rivera
said, he described what he saw to another soldier from his unit, Spc. Hannah
Schlegel.

Schlegel urged informing superiors, Rivera said, but he refused. Later that day,
she indicated that she had done so herself.

"She comes back and said, 'Izzy, you know that thing, don't worry about it, I
took care of it.' "

Rivera said he and Schlegel also sought to discourage Cruz and Krol from taking
part in any future incidents by telling them that military investigators had
heard about the incident in late October and were "sniffing around."

"Krol was mortified, he was like, 'Please don't tell anyone,' " Rivera said.
"Same with Cruz. Just mortified about getting in trouble."

The matter didn't resurface until January, Rivera said, when he was on leave in
the U.S. and his mother was contacted by military investigators saying they were
trying to reach him.

When Rivera returned to Baghdad, he met with a Criminal Investigation Division
agent. "He started reading me my rights. I asked for a lawyer, the interview
ended," Rivera said.

Cruz and Rivera both earned Purple Hearts after being wounded in a mortar attack
on Abu Ghraib in September. Rivera had shrapnel removed from his jaw area.

Rivera said he hadn't worked at the prison since January. He now spends most of
his days engaged in menial military chores, including cleaning up trash or
escorting Iraqi visitors to the military compound where he is based.

He said he occasionally sees others involved in the case, including Cruz, Graner
and Harman. Cruz has even tried to apologize, saying, "I'm sorry I got you
involved," according to Rivera.

But Rivera said their relationship had been strained, and that it would probably
deteriorate further now that he had publicly implicated Cruz in the abuse.

* * *


USA Today:

June 1, 2004

ARMY NOTED GENEVA CONVENTIONS VIOLATIONS IN IRAQ PRISONS LAST FALL

http://www.usatoday.com/news/world/iraq/2004-06-01-prison-abuse_x.htm

WASHINGTON (AP) -- An Army general who visited Abu Ghraib prison in Iraq last
fall complained that the military was violating international war standards by
incarcerating common criminals along with insurgents captured in attacks against
U.S.-led forces.

It was one among dozens of observations in a still-classified report, obtained
Tuesday by The Associated Press, portraying an overcrowded, dysfunctional prison
system lacking basic sanitation and medical supplies.

"Due to operational limitations, facility limitations and force protection
issues, there are criminal detainees collocated with other types of detainees,
including security detainees," wrote Maj. Gen. Donald Ryder, the Army's provost
martial general. "However, the Geneva Convention does not allow this."

Ryder warned that mixing such prisoners "invites confusion about handling,
processing and treatment."

Article 84 of the Fourth Geneva Convention prohibits housing prisoners of war
and "persons deprived of liberty for any other reason" with general criminal
populations. The rules also require that enemy prisoners be kept in facilities
"affording every guarantee of hygiene and healthfulness."

Ryder's 64-page report, dated Nov. 5, states at the outset that investigators
found no evidence of "inappropriate" treatment of Iraqi detainees by military
police. It does not detail any efforts to find evidence of the abuse that
occurred at Abu Ghraib around the time he visited the prison -- except to note
that his team found a "wide variance" of detention practices at Coalition
Provisional Authority facilities, including "flawed or insufficiently detailed
use of force and other standing operating procedures or policies."

Widely circulated photos have shown U.S. soldiers abusing prisoners.

An Army spokesman declined to comment on the report. Ryder's mission in Iraq was
to assess the capabilities of the country's prison system -- not at a specific
prison. The report was assigned by Lt. Gen. Ricardo Sanchez, the chief of U.S.
forces in Iraq.

Other senior Army officials, including Maj. Gen. Antonio Taguba, who was
appointed in January to investigate allegations of abuses and whose report found
them widespread, also have complained separately about the mingling of prison
populations in Iraq.

But none so explicitly acknowledged that the Army's procedures might have
violated international law.

"You can no longer say there was some unclarity or wiggle room about what we
were doing there," said Deborah Pearlstein, director of the U.S. law and
security program for Human Rights First, a private rights organization. "Here
you have your own general saying, 'We're in violation of international law.'"

The report described a chaotic prison system, with staff lacking "basic
necessities" such as food, cleaning supplies and hygiene items, and carrying
little accountability for providing adequate health care.

At some facilities, contractors were allowed to use "unsecured" and
"unsupervised" tools, while soldiers carried weapons when interacting with
detainees -- "an unacceptable risk inside a confinement facility," according to
the report. The report does not specify what the tools were.

At Camp Ganci, the holding facility for security internees at Abu Ghraib, the
"area is littered with trash, has pools of water standing around latrines and
the bottles of water carried by detainees for water consumption are filthy," the
report said. Moreover, it charged, Abu Ghraib "lacks hospital beds, diagnostic
equipment" and is understaffed and unprepared to care for chronically sick and
mentally ill detainees.

At one point, the report prescribes brooms and bleach to be distributed
throughout the prison system. It also recommends building a laundry facility
where detainees could work.

Although President Bush and some members of Congress have called for destroying
Abu Ghraib, Ryder strongly recommended keeping it in operation.

It "should be the centerpiece for both the military mission and the eventual
transfer of facilities to Iraqi control" until a new, $100 million prison is
built elsewhere, perhaps at Kanbani Saad, according to the report.

Abu Ghraib "should continue in operation to help meet anticipated future bed
space requirements," the report noted.

* * *


The Nation:

June 1, 2004

PINOCHET AND US: FROM VILLA GRIMALDI TO ABU GHRAIB

by Marc Cooper

http://www.thenation.com/doc.mhtml?i=20040614&s=cooper

Former Chilean dictator Augusto Pinochet, all of a sudden, is right back where
he belongs--a hairsbreadth away from trial. On Friday, a Santiago appeals court
made a stunning reversal when it stripped the 88-year-old former general of
judicial immunity. A previous court ruling in 2001 had found Pinochet mentally
unfit to stand trial on murder indictments deriving from his seventeen-year
dictatorship.

But Pinochet was too wily by half. Instead of gratefully and quietly retreating
behind his mansion gates, he was seen living it up in some Santiago supper
clubs. And after he recently gave a lucid interview to a Miami-based Spanish-
language TV station, the court apparently decided he might just be fit enough to
spend some quality time in a courtroom dock.

Pinochet's lawyers are expected to appeal last Friday's ruling to the same
Chilean Supreme Court that originally granted him immunity. Yet speculation is
rife in Santiago that the political tide may have definitively turned against
the former dictator--and that an eventual trial cannot be ruled out.

The conservative Santiago daily La Tercera reports that another reason for the
reappraisal of Pinochet's immunity stems from the gravity of the crimes that
have come to light as part of the investigation into Operation Condor. Condor
was the transnational repressive network led by Pinochet in the 1970s and early
'80s and whose crimes included the 1976 car-bombing murder of Orlando Letelier
and Ronni Moffitt in Washington, DC. La Tercera reports that some Chilean judges
allegedly said that the multinational effort to track down and kill opponents of
the various military regimes was an unparalleled display of "state terrorism"
that must not go unpunished.

In Chile, human rights activists and lawyers are simply ecstatic that the aged
dictator once again finds himself in jeopardy. Outside the country, however,
there's plenty of head-scratching going on. Wasn't this whole mess already
sorted out, I have been asked by several curious observers. Why is this still
dragging on more than thirty years after Pinochet's 1973 coup, almost fifteen
years since he left power? Isn't this all ancient history?

Hardly. And in that one-word answer reside some important lessons Americans
might extract in how to proceed with the Abu Ghraib scandal. Though Pinochet
murdered thousands and tortured even more, the cloak of terror with which he
blanketed Chile muted any public recognition of the systematic abuse. Chile
succumbed to a form of mass psychosis, a vehement collective denial of the most
obvious sort of atrocities. Not until 1988, when Chile's media were opened by a
Pinochet-sponsored plebiscite campaign, did a Chilean national TV audience hear
a direct accusation of state torture--thanks to the courage of a beloved soccer
star, Carlos Cazely. A few weeks later Pinochet lost his own plebiscite and two
years after that had to leave office.

But the collective trauma, shame and lingering fears still kept much of Chilean
society mute in recognizing and coming to terms with state terror and torture.
The first prosecution of military officers would not come until the late 1990s.
As late as 1998 Pinochet was being honored as an appointed Senator for Life. Not
until a year later was he finally indicted by Chilean courts for his crimes; and
then only after he had been held for 501 days in British custody.

Consider this staggering thought: Not until this past month did Chilean citizens
have the opportunity to offer testimony on torture to a formal government
commission. Three decades after their torment, more than 30,000 victims came
forth. With the Chilean experience in mind, it seems ever more imperative that
no concession now be made to our own domestic bullies and demagogues who demand
that further media coverage of the Abu Ghraib torture scandal be shut down lest
we inflict irreparable damage to the Iraq war effort. The lessons of Chile teach
us otherwise. What most distinguishes us from closed societies is not only our
capacity to recognize official abuse but also our willingness to properly punish
those who commit atrocities in the name of some Greater Cause.

There's plenty of hedging, scapegoating and obfuscation currently being
generated around the Abu Ghraib revelations. But we should take some pride in
the fact that those revelations, nevertheless, keep coming. We have achieved in
one month what it took Chile twenty-five years to grasp. That is the virtue of
our democracy, whatever its limitations and distortions. May Pinochet now
finally get his due. And may we go full speed ahead in getting to the bottom--
or, better said, to the top--of our own investigation into state torture.

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