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NEWS DIGEST 2005.06.01 - 2005.12.31
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Washington Post --

December 31, 2005

JUSTICE DEPT. INVESTIGATING LEAK OF NSA WIRETAPPING
Probe Seeks Source Of Classified Data

By Dan Eggen

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/30/
AR2005123000538.html

The Justice Department has opened a criminal investigation into recent
disclosures about a controversial domestic eavesdropping program that was
secretly authorized by President Bush after the Sept. 11, 2001, attacks,
officials said yesterday.

Federal prosecutors will focus their examination on who may have unlawfully
disclosed classified information about the program to the New York Times, which
reported two weeks ago that Bush had authorized the National Security Agency to
monitor the international telephone calls and e-mails of U.S. citizens and
residents without court-approved warrants, officials said.

The Justice Department's decision to reveal the opening of a criminal
investigation is rare, particularly given the highly classified nature of the
probe. White House deputy press secretary Trent Duffy told reporters in
Crawford, Tex., yesterday that the department "undertook this action on its own"
and that Bush had only learned about it from senior staff earlier in the day.

But Duffy reiterated earlier statements by Bush, who had sharply condemned the
disclosure of the NSA program and argued that it seriously damaged national
security.

"The fact is that al Qaeda's playbook is not printed on Page One, and when
America's is, it has serious ramifications," Duffy said, reading from prepared
remarks. "You don't need to be Sun Tzu to understand that," he added, referring
to the ancient Chinese general who wrote "The Art of War."

Leak investigations generally begin with a referral to the Justice Department by
the agency in question -- in this case the NSA -- which prompts a preliminary
inquiry by prosecutors to determine whether a crime has been committed. The
opening of a criminal investigation signals that prosecutors believe that laws
barring disclosure of classified information by government officials were
broken. It is likely to be a full-blown probe involving FBI agents and
department investigators.

The case is the latest in a series of clashes between the Fourth Estate and the
Bush administration, which has aggressively enforced restrictions on classified
information and has frequently complained about press disclosures related to
terrorism or the war in Iraq.

Earlier this year, a grand jury investigation by Special Counsel Patrick J.
Fitzgerald into the disclosure of CIA agent Valerie Plame's identity resulted in
the jailing of Judith Miller, then a reporter at the New York Times, for
refusing to testify, and in criminal charges against I. Lewis "Scooter" Libby,
who resigned as Vice President Cheney's chief of staff. That probe is ongoing.

In another recent case, the CIA general counsel's office notified the Justice
Department in November that classified information had been disclosed in a
report by The Washington Post on the existence of secret "black site" prisons in
Eastern Europe and elsewhere. Department officials declined to comment yesterday
on whether that referral has also led to a full criminal probe.

News of the domestic spying program by the NSA, which is normally restricted to
eavesdropping overseas, set off a firestorm of criticism from lawmakers and
civil liberties advocates and contributed to the administration's failure to
persuade Congress to pass a renewed version of the USA Patriot Act anti-
terrorism law. The GOP chairman of the Senate Judiciary Committee has vowed to
hold hearings on the NSA program, and some other Republicans have demanded a
congressional probe into the leak.

The spying program also angered judges on a special court that administers the
Foreign Intelligence Surveillance Act, which governs clandestine surveillance
within the United States and which requires warrants for secret searches and
wiretaps. One of the panel's members, U.S. District Judge James Robertson,
submitted his resignation from the secret court in protest, according to sources
familiar with his decision.

Soon after the story broke Dec. 15 in the online edition of the New York Times,
Bush and other administration officials took the unusual step of publicly
acknowledging the program's existence, describing details of its operation and
arguing that the initiative was legal and necessary in a time of war. Attorney
General Alberto R. Gonzales said the program "is probably the most highly
classified program that exists in the United States government."

The Times said it held the story for a year after the administration argued that
its disclosure would harm national security. The published story relied on
"nearly a dozen current and former officials," the newspaper said. Times
spokeswoman Catherine Mathis declined to comment on the Justice Department probe
yesterday.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the
Press, a journalism advocacy group, said the leak probe underscores the need for
a federal "shield law" to protect reporters' sources. She and other observers
also said that the NSA case appears to be less controversial, from a
journalistic point of view, than the Plame case, which involves journalists
attempting to protect sources allegedly engaged in political attacks.

"It doesn't seem to me that this leak investigation will take on the importance
of the Plame case," said Carl W. Tobias, a law professor at the University of
Richmond. "The bigger story here is still the one about domestic spying and
whether the president intends, as he said, to continue doing it."

The American Civil Liberties Union, which has argued that a special prosecutor
should be appointed to determine whether Bush violated federal wiretapping laws,
called the leak probe an unwarranted attack on whistle-blowers.

"Attorney General Gonzales is cracking down on critics of his friend and boss,"
said ACLU Executive Director Anthony D. Romero.

[ Staff writer Lisa Rein in Crawford, Tex., contributed to this report. ]

*


Washington Post --

December 30, 2005

COVERT CIA PROGRAM WITHSTANDS NEW FUROR
Anti-Terror Effort Continues to Grow

By Dana Priest

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/29/
AR2005122901585.html

The effort President Bush authorized shortly after Sept. 11, 2001, to fight al
Qaeda has grown into the largest CIA covert action program since the height of
the Cold War, expanding in size and ambition despite a growing outcry at home
and abroad over its clandestine tactics, according to former and current
intelligence officials and congressional and administration sources.

The broad-based effort, known within the agency by the initials GST, is
compartmentalized into dozens of highly classified individual programs, details
of which are known mainly to those directly involved.

GST includes programs allowing the CIA to capture al Qaeda suspects with help
from foreign intelligence services, to maintain secret prisons abroad, to use
interrogation techniques that some lawyers say violate international treaties,
and to maintain a fleet of aircraft to move detainees around the globe. Other
compartments within GST give the CIA enhanced ability to mine international
financial records and eavesdrop on suspects anywhere in the world.

Over the past two years, as aspects of this umbrella effort have burst into
public view, the revelations have prompted protests and official investigations
in countries that work with the United States, as well as condemnation by
international human rights activists and criticism by members of Congress.

Still, virtually all the programs continue to operate largely as they were set
up, according to current and former officials. These sources say Bush's personal
commitment to maintaining the GST program and his belief in its legality have
been key to resisting any pressure to change course.

"In the past, presidents set up buffers to distance themselves from covert
action," said A. John Radsan, assistant general counsel at the CIA from 2002 to
2004. "But this president, who is breaking down the boundaries between covert
action and conventional war, seems to relish the secret findings and the dirty
details of operations."

The administration's decisions to rely on a small circle of lawyers for legal
interpretations that justify the CIA's covert programs and not to consult widely
with Congress on them have also helped insulate the efforts from the growing
furor, said several sources who have been involved.

Bush has never publicly confirmed the existence of a covert program, but he was
recently forced to defend the approach in general terms, citing his wartime
responsibilities to protect the nation. In November, responding to questions
about the CIA's clandestine prisons, he said the nation must defend against an
enemy that "lurks and plots and plans and wants to hurt America again."

This month he went into more detail, defending the National Security Agency's
warrantless eavesdropping within the United States. That program is separate
from the GST program, but three lawyers involved said the legal rationale for
the NSA program is essentially the same one used to support GST, which is an
abbreviation of a classified code name for the umbrella covert action program.

The administration contends it is still acting in self-defense after the Sept.
11 attacks, that the battlefield is worldwide, and that everything it has
approved is consistent with the demands made by Congress on Sept. 14, 2001, when
it passed a resolution authorizing "all necessary and appropriate force against
those nations, organizations, or persons [the president] determines planned,
authorized, committed, or aided the terrorist attacks."

"Everything is done in the name of self-defense, so they can do anything because
nothing is forbidden in the war powers act," said one official who was briefed
on the CIA's original cover program and who is skeptical of its legal
underpinnings. "It's an amazing legal justification that allows them to do
anything," said the official, who like others spoke on the condition of
anonymity because of the sensitivity of the issues.

The interpretation undergirds the administration's determination not to waver
under public protests or the threat of legislative action. For example, after
The Washington Post disclosed the existence of secret prisons in several Eastern
European democracies, the CIA closed them down because of an uproar in Europe.
But the detainees were moved elsewhere to similar CIA prisons, referred to as
"black sites" in classified documents.

The CIA has stuck with its overall approaches, defending and in some cases
refining them. The agency is working to establish procedures in the event a
prisoner dies in custody. One proposal circulating among mid-level officers
calls for rushing in a CIA pathologist to perform an autopsy and then quickly
burning the body, according to two sources.

In June, the CIA temporarily suspended its interrogation program after a
controversy over the disclosure of an Aug. 1, 2002, memorandum from the Justice
Department's Office of Legal Counsel that defined torture in an unconventional
way. The White House withdrew and replaced the memo. But the hold on the CIA's
interrogation activities was eventually removed, several intelligence officials
said.

The authorized techniques include "waterboarding" and "water dousing," both
meant to make prisoners think they are drowning; hard slapping; isolation; sleep
deprivation; liquid diets; and stress positions -- often used, intelligence
officials say, in combination to enhance the effect.

Behind the scenes, CIA Director Porter J. Goss -- until last year the Republican
chairman of the House intelligence committee -- has gathered ammunition to
defend the program.

After a CIA inspector general's report in the spring of 2004 stated that some
authorized interrogation techniques violated international law, Goss asked two
national security experts to study the program's effectiveness.

Gardner Peckham, an adviser to then-House Speaker Newt Gingrich (R-Ga.),
concluded that the interrogation techniques had been effective, said an
intelligence official familiar with the result. John J. Hamre, deputy defense
secretary under President Bill Clinton, offered a more ambiguous conclusion.
Both declined to comment.

The only apparent roadblock that could yet prompt significant change in the
CIA's approach is a law passed this month prohibiting torture and cruel and
inhumane treatment of prisoners in U.S. custody, including in CIA hands.

It is still unclear how the law, sponsored by Sen. John McCain (R-Ariz.), will
be implemented. But two intelligence experts said the CIA will be required to
draw up clear guidelines and to get all special interrogation techniques
approved by a wider range of government lawyers who hold a more conventional
interpretation of international treaty obligations.

"The executive branch will not pull back unless it has to," said a former
Justice Department lawyer involved in the initial discussions on executive
power. "Because if it pulls back unilaterally and another attack occurs, it will
get blamed."
The Origins

The top-secret presidential finding Bush signed six days after the Sept. 11
attacks empowered the intelligence agencies in a way not seen since World War
II, and it ordered them to create what would become the GST program.

Written findings are required by the National Security Act of 1947 before the
CIA can undertake a covert action. A covert action may not violate the
Constitution or any U.S. law. But such actions can, and often do, violate laws
of the foreign countries in which they take place, said intelligence experts.

The CIA faced the day after the 2001 attacks with few al Qaeda informants, a
tiny paramilitary division and no interrogators, much less a system for
transporting terrorism suspects and keeping them hidden for interrogation.

Besides fighting the war in Afghanistan, the agency set about to put in place an
intelligence-gathering network that relies heavily on foreign security services
and their deeper knowledge of local terrorist groups. With billions of dollars
appropriated each year by Congress, the CIA has established joint
counterterrorism intelligence centers in more than two dozen countries, and it
has enlisted at least eight countries, including several in Eastern Europe, to
allow secret prisons on their soil.

Working behind the scenes, the CIA has gained approval from foreign governments
to whisk terrorism suspects off the streets or out of police custody into a
clandestine prison system that includes the CIA's black sites and facilities run
by intelligence agencies in other countries.

The presidential finding also permitted the CIA to create paramilitary teams to
hunt and kill designated individuals anywhere in the world, according to a dozen
current and former intelligence officials and congressional and executive branch
sources.

In four years, the GST has become larger than the CIA's covert action programs
in Afghanistan and Central America in the 1980s, according to current and former
intelligence officials. Indeed, the CIA, working with foreign counterparts, has
been responsible for virtually all of the success the United States has had in
capturing or killing al Qaeda leaders since Sept. 11, 2001.

Bush delegated much of the day-to-day decision-making and the creation of
individual components to then-CIA Director George J. Tenet, according to
congressional and intelligence officials who were briefed on the finding at the
time.

"George could decide, even on killings," one of these officials said, referring
to Tenet. "That was pushed down to him. George had the authority on who was
going to get it."
The Lawyers

Tenet, according to half a dozen former intelligence officials, delegated most
of the decision making on lethal action to the CIA's Counterterrorist Center.
Killing an al Qaeda leader with a Hellfire missile fired from a remote-
controlled drone might have been considered assassination in a prior era and
therefore banned by law.

But after Sept. 11, four former government lawyers said, it was classified as an
act of self-defense and therefore was not an assassination. "If it was an al
Qaeda person, it wouldn't be an assassination," said one lawyer involved.

This month, Pakistani intelligence sources said, Hamza Rabia, a top operational
planner for al Qaeda, was killed along with four others by a missile fired by
U.S. operatives using an unmanned Predator drone, although there were
conflicting reports on whether a missile was used. In May, another al Qaeda
member, Haitham Yemeni, was reported killed by a Predator drone missile in
northwest Pakistan.

Refining what constitutes an assassination was just one of many legal
interpretations made by Bush administration lawyers. Time and again, the
administration asked government lawyers to draw up new rules and reinterpret old
ones to approve activities once banned or discouraged under the congressional
reforms beginning in the 1970s, according to these officials and seven lawyers
who once worked on these matters.

Gen. Michael V. Hayden, deputy director of national intelligence, has described
the administration's philosophy in public and private meetings, including a
session with human rights groups.

"We're going to live on the edge," Hayden told the groups, according to notes
taken by Human Rights Watch and confirmed by Hayden's office. "My spikes will
have chalk on them. . . . We're pretty aggressive within the law. As a
professional, I'm troubled if I'm not using the full authority allowed by law."

Not stopping another attack not only will be a professional failure, he argued,
but also "will move the line" again on acceptable legal limits to
counterterrorism.

When the CIA wanted new rules for interrogating important terrorism suspects the
White House gave the task to a small group of lawyers within the Justice
Department's Office of Legal Counsel who believed in an aggressive
interpretation of presidential power.

The White House tightened the circle of participants involved in these most
sensitive new areas. It initially cut out the State Department's general
counsel, most of the judge advocates general of the military services and the
Justice Department's criminal division, which traditionally dealt with
international terrorism.

"The Bush administration did not seek a broad debate on whether commander-in-
chief powers can trump international conventions and domestic statutes in our
struggle against terrorism," said Radsan, the former CIA lawyer, who is a
professor at William Mitchell College of Law in St. Paul, Minn. "They could have
separated the big question from classified details to operations and had an open
debate. Instead, an inner circle of lawyers and advisers worked around the
dissenters in the administration and one-upped each other with extreme
arguments."

At the CIA, the White House allowed the general counsel's job, traditionally
filled from outside the CIA by someone who functioned in a sort of oversight
role, to be held by John Rizzo, a career CIA lawyer with a fondness for flashy
suits and ties who worked for years in the Directorate of Operations, or D.O.

"John Rizzo is a classic D.O. lawyer. He understands the culture, the
intelligence business," Radsan said. "He admires the case officers. And they
trust him to work out tough issues in the gray with them. He is like a corporate
lawyer who knows how to make the deal happen."

These lawyers have written legal justifications for holding suspects picked up
outside Afghanistan without a court order, without granting traditional legal
rights and without giving them access to the International Committee of the Red
Cross.

CIA and Office of Legal Counsel lawyers also determined that it was legal for
suspects to be secretly detained in one country and transferred to another for
the purposes of interrogation and detention -- a process known as "rendition."

Lawyers involved in the decision making acknowledge the uncharted nature of
their work. "I did what I thought the best reading of the law was," one lawyer
said. "These lines are not obvious. It was a judgment."
Credit and Blame

One way the White House limited debate over its program was to virtually shut
out Congress during the early years. Congress, for its part, raised only weak
and sporadic protests. The administration sometimes refused to give the
committees charged with overseeing intelligence agencies the details they
requested. It also cut the number of members of Congress routinely briefed on
these matters, usually to four members -- the chairmen and ranking Democratic
members of the House and Senate intelligence panels.

John D. Rockefeller IV (W.Va.), ranking Democrat on the Senate Select Committee
on Intelligence, complained in a 2003 letter to Vice President Cheney that his
briefing on the NSA eavesdropping was unsatisfactory. "Given the security
restrictions associated with this information, and my inability to consult staff
or counsel on my own, I feel unable to fully evaluate, much less endorse, these
activities," he wrote.

Rockefeller made similar complaints about the CIA's refusal to allow the full
committee to see the backup material supporting a skeptical report by the CIA
inspector general in 2004 on detentions and interrogations that questioned the
legal basis for renditions.

Some former CIA officers now worry that the agency alone will be held
responsible for actions authorized by Bush and approved by the White House's
lawyers.

Attacking the CIA is common when covert programs are exposed and controversial,
said Gerald Haines, a former CIA historian who is a scholar in residence at the
University of Virginia. "It seems to me the agency is taking the brunt of all
the recent criticism."

Duane R. "Dewey" Clarridge, who directed the CIA's covert efforts to support the
Nicaraguan contras in the 1980s, said the nature of CIA work overseas is, and
should be, risky and sometimes ugly. "You have a spy agency because the spy
agency is going to break laws overseas. If you don't want it to do those
dastardly things, don't have it. You can have the State Department."

But a former CIA officer said the agency "lost its way" after Sept. 11, rarely
refusing or questioning an administration request. The unorthodox measures "have
got to be flushed out of the system," the former officer said. "That's how it
works in this country."

[ Researcher Julie Tate contributed to this report. ]

*


New York Times --

December 27, 2005
UNWARRANTED COMPLAINTS
By David B. Rivkin and Lee A. Casey

http://www.nytimes.com/2005/12/27/opinion/27casey.html

SHORTLY after the Sept. 11 attacks, President Bush ordered surveillance of
international telephone communications by suspected members of Al Qaeda
overseas, even if such calls also involved individuals within the United States.
This program was adopted by direct presidential order and was subject to review
every 45 days. Judicial warrants for this surveillance were neither sought nor
obtained, although key members of Congress were evidently informed. The
program's existence has now become public, and howls of outrage have ensued. But
in fact, the only thing outrageous about this policy is the outrage itself.

The president has the constitutional authority to acquire foreign intelligence
without a warrant or any other type of judicial blessing. The courts have
acknowledged this authority, and numerous administrations, both Republican and
Democrat, have espoused the same view. The purpose here is not to detect crime,
or to build criminal prosecutions - areas where the Fourth Amendment's warrant
requirements are applicable - but to identify and prevent armed attacks on
American interests at home and abroad. The attempt, by Democrats and Republicans
alike, to dismantle the president's core constitutional power in wartime is
wrongheaded and should be vigorously resisted by the administration.

After all, even the administration's sternest critics do not deny the compelling
need to collect intelligence about Al Qaeda's plans so we can thwart future
attacks. So instead of challenging the program on policy grounds, most have
focused on its legal propriety, specifically Mr. Bush's decision not to follow
the framework established by the 1978 Foreign Intelligence Surveillance Act.

In an effort to control counterintelligence activities in the United States
during the cold war, the surveillance act established a special court, known as
the FISA court, with authority to issue wiretapping warrants. Instead of having
to show that it has "probable cause" to believe criminal activity is taking
place (which is required to obtain a warrant in an ordinary investigation), the
government can get a warrant from the FISA court when there is probable cause to
believe the target of surveillance is a foreign power or its agent.

Although the administration could have sought such warrants, it chose not to for
good reasons. The procedures under the surveillance act are streamlined, but
nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court
is not a rubber stamp and may well decline to issue warrants even when wartime
necessity compels surveillance. More to the point, the surveillance act was
designed for the intricate "spy versus spy" world of the cold war, where move
and countermove could be counted in days and hours, rather than minutes and
seconds. It was not drafted to deal with the collection of intelligence
involving the enemy's military operations in wartime, when information must be
put to immediate use.

Indeed, it is highly doubtful whether individuals involved in a conflict have
any "reasonable expectation of privacy" in their communications, which is the
touchstone of protection under both the Fourth Amendment and the surveillance
act itself - anymore than a tank commander has a reasonable expectation of
privacy in his communications with his commanders on the battlefield. The same
goes for noncombatants swept up in the hostilities.

Even if Congress had intended to restrict the president's ability to obtain
intelligence in such circumstances, it could not have constitutionally done so.
The Constitution designates the president as commander in chief, and Congress
can no more direct his exercise of that authority than he can direct Congress in
the execution of its constitutional duties. As the FISA court itself noted in
2002, the president has "inherent constitutional authority to conduct
warrantless foreign intelligence surveillance."

In this instance, in addition to relying on his own inherent constitutional
authority, the president can also draw upon the specific Congressional
authorization "to use all necessary and appropriate force" against those
responsible for the Sept. 11 attacks "in order to prevent any future attacks of
international terrorism against the United States." These words are sufficiently
broad to encompass the gathering of intelligence about the enemy, its movements,
its abilities and its plans, a core part of the use of force against Al Qaeda
and its allies. The authorization does not say that the president can order the
use of artillery, or air strikes, yet no one is arguing that therefore Mr. Bush
is barred from doing so.

The fact that the statutory language does not specifically mention intelligence
collection, or that this matter was not raised by the White House in
negotiations with Congress, or even that the administration had sought even
broader language, all points recently raised by former Senator Tom Daschle, is
irrelevant.

Overall, this surveillance program is fully within the president's legal
authority, is limited in scope (involving communications to or from overseas
related to the war against Al Qaeda), and is subject to stringent presidential
review. The contretemps its revelation has caused reveals much more about the
chattering classes' fundamental antipathy to strong government in general, and
strong executive power in particular, than it does about presidential
overreaching.

The Constitution's framers did not vest absolute power in any branch of the
federal government, including the courts, but they did create a strong executive
and equipped the office with sufficient authority to act energetically to defend
the national interest in wartime. That is what President Bush has done, and
nothing more.

[ David B. Rivkin and Lee A. Casey are lawyers who served in the Justice
Department in the Reagan and George H. W. Bush administrations. ]

*


Washington Post --

December 26, 2005

SCHOLAR STANDS BY POST-9/11 WRITINGS ON TORTURE, DOMESTIC EAVESDROPPING
Former Justice Official Says He Was Interpreting Law, Not Making Policy

By Peter Slevin

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/25/
AR2005122500570.html

John Yoo knows the epithets of the libertarians, the liberals and the lefties.
Widely considered the intellectual architect of the most dramatic assertion of
White House power since the Nixon era, he has seen constitutional scholars
skewer his reasoning and students call for his ouster from the University of
California at Berkeley.

Civil liberties advocates were appalled by a memo he helped draft on torture.
The State Department's chief legal adviser at the time called his analysis of
the Geneva Conventions "seriously flawed." Supreme Court Justice Sandra Day
O'Connor wrote, in a critique of administration views espoused by Yoo, "a state
of war is not a blank check for the President when it comes to the rights of the
Nation's citizens."

Yoo has alienated so many influential opponents that he is considered
unconfirmable for a judgeship or high office, not unlike a certain conservative
jurist rejected by the Senate for the Supreme Court.

"Someone said to me that I was the Robert Bork of my generation," he reported
the other day.

Yet Yoo, 38, an engaging and outspoken lifelong conservative who clerked for
Supreme Court Justice Clarence Thomas, can be found at seminars and radio
microphones, standing up for Bush administration legal arguments that will be
studied for decades.

"The worst thing you could do, now that people are critical of your views, is to
run and hide. I agree with the work I did. I have an obligation to explain it,"
Yoo said from his Berkeley office. "I'm one of the few people who is willing to
defend decisions I made in government."

Those decisions, made when he was a mid-level Justice Department adviser, have
been the most fiercely contested legal positions of the Bush presidency. Framing
the battle against terrorism as a wartime emergency, Yoo redefined torture,
reinterpreted the Constitution and classified as archaic the long-established
humanitarian rules of the battlefield.

Yoo wrote a memo that said the White House was not bound by a federal law
prohibiting warrantless eavesdropping on communications that originated or ended
in the United States. When news of the program broke, members of both parties
called for hearings.

Yoo believes he was correct, even if critics say the U.S. response to the Sept.
11, 2001, attacks "threatens the very idea of America," as one editorial said.
"It would be inappropriate for a lawyer to say, 'The law means A, but I'm going
to say B because to interpret it as A would violate American values,'" Yoo said.
"A lawyer's job is if the law says A, the law says A."

How Yoo, who has never met President Bush or Vice President Cheney, came to be a
principal interpreter of laws and the Constitution for the Bush team is a story
rooted in his conservative convictions and a network of like-minded thinkers who
helped him thrive.

"He has succeeded and won people over and advanced his ideas," said Manus
Cooney, who hired Yoo on to the Judiciary Committee staff of Sen. Orrin G. Hatch
(R-Utah) in 1995. "As far as conservative academics, I don't think there's
anyone in the law whose contacts run deeper in the three branches, or higher."

Yoo traces his convictions in no small part to his parents, and Ronald Reagan.
His father and mother are psychiatrists who grew up in Korea during the Japanese
occupation and the Korean War. They emigrated in 1967, when Yoo was 3 months
old. They sought three things, he said: education, economic opportunity and
democracy. They settled in Philadelphia because they admired Eugene Ormandy,
then conductor of the Philadelphia Orchestra.

Coming of age in an anti-communist household, Yoo said, he associated strong
opposition to communist rule with the Republican Party and was himself
"attracted to Reagan's message." What he liked most in conservatism was "the
grounding in reason and reasonableness."

Yoo attended Episcopal Academy, a private religious school where he studied
history, Latin and Greek. Then came Harvard, where he discovered that many
people he encountered "were very different-minded, who thought that
conservatives were actually sort of stupid or backward." He studied diplomatic
history and worked for the school newspaper, where in 1988 he wrote a
presidential endorsement of George H.W. Bush rejected by the editorial board's
liberal majority.

"It got even worse at law school," Yoo said, recalling the first meeting he
attended at the Federalist Society, a national organization of conservatives and
libertarians, which attracted all of nine people. Critical of some fellow
students who, he said, considered abortion and affirmative action to be the
era's most important questions, he settled on matters of war and peace.

With the help of his Federalist Society contacts, he landed a clerkship with
U.S. Appeals Judge Laurence H. Silberman, known for his experience in national
security issues. Soon after being hired at Berkeley, which Yoo described as the
best school to offer him a tenure-track job, he left for the Supreme Court,
where he clerked for Thomas and played squash with Justice Antonin Scalia.

Yoo reached the Judiciary Committee staff after Hatch began a search for bright,
conservative up-and-comers. Cooney, the staff director, said Yoo maneuvered
well: "His smarts are undeniable, but unlike others of similar or equal wattage,
he has an appreciation for the political nature of D.C."

Returning to Berkeley, Yoo -- who had interned for the Wall Street Journal --
turned to his legal writings and op-eds. He earned tenure in 1999.

Along the way, he became a regular at the conservative American Enterprise
Institute in Washington, where he often found himself in sync with international
law skeptic John R. Bolton, an ally of Cheney's and now ambassador to the United
Nations. Yoo also testified to the GOP-led Florida legislature during the 2000
presidential recount.

Despite his resume and connections, Yoo required a particular convergence for
his views to become as influential as they did. He needed a well-placed
position, a national crisis and a receptive audience. He quickly got all three.

Known for his belief in a strong presidency, he joined the Justice Department's
Office of Legal Counsel, which advises the attorney general and the White House,
in July 2001. Two months later came the terrorist attacks and the rush to
respond. Soon, Yoo found his audience in the highest echelons of the White
House, where the president and vice president already tended to see the courts,
Congress and international conventions as constraints on the conduct of foreign
affairs and national security.

"He was the right person in the right place at the right time," said Georgetown
University's David Cole, a constitutional scholar and administration critic.
"Here was someone who had made his career developing arguments for unchecked
power, who could cut-and-paste from his law review articles into memos that
essentially told the president, 'You can do what you want.' "

In a series of opinions, Yoo argued that the Constitution grants the president
virtually unhindered discretion in wartime. He said the fight against terrorism,
with no fixed battlefield or uniformed enemy, was a new kind of war.

Two weeks after Sept. 11, Yoo said in a memo for the White House that the
Constitution conferred "plenary," or absolute, authority to use force abroad,
"especially in response to grave national emergencies created by sudden,
unforeseen attacks on the people and territory of the United States."

In reasoning Bush cited last week in defending his decision to authorize
warrantless wiretapping of U.S. citizens, Yoo's Sept. 25, 2001, memo said
Congress granted the president great latitude on Sept. 14, 2001, when it
supported the use of force in response to the attacks. The resolution specified
the Sept. 11 plotters and their supporters.

"Nonetheless," the memo concluded, "the President's broad constitutional power
to use military force to defend the Nation, recognized by the Joint Resolution
itself, would allow the President to take whatever actions he deems appropriate
to pre-empt or respond to terrorist threats from new quarters."

The majority view among constitutional scholars holds that the Framers purposely
imposed checks on the executive branch, even in wartime, not least in reaction
to the rule of Britain's King George III. On such issues, Yoo's critics contend,
he went too far. "It's largely a misreading of original intent," Cole said. "The
Framers, above all, were concerned about a strong executive."

An Aug. 1, 2002, memo on interrogation, written largely by Yoo, drew the most
intense criticism. Saying the administration was not bound by federal anti-
torture laws, it declared that, to be considered torture, techniques must
produce lasting psychological damage or suffering "equivalent in intensity to
the pain accompanying serious physical injury, such as organ failure, impairment
of bodily function, or even death."

Word of the memo sparked an outcry, causing the White House to back away.

"The idea that . . . Congress has no authority to impose limits on torture has
little support in constitutional texts or history, or legal precedent," said
University of Chicago law professor Cass Sunstein. Yet Sunstein, like many of
Yoo's critics, called him "a very interesting and provocative scholar" who
"doesn't deserve the demonization to which he has been subject."

Yoo thinks his critics should understand that he offered legal advice, while
others made policy.

"I think people don't understand how difficult was the work we did, how
difficult the questions, how recent the 9/11 attacks were," he said. "There was
no book at the time you could open and say, 'under American law, this is what
torture means.' "

"The lawyer's job is to say, 'This is what the law says and this is what you
can't do,' " Yoo said. He advised the White House that the Geneva Conventions do
not apply to al Qaeda or the terrorism fight, "but the president could say as a
matter of policy we're going to apply them anyway."

Elisa Massimino, Washington director of Human Rights First, is among those who
say Yoo deserves considerable blame. "The issues which have most disturbed
Americans about the conduct of the executive branch in fighting terrorism can
ultimately be traced to legal theories that he espoused in memos pushing the
administration in that direction," she said.

Yoo draws inspiration from Thomas and Hatch, saying, "I've seen how they've
persevered and still stand up for what they believe in and get their point
across." It is a style affirmed by Bork, who wrote a glowing blurb for Yoo's new
book, "The Powers of War and Peace."

"He's just being vilified. It's the usual conduct of business in this town right
now," Bork said. "You argue your position. What else can you do? There's no
tactic that can deflect criticism."

[ Research editor Lucy Shackelford and researcher Julie Tate contributed to this
report. ]

*


Seattle Post-Intelligencer --

December 24, 2005

SECRET COURT MODIFIED WIRETAP REQUESTS
Intervention may have led Bush to bypass panel

By Stewart M. Powell

http://seattlepi.nwsource.com/national/253334_nsaspying24.html

WASHINGTON -- Government records show that the administration was encountering
unprecedented second-guessing by the secret federal surveillance court when
President Bush decided to bypass the panel and order surveillance of U.S.-based
terror suspects without the court's approval.

A review of Justice Department reports to Congress shows that the 26-year-old
Foreign Intelligence Surveillance Court modified more wiretap requests from the
Bush administration than from the four previous presidential administrations
combined.

The court's repeated intervention in Bush administration wiretap requests may
explain why the president decided to bypass the court nearly four years ago to
launch secret National Security Agency spying on hundreds and possibly thousands
of Americans and foreigners inside the United States, according to James
Bamford, an acknowledged authority on the supersecret NSA, which intercepts
telephone calls, e-mails, faxes and Internet communications.

"They wanted to expand the number of people they were eavesdropping on, and they
didn't think they could get the warrants they needed from the court to monitor
those people," said Bamford, author of "Body of Secrets: Anatomy of the Ultra-
Secret National Security Agency" and "The Puzzle Palace: Inside America's Most
Secret Intelligence Organization." "The FISA court has shown its displeasure by
tinkering with these applications by the Bush administration."

Bamford offered his speculation in an interview last week.

The 1978 Foreign Intelligence Surveillance Act, adopted by Congress in the wake
of President Nixon's misuse of the NSA and the CIA before his resignation over
Watergate, sets a high standard for court-approved wiretaps on Americans and
resident aliens inside the United States.

To win a court-approved wiretap, the government must show "probable cause" that
the target of the surveillance is a member of a foreign terrorist organization
or foreign power and is engaged in activities that "may" involve a violation of
criminal law.

Faced with that standard, Bamford said, the Bush administration had difficulty
obtaining FISA court-approved wiretaps on dozens of people within the United
States who were communicating with targeted al-Qaida suspects inside the United
States.

The 11-judge court that authorizes FISA wiretaps has approved at least 18,740
applications for electronic surveillance or physical searches from five
presidential administrations since 1979.

The judges modified only two search warrant orders out of the 13,102
applications that were approved over the first 22 years of the court's
operation. In 20 of the first 21 annual reports on the court's activities up to
1999, the Justice Department told Congress that "no orders were entered (by the
FISA court) which modified or denied the requested authority" submitted by the
government.

But since 2001, the judges have modified 179 of the 5,645 requests for court-
ordered surveillance by the Bush administration. A total of 173 of those court-
ordered "substantive modifications" took place in 2003 and 2004 -- the most
recent years for which public records are available.

The judges also rejected or deferred at least six requests for warrants during
those two years -- the first outright rejection in the court's history.

Attorney General Alberto Gonzales said last week that Bush authorized NSA
surveillance of overseas communications by U.S.-based terror suspects because
the FISA court's approval process was too cumbersome.

The Bush administration, responding to concerns expressed by some judges on the
11-member panel, agreed last week to give them a classified briefing on the
domestic spying program. U.S. District Judge Malcolm Howard, a member of the
panel, told CNN that the Bush administration agreed to brief the judges after
U.S. District Judge James Robertson resigned from the FISA panel, apparently to
protest Bush's spying program.

Bamford, 59, a Vietnam-era Navy veteran, likens the Bush administration's
domestic surveillance without court approval to Nixon-era abuses of intelligence
agencies.

NSA and previous eavesdropping agencies collected duplicates of all
international telegrams to and from the United States for decades during the
Cold War under a program code-named "Shamrock" before the program ended in the
1970s. A program known as "Minaret" tracked 75,000 Americans whose activities
had drawn government interest between 1952 and 1974, including participation in
the anti-war movement during the Vietnam War.

"NSA prides itself on learning the lessons of the 1970s and obeying the legal
restrictions imposed by FISA," Bamford said. "Now it looks like we're going back
to the bad old days again."

*


Boston Globe --

December 23, 2005

WIRETAPS SAID TO SIFT ALL OVERSEAS CONTACTS

By Charlie Savage

WASHINGTON -- The National Security Agency, in carrying out President Bush's
order to intercept the international phone calls and e-mails of Americans
suspected of links to Al Qaeda, has probably been using computers to monitor all
other Americans' international communications as well, according to specialists
familiar with the workings of the NSA.

The Bush administration and the NSA have declined to provide details about the
program the president authorized in 2001, but specialists said the agency serves
as a vast data collection and sorting operation. It captures reams of data from
satellites, fiberoptic lines, and Internet switching stations, and then uses a
computer to check for names, numbers, and words that have been identified as
suspicious.

"The whole idea of the NSA is intercepting huge streams of communications,
taking in 2 million pieces of communications an hour," said James Bamford, the
author of two books on the NSA, who was the first to reveal the inner workings
of the secret agency.

"They have a capacity to listen to every overseas phone call," said Tom
Blanton, director of the National Security Archive at George Washington
University, which has obtained documents about the NSA using Freedom of
Information Act requests.

The NSA's system of monitoring e-mails and phone calls to check for search terms
has been used for decades overseas, where the Constitution's prohibition on
unreasonable searches does not apply, declassified records have shown.

But since Bush's order in 2001, Bamford and other specialists said, the same
process has probably been used to sort through international messages to and
from the United States, though humans have never seen the vast majority of the
data.

"The collection of this data by automated means creates new privacy risks,"
said Marc Rotenberg, executive director of the Electronic Privacy Information
Center, a watchdog group that has studied computer-filtered surveillance
technology through Freedom of Information Act lawsuits.

Among the risks, he said, is that the spy agency's computers will collect
personal information that has no bearing on national security, and that
intelligence agents programming those computers will be tempted to abuse their
power to eavesdrop for personal or political gain.

But even when no personal information intercepted by the NSA's computers make it
to human eyes and ears, Rotenberg said, the mere fact that spy computers are
monitoring the calls and e-mails may also violate the Fourth Amendment. The
Supreme Court has never ruled on whether automated surveillance of phone calls
and e-mails, without a warrant, is constitutional.

The closest comparisons, legal specialists said, are cases challenging the use
of dogs and infrared detectors to look for drugs without a warrant. The Supreme
Court approved the use of drug-sniffing dogs to examine luggage in an airport,
but said police could not use infrared scanners to check houses for heat
patterns that could signal an illegal drug operation.

"This is very much a developing field, and a lot of the law is not clear," said
Harvard Law School professor Bill Stuntz.

President Bush and his aides have refused to answer questions about the domestic
spying program, other than to insist that it was legal. Attorney General Alberto
Gonzales this week said the program only targeted messages "where we have a
reasonable basis to conclude" that one of the parties is affiliated with Al
Qaeda.

And some legal scholars have maintained that a computer cannot violate other
Americans' Fourth Amendment rights simply by sorting through their messages, as
long as no human being ever looks at them.

Alane Kochems, a lawyer and a national security analyst at the conservative
Heritage Foundation, said, "I don't think your privacy is violated when you
have a computer doing it as opposed to a human. It isn't a sentient being. It's
a machine running a program."

But Yale Law School professor Jack Balkin said that Fourth Amendment privacy
rights can still be violated without human contact if the NSA stores copies of
everyone's messages, raising the possibility that a human could access them
later. The administration has not revealed how long the NSA stores messages, and
the agency has refused to comment on the program.

Balkin added that as technology becomes ever more sophisticated, any legal
distinction between human agents and their tools is losing meaning. Under the
theory that only human beings can invade people's privacy, he said, the police
"could simply use robots to do their dirty work."

In 1978, following revelations that President Nixon had used the NSA to spy on
his domestic enemies, Congress enacted a law making it illegal to wiretap a US
citizen without permission from a secret national security court. The court
requires the government to show evidence that the target is a suspected spy or
terrorist.

Under the 1978 law, NSA officials have had to obtain a warrant from the secret
court before putting an American's information into their computers' search
terms.

The restrictions largely limited NSA to collecting messages from overseas
communications networks, but some Americans' messages were intercepted before
the 2001 terrorist attacks.

Occasionally, the interception was deliberate. In April 2000, the NSA's then-
director, General Michael Hayden, told Congress that since 1978 "there have
been no more than a very few instances of NSA seeking [court] authorization to
target a US person in the United States."

More often, the interception was accidental. Because American international
calls travel through foreign networks, some of which are monitored by the NSA,
the agency's computers have sifted through some American international messages
all along.

"Long before 9/11, the NSA gathered from the ether mountains of [overseas]
phone calls and e-mail messages on a daily basis," said Columbia Law School
professor Deborah Livingston. "If you have such an extensive foreign operation,
you'll gather a large amount of phone traffic and e-mails involving Americans.
That's something we've lived with for a long time."

But Bush's order cleared the way for the NSA computers to sift through
Americans' phone calls and e-mails.

According to a New York Times report last week, Bush authorized the NSA's human
analysts to look at the international messages of up to 500 Americans at a time,
with a changing list of targets.

Hayden, now the deputy director of national intelligence, told reporters this
week that under Bush's order, a "shift supervisor" instead of a judge signs off
on deciding whether or not to search for an American's messages.

The general conceded that without the burden of obtaining warrants, the NSA has
used "a quicker trigger" and "a subtly softer trigger" when deciding to track
someone.

Bamford said that Hayden's "subtly softer trigger" probably means that the NSA
is monitoring a wider circle of contacts around suspects than what a judge would
approve.

© Copyright 2005 Globe Newspaper Company.

*


Boston Globe --

December 20, 2005

BUSH BYPASSED COMPLIANT COURT ON WIRETAPPING
Warrants rarely denied

By Charlie Savage

http://www.boston.com/news/nation/washington/articles/2005/12/20/
bush_bypassed_compliant_court_on_wiretapping/

WASHINGTON -- The court that authorizes wiretaps on terrorism suspects had not
rejected a government request for a warrant in its 22-year existence to 2001,
when President Bush issued an order allowing agents to wiretap citizens without
judicial approval.

Bush's actions surprised many lawyers familiar with the court's workings,
because federal law allows the US attorney general to authorize wiretaps without
waiting for a warrant, as long as federal agents later present evidence to a
judge.

Bush and his advisers have argued that the need for rapid monitoring of
international telephone calls involving terrorism suspects had justified his
decision to allow agents to bypass the surveillance law.

The court "doesn't provide the speed and the agility that we need in all
circumstances to deal with this new kind of threat," Attorney General Alberto
Gonzales said yesterday.

But many lawyers familiar with the Foreign Intelligence Surveillance Court, as
the group of judges who secretly authorize national security wiretaps is known,
challenged Gonzales's description of the court procedures as cumbersome. Records
showed that the court had rejected none of more than 11,000 requests for
warrants from 1979 through 2001. Since then, it has rejected just four of more
than 5,200 applications.

"It's a rubber stamp," said Marc Rotenberg, executive director of the Electronic
Privacy Information Center, a think tank that monitors electronic government
surveillance. Given the court's receptiveness to wiretapping, Bush's decision to
disregard the law "is all the more extraordinary," he said.

Gonzales also said yesterday that the Bush administration had considered asking
Congress to give the government more flexibility in quickly planting wiretaps on
international calls, but that it had decided to avoid a political fight that
would draw attention to the domestic spying program.

"We've had discussions with . . . certain members of Congress about whether or
not we could get an amendment to [the surveillance law], and we were advised
that that was not something we could likely get, certainly not without
jeopardizing the existence of the program, and, therefore, killing the program,"
Gonzales said. He did not name any of the legislators who had been consulted.

Critics of the administration have noted that after the 2001 terrorist attacks,
Congress was eager to give the administration almost any counterterrorism tool
it asked for -- including relaxing standards for national security wiretaps.

For example, in the USA Patriot Act, passed in 2001, Congress expanded a program
allowing the attorney general to approve emergency wiretaps without warrants,
giving agents 72 hours to present evidence, rather than 24.

"We have changed aspects of that law at the request of the administration in the
USA Patriot Act to allow for a more aggressive but still lawful defense against
terror," Senator Dianne Feinstein, Democrat of California, said in a Senate
speech on Friday, criticizing Bush's decision to authorize wiretaps on his own.

Congress set up the special electronic surveillance court in 1978 in response to
revelations that former President Richard M. Nixon had used the FBI to spy on
his domestic enemies. The law required the government to obtain a warrant from
the court before it could wiretap a phone line.

The court is composed of federal judges who are appointed by the Supreme Court's
chief justice to oversee wiretap requests on an ongoing basis.

A single judge can authorize a wiretap if the FBI shows evidence that there is
probable cause to believe that a target is affiliated with a foreign power.
Originally the main targets were Soviet spies, but in recent years much of the
focus has shifted to Al Qaeda members.

If FBI agents wanted to tap a telephone line as part of a national security
investigation, they would give a government lawyer information about the suspect
-- such as where the phone number came from and how the target might be linked
to a foreign power.

Lawyers may reject applications before taking them to a judge, but such
occurrences are rare, according to those familiar with the process.

General Michael V. Hayden, the former director of the National Security Agency,
which oversees Bush's secret wiretapping program, defended the administration's
bypassing of the court yesterday, arguing that the court's procedures were
inefficient.

Agents must move quickly when they come across phone numbers or e-mail addresses
associated with Al Qaeda, he said.

"The whole key here is agility," said Hayden, who is now Bush's deputy director
of national intelligence. He said that following the surveillance law "involves
marshaling arguments [and] looping paperwork around, even in the case of
emergency authorizations from the attorney general."

But Michael Woods, who served as chief of the national security law unit at the
Federal Bureau of Investigation from 1997 to 2002, said yesterday that while
wiretap requests for routine investigations can take weeks for approval, wiretap
orders for urgent investigations can be obtained within hours. Sometimes agents
even go to the judges' homes in the middle of the night, he said.

"This process can be done very quickly," Woods said. "If this is seen as a very
hot thing, it can be pushed through in days, or even hours.

"And," Woods added in his statement, "on top of that there is the provision that
says that if it's a real emergency, the attorney general can authorize the
surveillance verbally, and then you have 72 hours to get everything in front of
a judge."

As national security specialists tried to understand why the administration had
felt a need to sidestep the surveillance law, members of Congress continued to
boil over the revelation that Bush believes he has the legal authority to do so.

There were signs that the dispute could spill over into next month's Supreme
Court confirmation hearings for Judge Samuel A. Alito Jr.

Alito, a former Reagan administration lawyer, has advocated a strong view of
presidential power.

Senators Arlen Specter of Pennsylvania and Patrick J. Leahy of Vermont, the GOP
chairman and the ranking Democrat on the Judiciary Committee, each sent letters
to Alito yesterday.

In the letters, both senators warned that his views on the limits of executive
power in wartime will be a focus of his hearing.

"Do you agree with Justice O'Connor's statement that 'war is not a blank check
for the president?' " Specter wrote.

"In light of Justice O'Connor's statement, what jurisprudential theory would you
invoke to evaluate the limits on the president's authority to conduct
surveillance on US citizens without going through the court system?"

Also yesterday, Senator John D. Rockefeller IV of West Virginia, the top
Democrat on the Senate Select Committee on Intelligence, released a copy of a
letter he had sent to Vice President Dick Cheney in July 2003, after Cheney had
briefed him on the outlines of the spying program. Rockefeller was not allowed
to talk about the program. In the letter, Rockefeller had said that Congress was
unable to conduct "meaningful oversight" of the program, including whether it
was legal.

© Copyright 2005 Globe Newspaper Company

*


New York Times --

December 17, 2005
BEHIND POWER, ONE PRINCIPLE AS BUSH PUSHES PREROGATIVES
By Scott Shane

http://www.nytimes.com/2005/12/17/politics/17legal.html

WASHINGTON, Dec. 16 - A single, fiercely debated legal principle lies behind
nearly every major initiative in the Bush administration's war on terror,
scholars say: the sweeping assertion of the powers of the presidency.
Bush Lets U.S. Spy on Callers Without Courts (December 16, 2005)

From the government's detention of Americans as "enemy combatants" to the just-
disclosed eavesdropping in the United States without court warrants, the
administration has relied on an unusually expansive interpretation of the
president's authority. That stance has given the administration leeway for
decisive action, but it has come under severe criticism from some scholars and
the courts.

With the strong support of Vice President Dick Cheney, legal theorists in the
White House and Justice Department have argued that previous presidents
unjustifiably gave up some of the legitimate power of their office. The attacks
of Sept. 11, 2001, made it especially critical that the full power of the
executive be restored and exercised, they said.

The administration's legal experts, including David S. Addington, the vice
president's former counsel and now his chief of staff, and John C. Yoo, deputy
assistant attorney general in the Office of Legal Counsel of the Justice
Department from 2001 to 2003, have pointed to several sources of presidential
authority.

The bedrock source is Article 2 of the Constitution, which describes the
"executive power" of the president, including his authority as commander in
chief of the armed forces. Several landmark court decisions have elaborated the
extent of the powers.

Another key recent document cited by the administration is the joint resolution
passed by Congress on Sept. 14, 2001, authorizing the president to "use all
necessary and appropriate force" against those responsible for Sept. 11 in order
to prevent further attacks.

Mr. Yoo, who is believed to have helped write a legal justification for the
National Security Agency's secret domestic eavesdropping, first laid out the
basis for the war on terror in a Sept. 25, 2001, memorandum that said no statute
passed by Congress "can place any limits on the president's determinations as to
any terrorist threat, the amount of military force to be used in response, or
the method, timing and nature of the response."

That became the underlying justification for numerous actions apart from the
eavesdropping program, disclosed by The New York Times on Thursday night. Those
include the order to try accused terrorists before military tribunals; the
detention of so-called enemy combatants at Guantánamo Bay, Cuba, and in secret
overseas jails operated by the Central Intelligence Agency; the holding of two
Americans, Jose Padilla and Yaser Esam Hamdi, as enemy combatants; and the use
of severe interrogation techniques, including some banned by international
agreements, on Al Qaeda figures.

Mr. Yoo, now a law professor at the University of California, Berkeley, declined
to comment for this article. But Bradford A. Berenson, who served as associate
counsel to President Bush from 2001 to 2003, explained the logic behind the
assertion of executive power.

"After 9/11 the president felt it was incumbent on him to use every ounce of
authority available to him to protect the American people," Mr. Berenson said.

He said he was not familiar with the N.S.A. program, in which the intelligence
agency, without warrants, has monitored international telephone calls and
international e-mail messages of people inside the United States. He said that
he could not comment on whether the program was justified, but that he believed
intelligence gathering on an enemy was clearly part of the president's
constitutional war powers.

"Any program like this would have been very carefully analyzed by administration
lawyers," Mr. Berenson said. "It's easy, now that four years have passed without
another attack, to forget the sense of urgency that pervaded the country when
the ruins of the World Trade Center were still smoking."

But some legal experts outside the administration, including some who served
previously in the intelligence agencies, said the administration had pushed the
presidential-powers argument beyond what was legally justified or prudent. They
say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush's
assertion of his powers.

"Obviously we have to do things differently because of the terrorist threat,"
said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the
Central Intelligence Agency, who served under both Republican and Democratic
administrations. "But to do it without the participation of the Congress and the
courts is unwise in the extreme."

Even if the administration believes the president has the authority to direct
warrantless eavesdropping, she said, ordering it without seeking Congressional
approval was politically wrongheaded. "We're just relearning the lessons of
Vietnam and Watergate," said Ms. Parker, now dean of the University of the
Pacific McGeorge School of Law.

Jeffrey H. Smith, who served as C.I.A. general counsel in 1995 and 1996, said he
was dismayed by the N.S.A. program, which he said was the latest instance of
legal overreach by the administration.

"Clearly the president felt after 9/11 that he needed more powers than his
predecessors had exercised," Mr. Smith said. "He chose to assert as much power
as he thought he needed. Now the question is whether that was wise and
consistent with our values."

William C. Banks, a widely respected authority on national security law at
Syracuse University, said the N.S.A. revelation came as a shock, even given the
administration's past assertions of presidential powers.

"I was frankly astonished by the story," he said. "My head is spinning."

Professor Banks said the president's power as commander in chief "is really
limited to situations involving military force - anything needed to repel an
attack. I don't think the commander in chief power allows" the warrantless
eavesdropping, he said.

Mr. Berenson, the former White House associate counsel, said that in rare cases,
the presidents' advisers may decide that an existing law violates the
Constitution "by invading the president's executive powers as commander in
chief."

The Foreign Intelligence Surveillance Act of 1978 typically requires warrants
for the kind of eavesdropping carried out under the special N.S.A. program.
Whether administration lawyers argued that that statute unconstitutionally
infringed the president's powers is not known.

But Mr. Smith, formerly of the C.I.A., noted that when President Carter signed
the act into law in 1978, he seemed to rule out any domestic eavesdropping
without court approval.

"The bill requires, for the first time, a prior judicial warrant for all
electronic surveillance for foreign intelligence or counterintelligence purposes
in the United States" if an American's communications might be intercepted,
President Carter said when he signed the act.

By asserting excessive powers, Mr. Smith said, President Bush may provoke a
reaction from Congress and the courts that ultimately thwarts executive power.

"The president may wind up eroding the very powers he was seeking to exert," Mr.
Smith said.

*


New York Times --

December 16, 2005
BUSH LETS U.S. SPY ON CALLERS WITHOUT COURTS
By James Risen and Eric Lichtblau

http://www.nytimes.com/2005/12/16/politics/16program.html

WASHINGTON, Dec. 15 - Months after the Sept. 11 attacks, President Bush secretly
authorized the National Security Agency to eavesdrop on Americans and others
inside the United States to search for evidence of terrorist activity without
the court-approved warrants ordinarily required for domestic spying, according
to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored
the international telephone calls and international e-mail messages of hundreds,
perhaps thousands, of people inside the United States without warrants over the
past three years in an effort to track possible "dirty numbers" linked to Al
Qaeda, the officials said. The agency, they said, still seeks warrants to
monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the
country without court approval was a major shift in American intelligence-
gathering practices, particularly for the National Security Agency, whose
mission is to spy on communications abroad. As a result, some officials familiar
with the continuing operation have questioned whether the surveillance has
stretched, if not crossed, constitutional limits on legal searches.

"This is really a sea change," said a former senior official who specializes in
national security law. "It's almost a mainstay of this country that the N.S.A.
only does foreign searches."

Nearly a dozen current and former officials, who were granted anonymity because
of the classified nature of the program, discussed it with reporters for The New
York Times because of their concerns about the operation's legality and
oversight.

According to those officials and others, reservations about aspects of the
program have also been expressed by Senator John D. Rockefeller IV, the West
Virginia Democrat who is the vice chairman of the Senate Intelligence Committee,
and a judge presiding over a secret court that oversees intelligence matters.
Some of the questions about the agency's new powers led the administration to
temporarily suspend the operation last year and impose more restrictions, the
officials said.

The Bush administration views the operation as necessary so that the agency can
move quickly to monitor communications that may disclose threats to the United
States, the officials said. Defenders of the program say it has been a critical
tool in helping disrupt terrorist plots and prevent attacks inside the United
States.

Administration officials are confident that existing safeguards are sufficient
to protect the privacy and civil liberties of Americans, the officials say. In
some cases, they said, the Justice Department eventually seeks warrants if it
wants to expand the eavesdropping to include communications confined within the
United States. The officials said the administration had briefed Congressional
leaders about the program and notified the judge in charge of the Foreign
Intelligence Surveillance Court, the secret Washington court that deals with
national security issues.

The White House asked The New York Times not to publish this article, arguing
that it could jeopardize continuing investigations and alert would-be terrorists
that they might be under scrutiny. After meeting with senior administration
officials to hear their concerns, the newspaper delayed publication for a year
to conduct additional reporting. Some information that administration officials
argued could be useful to terrorists has been omitted.

Dealing With a New Threat

While many details about the program remain secret, officials familiar with it
say the N.S.A. eavesdrops without warrants on up to 500 people in the United
States at any given time. The list changes as some names are added and others
dropped, so the number monitored in this country may have reached into the
thousands since the program began, several officials said. Overseas, about 5,000
to 7,000 people suspected of terrorist ties are monitored at one time, according
to those officials.

Several officials said the eavesdropping program had helped uncover a plot by
Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003
to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with
blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb
attacks on British pubs and train stations, was exposed last year in part
through the program, the officials said. But they said most people targeted for
N.S.A. monitoring have never been charged with a crime, including an Iranian-
American doctor in the South who came under suspicion because of what one
official described as dubious ties to Osama bin Laden.

The eavesdropping program grew out of concerns after the Sept. 11 attacks that
the nation's intelligence agencies were not poised to deal effectively with the
new threat of Al Qaeda and that they were handcuffed by legal and bureaucratic
restrictions better suited to peacetime than war, according to officials. In
response, President Bush significantly eased limits on American intelligence and
law enforcement agencies and the military.

But some of the administration's antiterrorism initiatives have provoked an
outcry from members of Congress, watchdog groups, immigrants and others who
argue that the measures erode protections for civil liberties and intrude on
Americans' privacy.

Opponents have challenged provisions of the USA Patriot Act, the focus of
contentious debate on Capitol Hill this week, that expand domestic surveillance
by giving the Federal Bureau of Investigation more power to collect information
like library lending lists or Internet use. Military and F.B.I. officials have
drawn criticism for monitoring what were largely peaceful antiwar protests. The
Pentagon and the Department of Homeland Security were forced to retreat on plans
to use public and private databases to hunt for possible terrorists. And last
year, the Supreme Court rejected the administration's claim that those labeled
"enemy combatants" were not entitled to judicial review of their open-ended
detention.

Mr. Bush's executive order allowing some warrantless eavesdropping on those
inside the United States - including American citizens, permanent legal
residents, tourists and other foreigners - is based on classified legal opinions
that assert that the president has broad powers to order such searches, derived
in part from the September 2001 Congressional resolution authorizing him to wage
war on Al Qaeda and other terrorist groups, according to the officials familiar
with the N.S.A. operation.

The National Security Agency, which is based at Fort Meade, Md., is the nation's
largest and most secretive intelligence agency, so intent on remaining out of
public view that it has long been nicknamed "No Such Agency." It breaks codes
and maintains listening posts around the world to eavesdrop on foreign
governments, diplomats and trade negotiators as well as drug lords and
terrorists. But the agency ordinarily operates under tight restrictions on any
spying on Americans, even if they are overseas, or disseminating information
about them.

What the agency calls a "special collection program" began soon after the Sept.
11 attacks, as it looked for new tools to attack terrorism. The program
accelerated in early 2002 after the Central Intelligence Agency started
capturing top Qaeda operatives overseas, including Abu Zubaydah, who was
arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers,
cellphones and personal phone directories, said the officials familiar with the
program. The N.S.A. surveillance was intended to exploit those numbers and
addresses as quickly as possible, they said.

In addition to eavesdropping on those numbers and reading e-mail messages to and
from the Qaeda figures, the N.S.A. began monitoring others linked to them,
creating an expanding chain. While most of the numbers and addresses were
overseas, hundreds were in the United States, the officials said.

Under the agency's longstanding rules, the N.S.A. can target for interception
phone calls or e-mail messages on foreign soil, even if the recipients of those
communications are in the United States. Usually, though, the government can
only target phones and e-mail messages in the United States by first obtaining a
court order from the Foreign Intelligence Surveillance Court, which holds its
closed sessions at the Justice Department.

Traditionally, the F.B.I., not the N.S.A., seeks such warrants and conducts most
domestic eavesdropping. Until the new program began, the N.S.A. typically
limited its domestic surveillance to foreign embassies and missions in
Washington, New York and other cities, and obtained court orders to do so.

Since 2002, the agency has been conducting some warrantless eavesdropping on
people in the United States who are linked, even if indirectly, to suspected
terrorists through the chain of phone numbers and e-mail addresses, according to
several officials who know of the operation. Under the special program, the
agency monitors their international communications, the officials said. The
agency, for example, can target phone calls from someone in New York to someone
in Afghanistan.

Warrants are still required for eavesdropping on entirely domestic-to-domestic
communications, those officials say, meaning that calls from that New Yorker to
someone in California could not be monitored without first going to the Federal
Intelligence Surveillance Court.

A White House Briefing

After the special program started, Congressional leaders from both political
parties were brought to Vice President Dick Cheney's office in the White House.
The leaders, who included the chairmen and ranking members of the Senate and
House intelligence committees, learned of the N.S.A. operation from Mr. Cheney,
Lt. Gen. Michael V. Hayden of the Air Force, who was then the agency's director
and is now a full general and the principal deputy director of national
intelligence, and George J. Tenet, then the director of the C.I.A., officials
said.

It is not clear how much the members of Congress were told about the
presidential order and the eavesdropping program. Some of them declined to
comment about the matter, while others did not return phone calls.

Later briefings were held for members of Congress as they assumed leadership
roles on the intelligence committees, officials familiar with the program said.
After a 2003 briefing, Senator Rockefeller, the West Virginia Democrat who
became vice chairman of the Senate Intelligence Committee that year, wrote a
letter to Mr. Cheney expressing concerns about the program, officials
knowledgeable about the letter said. It could not be determined if he received a
reply. Mr. Rockefeller declined to comment. Aside from the Congressional
leaders, only a small group of people, including several cabinet members and
officials at the N.S.A., the C.I.A. and the Justice Department, know of the
program.

Some officials familiar with it say they consider warrantless eavesdropping
inside the United States to be unlawful and possibly unconstitutional, amounting
to an improper search. One government official involved in the operation said he
privately complained to a Congressional official about his doubts about the
program's legality. But nothing came of his inquiry. "People just looked the
other way because they didn't want to know what was going on," he said.

A senior government official recalled that he was taken aback when he first
learned of the operation. "My first reaction was, 'We're doing what?' " he said.
While he said he eventually felt that adequate safeguards were put in place, he
added that questions about the program's legitimacy were understandable.

Some of those who object to the operation argue that is unnecessary. By getting
warrants through the foreign intelligence court, the N.S.A. and F.B.I. could
eavesdrop on people inside the United States who might be tied to terrorist
groups without skirting longstanding rules, they say.

The standard of proof required to obtain a warrant from the Foreign Intelligence
Surveillance Court is generally considered lower than that required for a
criminal warrant - intelligence officials only have to show probable cause that
someone may be "an agent of a foreign power," which includes international
terrorist groups - and the secret court has turned down only a small number of
requests over the years. In 2004, according to the Justice Department, 1,754
warrants were approved. And the Foreign Intelligence Surveillance Court can
grant emergency approval for wiretaps within hours, officials say.

Administration officials counter that they sometimes need to move more urgently,
the officials said. Those involved in the program also said that the N.S.A.'s
eavesdroppers might need to start monitoring large batches of numbers all at
once, and that it would be impractical to seek permission from the Foreign
Intelligence Surveillance Court first, according to the officials.

The N.S.A. domestic spying operation has stirred such controversy among some
national security officials in part because of the agency's cautious culture and
longstanding rules.

Widespread abuses - including eavesdropping on Vietnam War protesters and civil
rights activists - by American intelligence agencies became public in the 1970's
and led to passage of the Foreign Intelligence Surveillance Act, which imposed
strict limits on intelligence gathering on American soil. Among other things,
the law required search warrants, approved by the secret F.I.S.A. court, for
wiretaps in national security cases. The agency, deeply scarred by the scandals,
adopted additional rules that all but ended domestic spying on its part.

After the Sept. 11 attacks, though, the United States intelligence community was
criticized for being too risk-averse. The National Security Agency was even
cited by the independent 9/11 Commission for adhering to self-imposed rules that
were stricter than those set by federal law.

Concerns and Revisions

Several senior government officials say that when the special operation began,
there were few controls on it and little formal oversight outside the N.S.A. The
agency can choose its eavesdropping targets and does not have to seek approval
from Justice Department or other Bush administration officials. Some agency
officials wanted nothing to do with the program, apparently fearful of
participating in an illegal operation, a former senior Bush administration
official said. Before the 2004 election, the official said, some N.S.A.
personnel worried that the program might come under scrutiny by Congressional or
criminal investigators if Senator John Kerry, the Democratic nominee, was
elected president.

In mid-2004, concerns about the program expressed by national security
officials, government lawyers and a judge prompted the Bush administration to
suspend elements of the program and revamp it.

For the first time, the Justice Department audited the N.S.A. program, several
officials said. And to provide more guidance, the Justice Department and the
agency expanded and refined a checklist to follow in deciding whether probable
cause existed to start monitoring someone's communications, several officials
said.

A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees
the Federal Intelligence Surveillance Court, helped spur the suspension,
officials said. The judge questioned whether information obtained under the
N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap
warrant requests from the Justice Department, according to senior government
officials. While not knowing all the details of the exchange, several government
lawyers said there appeared to be concerns that the Justice Department, by
trying to shield the existence of the N.S.A. program, was in danger of
misleading the court about the origins of the information cited to justify the
warrants.

One official familiar with the episode said the judge insisted to Justice
Department lawyers at one point that any material gathered under the special
N.S.A. program not be used in seeking wiretap warrants from her court. Judge
Kollar-Kotelly did not return calls for comment.

A related issue arose in a case in which the F.B.I. was monitoring the
communications of a terrorist suspect under a F.I.S.A.-approved warrant, even
though the National Security Agency was already conducting warrantless
eavesdropping.

According to officials, F.B.I. surveillance of Mr. Faris, the Brooklyn Bridge
plotter, was dropped for a short time because of technical problems. At the
time, senior Justice Department officials worried what would happen if the
N.S.A. picked up information that needed to be presented in court. The
government would then either have to disclose the N.S.A. program or mislead a
criminal court about how it had gotten the information.

Several national security officials say the powers granted the N.S.A. by
President Bush go far beyond the expanded counterterrorism powers granted by
Congress under the USA Patriot Act, which is up for renewal. The House on
Wednesday approved a plan to reauthorize crucial parts of the law. But final
passage has been delayed under the threat of a Senate filibuster because of
concerns from both parties over possible intrusions on Americans' civil
liberties and privacy.

Under the act, law enforcement and intelligence officials are still required to
seek a F.I.S.A. warrant every time they want to eavesdrop within the United
States. A recent agreement reached by Republican leaders and the Bush
administration would modify the standard for F.B.I. wiretap warrants, requiring,
for instance, a description of a specific target. Critics say the bar would
remain too low to prevent abuses.

Bush administration officials argue that the civil liberties concerns are
unfounded, and they say pointedly that the Patriot Act has not freed the N.S.A.
to target Americans. "Nothing could be further from the truth," wrote John Yoo,
a former official in the Justice Department's Office of Legal Counsel, and his
co-author in a Wall Street Journal opinion article in December 2003. Mr. Yoo
worked on a classified legal opinion on the N.S.A.'s domestic eavesdropping
program.

At an April hearing on the Patriot Act renewal, Senator Barbara A. Mikulski,
Democrat of Maryland, asked Attorney General Alberto R. Gonzales and Robert S.
Mueller III, the director of the F.B.I., "Can the National Security Agency, the
great electronic snooper, spy on the American people?"

"Generally," Mr. Mueller said, "I would say generally, they are not allowed to
spy or to gather information on American citizens."

President Bush did not ask Congress to include provisions for the N.S.A.
domestic surveillance program as part of the Patriot Act and has not sought any
other laws to authorize the operation. Bush administration lawyers argued that
such new laws were unnecessary, because they believed that the Congressional
resolution on the campaign against terrorism provided ample authorization,
officials said.

The Legal Line Shifts

Seeking Congressional approval was also viewed as politically risky because the
proposal would be certain to face intense opposition on civil liberties grounds.
The administration also feared that by publicly disclosing the existence of the
operation, its usefulness in tracking terrorists would end, officials said.

The legal opinions that support the N.S.A. operation remain classified, but they
appear to have followed private discussions among senior administration lawyers
and other officials about the need to pursue aggressive strategies that once may
have been seen as crossing a legal line, according to senior officials who
participated in the discussions.

For example, just days after the Sept. 11, 2001, attacks on New York and the
Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum
that argued that the government might use "electronic surveillance techniques
and equipment that are more powerful and sophisticated than those available to
law enforcement agencies in order to intercept telephonic communications and
observe the movement of persons but without obtaining warrants for such uses."

Mr. Yoo noted that while such actions could raise constitutional issues, in the
face of devastating terrorist attacks "the government may be justified in taking
measures which in less troubled conditions could be seen as infringements of
individual liberties."

The next year, Justice Department lawyers disclosed their thinking on the issue
of warrantless wiretaps in national security cases in a little-noticed brief in
an unrelated court case. In that 2002 brief, the government said that "the
Constitution vests in the President inherent authority to conduct warrantless
intelligence surveillance (electronic or otherwise) of foreign powers or their
agents, and Congress cannot by statute extinguish that constitutional
authority."

Administration officials were also encouraged by a November 2002 appeals court
decision in an unrelated matter. The decision by the Foreign Intelligence
Surveillance Court of Review, which sided with the administration in dismantling
a bureaucratic "wall" limiting cooperation between prosecutors and intelligence
officers, cited "the president's inherent constitutional authority to conduct
warrantless foreign intelligence surveillance."

But the same court suggested that national security interests should not be
grounds "to jettison the Fourth Amendment requirements" protecting the rights of
Americans against undue searches. The dividing line, the court acknowledged, "is
a very difficult one to administer."

[ Barclay Walsh contributed research for this article. ]

*


Pakistan Press International Information Services --

December 13, 2005
GOVERNMENT TOLD TO FILE COMMENTS REGARDING DETENTION OF AL-QA'EDA LEADER

Karachi, December 13 (PPI): Federal law officer Tuesday told Sindh High
Court he has not received definite reply from interior and foreign
ministries so far regarding detention of Al-Qa'eda leader Khalid Sheikh
Mohammad by Pakistani government.

The court was hearing petition filed by sister of Al-Qa'eda leader Khalid
Sheikh Mohammad seeking production of her brother before court contending he
was still detained by federal government agencies. The clarification has
been sought by the court about the detention of petitioner's brother from
concerned authorities.

Petitioner Ms. Marium insisted detenue is still in custody of federal
government and the authorities concerned are not producing him before court
deliberately.

Standing counsel Mehmood Alam Rizvi submitted letters were issued to
concerned ministries for ascertaining the clarification about the detention
of detenue but so far no definite reply have been received and sought time
to submit it before the court. He told court concerned authorities requested
for further time to file statement in this regard.

Petitioner's counsel Ghulam Qadir Jatoi submitted Pakistan's foreign
minister in his reported statement on August 23, 2005, published in
newspapers, admitted that detenue Khalid Sheikh Mohammad was in the custody
of government of Pakistan and he was not handed over to US government.

He said custody of detenue is further proved as military court in Pakistan
has sentenced six Army personnel for having connection with extremists and
one Army Officer Major Adil Qadoosi was convicted as detenue was recovered
from his house in Rawalpindi in February 2003. The detention of petitioner's
relatives was also challenged in the petition.

Petitioner alleged LEA, besides her son Ammar alias Ali Abdul Aziz, an
alleged Al-Qa'eda financier, earlier arrested his brother Khalid Sheikh
Mohammad, two sons in laws Abdul Basit alias Ramzi Yousuf, Abdul Qadir and
nephew Abdul Karim Mehmood alias Abu Moosab Arochi after US invasion on
Afghanistan on suspicion of their links with Al-Qa'eda. SHC's division bench
comprising Justice Ghulam Rabbani and Justice Munib Ahmed Khan told federal
law officer to inform court about the actual position as if detainees were
arrested by law enforcement agencies why they were not produced before any
court of law. The next hearing of case has been adjourned till December 21,
2005.

(c) 2005 Asia Pulse Pty Limited

*


The New York Times --

December 12, 2005
REPORTER RECOUNTS TALK ABOUT CIA LEAK
By David Johnston

A reporter for Time magazine said Sunday that a lawyer for Karl Rove, the senior
White House adviser, was surprised when she suggested to him in the first half
of 2004 that Mr. Rove had probably been a source for the magazine's July 2003
article that discussed the C.I.A. officer at the heart of the leak case.

The reporter, Viveca Novak, wrote in a first-person article published on the
magazine's Web site that she met with Robert D. Luskin, a lawyer for Mr. Rove,
on three occasions in early 2004. She said it was likely in one of these
meetings that she hinted to Mr. Luskin that Mr. Rove had discussed the C.I.A.
officer with a Time colleague, Matthew Cooper.

Ms. Novak's conversation with Mr. Luskin has been under scrutiny by the special
counsel in the leak case, Patrick J. Fitzgerald. In her article, Ms. Novak wrote
that Mr. Fitzgerald sought to question her about the matter after Mr. Luskin
told him of their conversation about Mr. Rove, in the belief that the
information would help his client.

Ms. Novak said that before she spoke with Mr. Fitzgerald on Nov. 10, a
discussion in which she was not under oath, she hired a lawyer, Hank Schuelke.
"I didn't tell anyone at Time," she wrote. "Unrealistically, I hoped this would
turn out to be an insignificant twist in the investigation and also figured that
if people at Time knew about it, it would be difficult to contain the
information, and reporters would pounce on it - as I would have."

After her conversation with Mr. Fitzgerald, Ms. Novak continued to do reporting
on the leak case, including on the involvement of Bob Woodward, a reporter and
editor at The Washington Post. She told her editors about her conversations with
Mr. Fitzgerald on Nov. 20, after he had told her he wanted her to testify under
oath.

Ms. Novak's article was accompanied by an editor's note that said she had taken
a leave of absence. Jim Kelly, Time's managing editor, said in an interview on
Sunday: "I'm taking this seriously. I'm upset and she's upset." He said her
article "was full of regret about what happened."

Mr. Kelly suggested that there were several issues of concern to editors, among
them her failure to alert editors in a timely way about her conversation with
Mr. Luskin and her dealings with the prosecutor. Mr. Kelly said he would meet
with Ms. Novak early next year to decide if further steps were warranted.

Ms. Novak's testimony appeared to bring Mr. Fitzgerald close to an end point in
his deliberations about whether to charge Mr. Rove. Mr. Fitzgerald met for the
first time with a new grand jury last week, although it is not known what
evidence, if any, he presented to the panel.

Mr. Rove is the only person known to remain under scrutiny in the leak case. Mr.
Luskin has waged a vigorous behind-the-scenes effort to save Mr. Rove from
criminal charges. On Sunday, Mr. Luskin would not discuss the case or his
conversations with Ms. Novak.

Ms. Novak said she was questioned under oath last week about her conversations
with Mr. Luskin and said she felt free to cooperate with the prosecutor because
Mr. Luskin wanted her to testify. In her article, Ms. Novak said she was writing
about her conversation with Mr. Luskin, over his objection, because he had
"unilaterally" gone to the prosecutor to disclose it.

At the time of her 2004 conversation with Mr. Luskin, Ms. Novak wrote, he seemed
surprised when she suggested to him that Mr. Cooper had spoken with Mr. Rove.

In her article, she wrote: "I remember Luskin looking at me and saying something
to the effect of 'Karl doesn't have a Cooper problem. He was not a source for
Matt.'

"I responded instinctively," she recalled in the article, "thinking he was
trying to spin me, and said something like, 'Are you sure about that? That's not
what I hear around Time.'"

"He looked surprised and very serious," she wrote, recalling that Mr. Luskin
said, "There's nothing in the phone logs." It was only later disclosed that Mr.
Cooper's phone call on July 11, 2003, had been transferred to Mr. Rove via a
White House switchboard, which could explain why there was no record of his
call.

Ms. Novak wrote that the conversation with Mr. Luskin had occurred at one of
three meetings anywhere from January 2004 to May 2004, although she believed
that the conversation more likely took place in May.

After her exchange, Ms. Novak recalled, she felt uncomfortable thinking that she
might have inadvertently disclosed information that should have been withheld
from the lawyer.

"I was taken aback that he seemed so surprised," she wrote. "I had been pushing
back against what I thought was his attempt to lead me astray. I hadn't believed
that I was disclosing anything he didn't already know. Maybe this was a feint.
Maybe his client was lying to him. But at any rate, I immediately felt
uncomfortable. I hadn't intended to tip Luskin off to anything. I was supposed
to be the information gatherer."

The prosecutor has focused for months on the accuracy of Mr. Rove's statements
to the grand jury that he forgot about the conversation with Mr. Cooper until
the summer or fall of 2004, when he found an internal White House e-mail message
addressed to Stephen J. Hadley, then the deputy national security adviser, that
confirmed it.

Ms. Novak is not related to Robert D. Novak, the columnist who first disclosed
the name of the Central Intelligence Agency officer in a column on July 14,
2003. Mr. Cooper's article, which relied on Mr. Rove as a source, was published
several days later and also identified the officer, Valerie Wilson, by her
maiden name, Valerie Plame.

Mr. Fitzgerald has been investigating whether there was a deliberate effort to
disclose details about Ms. Wilson and her employment at the C.I.A. as part of an
attempt to distance the administration from Ms. Wilson's husband, Joseph C.
Wilson IV, a former ambassador who had complained about what he said was the
government's misuse of intelligence about Iraq.

So far, Mr. Fitzgerald has brought one indictment, against I. Lewis Libby Jr.,
Vice President Dick Cheney's former chief of staff. Mr. Libby was indicted Oct.
28 on five counts of obstruction of justice and perjury, and immediately
resigned. He has pleaded not guilty.

Even if Mr. Fitzgerald concludes his inquiry involving Mr. Rove, it may not end
the criminal investigation. Mr. Woodward of The Washington Post disclosed last
month that a government official told him about Ms. Wilson in mid-June 2003,
which would make Mr. Woodward the first reporter known to be told about her.

Mr. Woodward wrote that he testified under oath in a deposition to Mr.
Fitzgerald after his source, whom he refused to identify, went to the prosecutor
to disclose the conversation. It is not known what action, if any, Mr.
Fitzgerald intends to take in the matter.

*


TIME --

December 11, 2005
WHAT VIVECA NOVAK TOLD FITZGERALD
By Viveca Novak

It was in the midst of another Washington scandal, almost a decade ago, that I
got to know Bob Luskin. He represented Mark Middleton, a minor figure in the
Democratic campaign-finance scandals of 1996. Luskin kept Middleton out of the
spotlight and never told me much. Still, there is the occasional source with
whom one becomes friendly, and eventually Luskin was in that group.

We'd occasionally meet for a drink - he didn't like having lunch - Cafe Deluxe
on Wisconsin Avenue, near the National Cathedral and on my route home. In
October 2003, as we each made our way through a glass of wine, he asked me what
I was working on. I told him I was trying to get a handle on the Valerie Plame
leak investigation. "Well," he said, "you're sitting next to Karl Rove's
lawyer." I was genuinely surprised, since Luskin's liberal sympathies were no
secret, and here he was representing the man known to many Democrats as the
other side's Evil Genius.

I began spending a little more time than usual with Luskin as I tried to keep
track of the investigation. But how it all bought me a ticket to testify under
oath to special counsel Patrick Fitzgerald still floors me.

The week of Oct. 24, 2005, was Indictment Week - that Friday, the grand jury's
term would expire, and it was expected that Fitzgerald would finish up his probe
by then so he wouldn't have to start working with a new grand jury. It seemed
clear that Scooter Libby, chief of staff to Vice President Dick Cheney, was in
deep trouble, but Rove's status was uncertain. Sometime during that week,
Luskin, who was talking at length with Fitzgerald, phoned me and said he had
disclosed to Fitzgerald the content of a conversation he and I had had at Cafe
Deluxe more than a year earlier and that Fitzgerald might want to talk to me.

Luskin clearly thought that was going to help Rove, perhaps by explaining why
Rove hadn't told Fitzgerald or the grand jury of his conversation with my
colleague Matt Cooper about former Ambassador Joe Wilson's wife until well into
the inquiry. I knew what Matt had been through - the unwanted celebrity, the
speculation unrelated to fact, the dissection of his life and career. I didn't
face the prospect of prison, since Luskin clearly wanted me to tell Fitzgerald
about the incident and thus Luskin was not a source I had to protect, but no
journalist wants to be part of the story.

I clung to Luskin's word might, but the next week he told me Fitzgerald did
indeed want to talk to me, but informally, not under oath. I hired a lawyer,
Hank Schuelke, but I didn't tell anyone at TIME. Unrealistically, I hoped this
would turn out to be an insignificant twist in the investigation and also
figured that if people at TIME knew about it, it would be difficult to contain
the information, and reporters would pounce on it - as I would have.

Fitzgerald and I met in my lawyer's office on Nov. 10 for about two hours.
Schuelke had told him I would discuss only my interactions with Luskin that were
relevant to the conversation in question. No fishing expeditions, no questions
about my other reporting or sources in the case. He agreed, telling my lawyer
that he wanted to "remove the chicken bone without disturbing the body."

He asked how often Luskin and I met during the period from fall 2003 to fall
2004 (about five times), when, where and so forth. I had calendar entries that
helped but weren't entirely reliable. Did I take notes at those meetings? No.
Luskin was more likely to speak freely if he didn't see me committing his words
to paper. Did Luskin ever talk to me about whether Rove was a source for Matt on
the subject of Wilson's wife?

That was the "chicken bone" Fitzgerald had referred to, the conversation Luskin
had told him about that got me dragged into the probe. Here's what happened.
Toward the end of one of our meetings, I remember Luskin looking at me and
saying something to the effect of "Karl doesn't have a Cooper problem. He was
not a source for Matt." I responded instinctively, thinking he was trying to
spin me, and said something like, "Are you sure about that? That's not what I
hear around TIME." He looked surprised and very serious. "There's nothing in the
phone logs," he said. In the course of the investigation, the logs of all Rove's
calls around the July 2003 time period - when two stories, including Matt's,
were published mentioning that Plame was Wilson's wife - had been combed, and
Luskin was telling me there were no references to Matt. (Cooper called via the
White House switchboard, which may be why there is no record.)

I was taken aback that he seemed so surprised. I had been pushing back against
what I thought was his attempt to lead me astray. I hadn't believed that I was
disclosing anything he didn't already know. Maybe this was a feint. Maybe his
client was lying to him. But at any rate, I immediately felt uncomfortable. I
hadn't intended to tip Luskin off to anything. I was supposed to be the
information gatherer. It's true that reporters and sources often trade
information, but that's not what this was about. If I could have a do-over, I
would have kept my mouth shut; since I didn't, I wish I had told my bureau chief
about the exchange. Luskin walked me to my car and said something like, "Thank
you. This is important."

Fitzgerald wanted to know when this conversation occurred. At that point I had
found calendar entries showing that Luskin and I had met in January and in May.
Since I couldn't remember exactly how the conversation had developed, I wasn't
sure. I guessed it was more likely May.

As my meeting with Fitzgerald wrapped up, I asked what would happen next. He
said he would consider whether he needed to interview me again under oath, but
that if he did, he wouldn't require me to appear before the grand jury. I hoped
that would be the end of it. But on Friday, Nov. 18 - when I was on deadline,
writing, ironically, about Washington Post reporter Bob Woodward's newly
discovered role in the investigation - my lawyer called and told me Fitzgerald
did indeed want me under oath. I realized that I now needed to share this
information with Jay Carney, our Washington bureau chief. On Sunday, Nov. 20, I
drove over to his house to tell him. He then called Jim Kelly, the managing
editor. Nobody was happy about it, least of all me.

A new meeting with Fitzgerald was arranged for Dec. 8. Leaks about my role began
appearing in the papers, some of them closer to the mark than others. They all
made me feel physically ill. Fitzgerald had asked that I check a couple of dates
in my calendar for meetings with Luskin. One of them, March 1, 2004, checked
out. I hadn't found that one in my first search because I had erroneously
entered it as occurring at 5 a.m., not 5 p.m.

When Fitzgerald and I met last Thursday, along with another lawyer from his
team, my attorney, a lawyer from Time Inc. and the court reporter, he was more
focused. The problem with the new March date was that now I was even more
confused - previously I had to try to remember if the key conversation had
occurred in January or May, and I thought it was more likely May. But March was
close enough to May that I really didn't know. "I don't remember" is an answer
that prosecutors are used to hearing, but I was mortified about how little I
could recall of what occurred when.

This meeting lasted about an hour and a half. As before, Fitzgerald was
extremely pleasant, very professional, and he stuck to his pledge not to wander
with his questions. Does what I remembered - or more often, didn't remember - of
my interactions with Luskin matter? Will it make the difference between whether
Rove gets indicted or not? I have no idea. I didn't find out until this fall
that, according to Luskin, my remark led him to do an intensive search for
evidence that Rove and Matt had talked. That's how Luskin says he found the e-
mail Rove wrote to Stephen Hadley at the National Security Council right after
his conversation with Matt, saying that Matt had called about welfare reform but
then switched to the subject of Iraq's alleged attempt to buy uranium yellowcake
in Niger. According to Luskin, he turned the e-mail over to Fitzgerald when he
found it, leading Rove to acknowledge before the grand jury in October 2004 that
he had indeed spoken with Cooper.

One final note: Luskin is unhappy that I decided to write about our
conversation, but I feel that he violated any understanding to keep our talk
confidential by unilaterally going to Fitzgerald and telling him what was said.
And, of course, anyone who testifies under oath for a grand jury (my sworn
statement will be presented to the grand jury by Fitzgerald) is free to discuss
that testimony afterward.

*


The White House --

December 5, 2005
PRESS GAGGLE BY SCOTT MCCLELLAN [excerpt]

http://www.whitehouse.gov/news/releases/2005/12/20051205-2.html

[...]

Q: This morning, Rice talked at Andrews -- I don't know if you know what she
said.

McCLELLAN: Yes.

Q: Okay.

McCLELLAN: I'm aware of her statement. Well aware of her statement.

Q: She said that --

McCLELLAN: That was something that was part of an interagency process, in
responding --

Q: -- that the intelligence agency is getting some information from a small
number of dangerous detainees that have prevented terrorist attacks, both in
Europe and in the United States. Can you shed any more light on that? Can you
give us any more detail on that?

McCLELLAN: Well, I think we've talked about some in the past, but I think you
can understand why it's important, then -- she talked about this in her remarks
-- that we don't get into discussing intelligence matters of that nature. We're
engaged in an ongoing war on terrorism. We face a very dangerous and ruthless
enemy, as she talked about in her remarks, and we have a responsibility to do
everything that is lawful within our power to protect the American people. And
there are a lot of sensitive issues surrounding the war on terrorism, and
talking about intelligence matters could compromise ongoing operations, and we
don't want to do anything like that.

Q: Like more than one country in Europe?

McCLELLAN: Well, I think I just -- what do you mean by, "more than one country"?

Q: She was talking about terrorist attacks being prevented in Europe, so we're
talking about more than one country, is it several countries?

McCLELLAN: I'm not going to -- if the intelligence community wants to talk
further about it, I'll let them. But I think we've talked about some of the
plots that have been disrupted in the past. But in terms of talking about
specific intelligence that we get from people that have been captured on the
battlefield, I think it's best that we don't -- and she talked about that in her
statement -- because it could compromise things in the ongoing war on terrorism.
And I think the American people understand that.

Q: She also said that whatever the United States did, that the European counties
had cooperated. By saying that, doesn't that just inflame the rift?

McCLELLAN: I think what she said, was she talked about how we have and will
continue to respect the sovereignty of other nations. The issue here really to
focus on is, what are we doing to protect our citizens. That's the highest
responsibility of any government. And that's how we have to look at this. We are
engaged in a different kind of war against a different kind of enemy, and we
have to be able to adapt in order to face that enemy. And each country has to
make their own choices. And she emphasized that in her remarks. But we all
should do what we can to work together in order to prevail in this war on
terrorism and defeat the terrorists.

Q: Sharing the blame with Europe then, it sounds as if she's --

McCLELLAN: Sharing the blame? I'm not sure what you're referring to. We are
acting to protect the American people and working with other countries to
protect their citizens, as well. This is a global war on terrorism. We have seen
terrorists attack throughout the world, and this is an ongoing battle. This is a
very dangerous enemy. And we all -- all of us in government, around the world,
have a responsibility to do what we can to protect our citizens.

[...]

*


US Department of State --

December 5, 2005
REMARKS UPON HER DEPARTURE FOR EUROPE
Secretary Condoleezza Rice

http://www.state.gov/secretary/rm/2005/57602.htm

Andrews Air Force Base (7:15 a.m. EST)

Good morning. We have received inquiries from the European Union, the Council of
Europe, and from several individual countries about media reports concerning
U.S. conduct in the war on terror. I am going to respond now to those inquiries,
as I depart today for Europe. And this will also essentially form the text of
the letter that I will send to Secretary Straw, who wrote on behalf of the
European Union as the European Union President.

The United States and many other countries are waging a war against terrorism.
For our country this war often takes the form of conventional military
operations in places like Afghanistan and Iraq. Sometimes this is a political
struggle, a war of ideas. It is a struggle waged also by our law enforcement
agencies. Often we engage the enemy through the cooperation of our intelligence
services with their foreign counterparts.

We must track down terrorists who seek refuge in areas where governments cannot
take effective action, including where the terrorists cannot in practice be
reached by the ordinary processes of law. In such places terrorists have planned
the killings of thousands of innocents -- in New York City or Nairobi, in Bali
or London, in Madrid or Beslan, in Casablanca or Istanbul. Just two weeks ago I
also visited a hotel ballroom in Amman, viewing the silent, shattered aftermath
of one of those attacks.

The United States, and those countries that share the commitment to defend their
citizens, will use every lawful weapon to defeat these terrorists. Protecting
citizens is the first and oldest duty of any government. Sometimes these efforts
are misunderstood. I want to help all of you understand the hard choices
involved, and some of the responsibilities that go with them.

One of the difficult issues in this new kind of conflict is what to do with
captured individuals who we know or believe to be terrorists. The individuals
come from many countries and are often captured far from their original homes.
Among them are those who are effectively stateless, owing allegiance only to the
extremist cause of transnational terrorism. Many are extremely dangerous. And
some have information that may save lives, perhaps even thousands of lives.

The captured terrorists of the 21st century do not fit easily into traditional
systems of criminal or military justice, which were designed for different
needs. We have to adapt. Other governments are now also facing this challenge.

We consider the captured members of al-Qaida and its affiliates to be unlawful
combatants who may be held, in accordance with the law of war, to keep them from
killing innocents. We must treat them in accordance with our laws, which reflect
the values of the American people. We must question them to gather potentially
significant, life-saving, intelligence. We must bring terrorists to justice
wherever possible.

For decades, the United States and other countries have used "renditions" to
transport terrorist suspects from the country where they were captured to their
home country or to other countries where they can be questioned, held, or
brought to justice.

In some situations a terrorist suspect can be extradited according to
traditional judicial procedures. But there have long been many other cases
where, for some reason, the local government cannot detain or prosecute a
suspect, and traditional extradition is not a good option. In those cases the
local government can make the sovereign choice to cooperate in a rendition. Such
renditions are permissible under international law and are consistent with the
responsibilities of those governments to protect their citizens.

Rendition is a vital tool in combating transnational terrorism. Its use is not
unique to the United States, or to the current administration. Last year, then
Director of Central Intelligence George Tenet recalled that our earlier
counterterrorism successes included "the rendition of many dozens of terrorists
prior to September 11, 2001."

-- Ramzi Youssef masterminded the 1993 bombing of the World Trade Center and
plotted to blow up airlines over the Pacific Ocean, killing a Japanese airline
passenger in a test of one of his bombs. Once tracked down, a rendition brought
him to the United States, where he now serves a life sentence.

-- One of history’s most infamous terrorists, best known as "Carlos the Jackal,"
had participated in murders in Europe and the Middle East. He was finally
captured in Sudan in 1994. A rendition by the French government brought him to
justice in France, where he is now imprisoned. Indeed, the European Commission
of Human Rights rejected Carlos’ claim that his rendition from Sudan was
unlawful.

Renditions take terrorists out of action, and save lives.

In conducting such renditions, it is the policy of the United States, and I
presume of any other democracies who use this procedure, to comply with its laws
and comply with its treaty obligations, including those under the Convention
Against Torture. Torture is a term that is defined by law. We rely on our law to
govern our operations. The United States does not permit, tolerate, or condone
torture under any circumstances. Moreover, in accordance with the policy of this
administration:

-- The United States has respected -- and will continue to respect -- the
sovereignty of other countries.

-- The United States does not transport, and has not transported, detainees from
one country to another for the purpose of interrogation using torture.

-- The United States does not use the airspace or the airports of any country
for the purpose of transporting a detainee to a country where he or she will be
tortured.

-- The United States has not transported anyone, and will not transport anyone,
to a country when we believe he will be tortured. Where appropriate, the United
States seeks assurances that transferred persons will not be tortured.

International law allows a state to detain enemy combatants for the duration of
hostilities. Detainees may only be held for an extended period if the
intelligence or other evidence against them has been carefully evaluated and
supports a determination that detention is lawful. The U.S. does not seek to
hold anyone for a period beyond what is necessary to evaluate the intelligence
or other evidence against them, prevent further acts of terrorism, or hold them
for legal proceedings.

With respect to detainees, the United States Government complies with its
Constitution, its laws, and its treaty obligations. Acts of physical or mental
torture are expressly prohibited. The United States Government does not
authorize or condone torture of detainees. Torture, and conspiracy to commit
torture, are crimes under U.S. law, wherever they may occur in the world.

Violations of these and other detention standards have been investigated and
punished. There have been cases of unlawful treatment of detainees, such as the
abuse of a detainee by an intelligence agency contractor in Afghanistan or the
horrible mistreatment of some prisoners at Abu Ghraib that sickened us all and
which arose under the different legal framework that applies to armed conflict
in Iraq. In such casesthe United States has vigorously investigated, and where
appropriate, prosecuted and punished those responsible. Some individuals have
already been sentenced to lengthy terms in prison; others have been demoted or
reprimanded.

As CIA Director Goss recently stated, our intelligence agencies have handled the
gathering of intelligence from a very small number of extremely dangerous
detainees, including the individuals who planned the 9/11 attacks in the United
States, the attack on the U.S.S. Cole, and many other murders and attempted
murders. It is the policy of the United States that this questioning is to be
conducted within U.S. law and treaty obligations, without using torture. It is
also U.S. policy that authorized interrogation will be consistent with U.S.
obligations under the Convention Against Torture, which prohibit cruel, inhuman,
or degrading treatment. The intelligence so gathered has stopped terrorist
attacks and saved innocent lives -- in Europe as well as in the United States
and other countries. The United States has fully respected the sovereignty of
other countries that cooperate in these matters.

Because this war on terrorism challenges traditional norms and precedents of
previous conflicts, our citizens have been discussing and debating the proper
legal standards that should apply. President Bush is working with the U.S.
Congress to come up with good solutions. I want to emphasize a few key points.

-- The United States is a country of laws. My colleagues and I have sworn to
support and defend the Constitution of the United States. We believe in the rule
of law.

-- The United States Government must protect its citizens. We and our friends
around the world have the responsibility to work together in finding practical
ways to defend ourselves against ruthless enemies. And these terrorists are some
of the most ruthless enemies we face.

-- We cannot discuss information that would compromise the success of
intelligence, law enforcement, and military operations. We expect that other
nations share this view.

Some governments choose to cooperate with the United States in intelligence, law
enforcement, or military matters. That cooperation is a two-way street. We share
intelligence that has helped protect European countries from attack, helping
save European lives.

It is up to those governments and their citizens to decide if they wish to work
with us to prevent terrorist attacks against their own country or other
countries, and decide how much sensitive information they can make public. They
have a sovereign right to make that choice.

Debate in and among democracies is natural and healthy. I hope that that debate
also includes a healthy regard for the responsibilities of governments to
protect their citizens.

Four years after September 11, most of our populations are asking us if we are
doing all that we can to protect them. I know what it is like to face an inquiry
into whether everything was done that could have been done. So now, before the
next attack, we should all consider the hard choices that democratic governments
must face. And we can all best meet this danger if we work together.

Thank you.

2005/1130 (FINAL)

Released on December 5, 2005

* * *


Washington Post --

December 5, 2005

TRANSCRIPT: SECRETARY OF STATE RICE'S REMARKS
PRIOR TO DEPARTING FOR EUROPEAN TRIP

Courtesy FDCH/e-Media

http://www.washingtonpost.com/wp-
dyn/content/article/2005/12/05/AR2005120500462.html

(JOINED IN PROGRESS)

RICE: ... also visited a hotel ballroom in Amman, viewing the silent, shattered
aftermath of one of those attacks.

The United States and those countries that share the commitment to defend their
citizens will use every lawful weapon to defeat these terrorists. Protecting
citizens is the first and oldest duty of any government.

Sometimes these efforts are misunderstood. I want to help all of you understand
the hard choices involved and some of the responsibilities that go with them.

One of the difficult issues in this new kind of conflict is what to do with
captured individuals who we know or believe to be terrorists. The individuals
come from many countries and are often captured far from their original homes.
Among them are those who are effectively stateless, owing allegiance only to the
extremist cause of transnational terrorism. Many are extremely dangerous. And
some have information that may save lives, perhaps even thousands of lives.

The captured terrorists of the 21st century do not fit easily into traditional
systems of criminal or military justice, which were designed for different
needs. We have to adapt. Other governments are now also facing this challenge.

We consider the captured members of Al Qaida and its affiliates to be unlawful
combatants who may be held, in accordance with the law of war, to keep them from
killing innocents. We must treat them in accordance with our laws, which reflect
the values of the American people. We must question them to gather potentially
significant, life-saving, intelligence. We must bring terrorists to justice
wherever possible.

For decades, the United States and other countries have used "renditions" to
transport terrorist suspects from the country where they were captured to their
home country or to other countries where they can be questioned, held, or
brought to justice.

In some situations a terrorist suspect can be extradited according to
traditional judicial procedures. But there have long been many other cases
where, for some reason, the local government cannot detain or prosecute a
suspect, and traditional extradition is not a good option. In those cases the
local government can make the sovereign choice to cooperate in a rendition. Such
renditions are permissible under international law and are consistent with the
responsibilities of those governments to protect their citizens.

Rendition is a vital tool in combating transnational terrorism. Its use is not
unique to the United States, or to the current administration. Last year, then-
Director of Central Intelligence George Tenet recalled that our earlier
counterterrorism successes included "the rendition of many dozens of terrorists
prior to September 11, 2001."

Ramzi Youssef masterminded the 1993 bombing of the World Trade Center and
plotted to blow up airlines over the Pacific Ocean, killing a Japanese airline
passenger in a test of one of his bombs. Once tracked down, a rendition brought
him to the United States, where he now serves a life sentence.

One of history's most infamous terrorists, best known as "Carlos the Jackal,"
had participated in murders in Europe and the Middle East. He was finally
captured in Sudan in 1994. A rendition by the French government brought him to
justice in France, where he is now imprisoned. Indeed, the European Commission
of Human Rights rejected Carlos' claim that his rendition from Sudan was
unlawful.

Renditions take terrorists out of action, and save lives.

In conducting such renditions, it is the policy of the United States, and I
presume of any other democracies who use this procedure, to comply with its laws
and comply with its treaty obligations, including those under the Convention
Against Torture. Torture is a term that is defined by law. We rely on our law to
govern our operations. The United States does not permit, tolerate, or condone
torture under any circumstances. Moreover, in accordance with the policy of this
administration:

The United States has respected -- and will continue to respect -- the
sovereignty of other countries.

The United States does not transport, and has not transported, detainees from
one country to another for the purpose of interrogation using torture.

The United States does not use the airspace or the airports of any country for
the purpose of transporting a detainee to a country where he or she will be
tortured.

The United States has not transported anyone, and will not transport anyone, to
a country when we believe he will be tortured. Where appropriate, the United
States seeks assurances that transferred persons will not be tortured.

International law allows a state to detain enemy combatants for the duration of
hostilities. Detainees may only be held for an extended period if the
intelligence or other evidence against them has been carefully evaluated and
supports a determination that detention is lawful. The U.S. does not seek to
hold anyone for a period beyond what is necessary to evaluate the intelligence
or other evidence against them, prevent further acts of terrorism, or hold them
for legal proceedings.

With respect to detainees, the United States Government complies with its
Constitution, its laws, and its treaty obligations. Acts of physical or mental
torture are expressly prohibited. The United States Government does not
authorize or condone torture of detainees. Torture, and conspiracy to commit
torture, are crimes under U.S. law, wherever they may occur in the world.

Violations of these and other detention standards have been investigated and
punished. There have been cases of unlawful treatment of detainees, such as the
abuse of a detainee by an intelligence agency contractor in Afghanistan or the
horrible mistreatment of some prisoners at Abu Ghraib that sickened us all and
which arose under the different legal framework that applies to armed conflict
in Iraq. In such cases, the United States has vigorously investigated, and where
appropriate, prosecuted and punished those responsible. Some individuals have
already been sentenced to lengthy terms in prison; others have been demoted or
reprimanded.

As CIA Director Goss recently stated, our intelligence agencies have handled the
gathering of intelligence from a very small number of extremely dangerous
detainees, including the individuals who planned the 9/11 attacks in the United
States, the attack on the USS Cole, and many other murders and attempted
murders. It is the policy of the United States that this questioning is to be
conducted within U.S. law and treaty obligations, without using torture. It is
also U.S. policy that authorized interrogation will be consistent with U.S.
obligations under the Convention Against Torture, which prohibit cruel, inhuman,
or degrading treatment. The intelligence so gathered has stopped terrorist
attacks and saved innocent lives in Europe as well as in the United States and
other countries. The United States has fully respected the sovereignty of other
countries that cooperate in these matters.

Because this war on terrorism challenges traditional norms and precedents of
previous conflicts, our citizens have been discussing and debating the proper
legal standards that should apply. President Bush is working with the U.S.
Congress to come up with good solutions. I want to emphasize a few key points.

The United States is a country of laws. My colleagues and I have sworn to
support and defend the Constitution of the United States. We believe in the rule
of law.

The United States Government must protect its citizens. We and our friends
around the world have the responsibility to work together in finding practical
ways to defend ourselves against ruthless enemies. And these terrorists are some
of the most ruthless enemies we face.

We cannot discuss information that would compromise the success of intelligence,
law enforcement, and military operations. We expect that other nations share
this view.

Some governments choose to cooperate with the United States in intelligence, law
enforcement, or military matters. That cooperation is a two-way street. We share
intelligence that has helped protect European countries from attack, helping
save European lives.

It is up to those governments and their citizens to decide if they wish to work
with us to prevent terrorist attacks against their own country or other
countries, and decide how much sensitive information they can make public. They
have a sovereign right to make that choice.

Debate in and among democracies is natural and healthy. I hope that that debate
also includes a healthy regard for the responsibilities of governments to
protect their citizens.

Four years after September 11, most of our populations are asking us if we are
doing all that we can to protect them. I know what it is like to face an inquiry
into whether everything was done that could have been done. So now, before the
next attack, we should all consider the hard choices that democratic governments
must face. And we can all best meet this danger if we work together.

Thank you.

END

* * *


The White House --

December 2, 2005
PRESS BRIEFING BY SCOTT MCCLELLAN [excerpts]

http://www.whitehouse.gov/news/releases/2005/12/20051202-2.html

Q: Secretary Rice is going to Europe next week, and one of the places she's
going is Romania, where it's alleged that the CIA maintains a secret detention
center. Do you think that these -- that it undermines the U.S. campaign for
human rights and the advance of democracy, when the United States has these
secret prisons where it's alleged that people are treated harshly or even
severely?

McCLELLAN: Well, you're talking about allegations of so-called secret prisons,
and I'm not going to get into talk about national security matters. But what I
will talk about is the war on terrorism that we're engaged in. We're sitting
here talking about the war on terrorism. We remain a nation at war. And the
President's highest responsibility is the safety and security of the American
people. And he is going to continue to act in a way to better protect the
American people, but he's going to do so consistent with our laws and our values
and our international obligations. We made that very clear. And Secretary Rice
has indicated that she will be responding to the letter from Foreign Secretary
Straw in due course.

We are glad to talk about these issues. There are sometimes difficult issues you
have to address when it comes to a war like this, because we face a different
kind of enemy, an enemy that abides by no laws, that abides by no treaties, and
an enemy that wears no uniform, and an enemy that seeks to kill innocent men,
women and children throughout the civilized world. We're all engaged in the
global war on terrorism. We all have a responsibility to take the fight to the
terrorists and defeat them and prevent attacks from happening. All of us in
elected office have a responsibility to do everything we can to protect our
people.

But we also have a responsibility to respect the laws and the values and the
treaty obligations that we have agreed to.

Q: Is what you've just said -- do you anticipate that that will be her answer to
the criticism that she'll face in Europe over these alleged secret --

McCLELLAN: Well, she'll be responding in due course. There's been an interagency
input into her response, and that --

Q: What is that?

McCLELLAN: What's that?

Q: What is that interagency response?

McCLELLAN: Well, you'll hear more from her in due course.

[...]

Q: I wanted to also follow up on Terry's questions about the reports of secret
prisons, and the rationale for not saying to the American people whether or not
such places exist. Do you feel it somehow gives away something to the enemy to
confirm or deny the existence of these places?

McCLELLAN: I think the American people understand the importance of us using all
available tools to win the war on terrorism and to try to prevent attacks from
happening in the first place. But it's important for people to understand, also,
that we have laws and values and international obligations that we believe very
strongly in, and that we adhere to. And that's why we're talking about those
issues. There are some difficult issues that you have to address when you're
facing a different kind of enemy in a different kind of war. And those are
discussions that we'll continue to have.

We're having discussions with members of Congress on some of these issues. We're
working together. We all have some shared priorities, and we're talking about
issues to help us make sure that we're doing everything within our power to try
to disrupt and prevent attacks from happening in the first place, while also
acting in a way that is consistent with those laws and those values.

Q: But my question has to do with whether or not you confirm the existence,
regardless of what's happening there and what techniques are being used,
whatever, how does that protect American security by not acknowledging --

McCLELLAN: I'm not getting into confirming or denying anything. I think that
when you're talking about -- I mean, some of the reports talk about people like
Khalid Shaykh Muhammed and Bin al-Shibh. I mean, these are dangerous terrorists
that have been responsible for the deaths of thousands of Americans. And I think
the American people understand the importance of us getting valuable information
that can help us to defeat the terrorists and prevent attacks from happening.
This is about their safety and security.

But in terms of the issues related to this, yes, I think the American people
understand the importance -- and this is not talking about any particular issue
-- but they do understand the importance of the war on terrorism, of not talking
about intelligence, because it could hurt our efforts to prevail.

Q: Scott, when you say, "using all available tools," and then you talk about
laws, I think it is a little confusing for many of us Americans that all
available tools means all available tools, if you won't confirm or deny the
prisons overseas --

McCLELLAN: No, I said consistent with our laws and our treaty obligations. The
President has made it very clear that we do not torture, he would never condone
torture or authorize the use of torture. If someone doesn't abide by our laws,
they're held accountable, and we have done that.

That's the difference between us and others. When it comes to human rights,
there is no greater leader than the United States of America, and we show that
by holding people accountable when they break the law or they violate human
rights. And we show that by supporting the advance of freedom and democracy and
supporting those in countries that are having their human rights denied or
violated, like North Korea. We show that by liberating people in Afghanistan and
Iraq, some 50 million people. And no one has done more when it comes to human
rights than the United States of America.

Q: It's still not clear --

McCLELLAN: And I think -- and I disagree with you. I think the American people
understand. I disagree with your characterization that you think most Americans
don't.

Q: No, I'm not saying that. I think Americans certainly understand "all
available tools," and understand the possibility of prisons overseas. I suppose
my question really is, we still don't have a clear definition of what torture
is. If we're going to stop imminent attacks --

McCLELLAN: There are already laws on the books about torture that prevent --
that prohibit torture, and it spells out what those laws are and the treaty
obligations. And we're parties to those treaties.

Q: But, yet, it hasn't been possible to get from you a confirmation when we've
been very specific about what specific things might or might not be torture,
what they are.

McCLELLAN: I'm not going to talk about national security intelligence matters.
I'm just not going to get into talking about that.

* * *


Washington Post --

December 4, 2005

WRONGFUL IMPRISONMENT: ANATOMY OF A CIA MISTAKE
German Citizen Released After Months in 'Rendition'

By Dana Priest

http://www.washingtonpost.com/wp-
dyn/content/article/2005/12/03/AR2005120301476.html

In May 2004, the White House dispatched the U.S. ambassador in Germany to pay an
unusual visit to that country's interior minister. Ambassador Daniel R. Coats
carried instructions from the State Department transmitted via the CIA's Berlin
station because they were too sensitive and highly classified for regular
diplomatic channels, according to several people with knowledge of the
conversation.

Coats informed the German minister that the CIA had wrongfully imprisoned one of
its citizens, Khaled Masri, for five months, and would soon release him, the
sources said. There was also a request: that the German government not disclose
what it had been told even if Masri went public. The U.S. officials feared
exposure of a covert action program designed to capture terrorism suspects
abroad and transfer them among countries, and possible legal challenges to the
CIA from Masri and others with similar allegations.

The Masri case, with new details gleaned from interviews with current and former
intelligence and diplomatic officials, offers a rare study of how pressure on
the CIA to apprehend al Qaeda members after the Sept. 11, 2001, attacks has led
in some instances to detention based on thin or speculative evidence. The case
also shows how complicated it can be to correct errors in a system built and
operated in secret.

The CIA, working with other intelligence agencies, has captured an estimated
3,000 people, including several key leaders of al Qaeda, in its campaign to
dismantle terrorist networks. It is impossible to know, however, how many
mistakes the CIA and its foreign partners have made.

Unlike the military's prison for terrorist suspects at Guantanamo Bay, Cuba --
where 180 prisoners have been freed after a review of their cases -- there is no
tribunal or judge to check the evidence against those picked up by the CIA. The
same bureaucracy that decides to capture and transfer a suspect for
interrogation-- a process called "rendition" -- is also responsible for policing
itself for errors.

The CIA inspector general is investigating a growing number of what it calls
"erroneous renditions," according to several former and current intelligence
officials.

One official said about three dozen names fall in that category; others believe
it is fewer. The list includes several people whose identities were offered by
al Qaeda figures during CIA interrogations, officials said. One turned out to be
an innocent college professor who had given the al Qaeda member a bad grade, one
official said.

"They picked up the wrong people, who had no information. In many, many cases
there was only some vague association" with terrorism, one CIA officer said.

While the CIA admitted to Germany's then-Interior Minister Otto Schily that it
had made a mistake, it has labored to keep the specifics of Masri's case from
becoming public. As a German prosecutor works to verify or debunk Masri's claims
of kidnapping and torture, the part of the German government that was informed
of his ordeal has remained publicly silent. Masri's attorneys say they intend to
file a lawsuit in U.S. courts this week.

Masri was held for five months largely because the head of the CIA's
Counterterrorist Center's al Qaeda unit "believed he was someone else," one
former CIA official said. "She didn't really know. She just had a hunch."

The CIA declined to comment for this article, as did Coats and a spokesman at
the German Embassy in Washington. Schily did not respond to several requests for
comment last week.

CIA officials stress that apprehensions and renditions are among the most sure-
fire ways to take potential terrorists out of circulation quickly. In 2000,
then-CIA Director George J. Tenet said that "renditions have shattered terrorist
cells and networks, thwarted terrorist plans, and in some cases even prevented
attacks from occurring."

The Counterterrorist Center

After the September 2001 attacks, pressure to locate and nab potential
terrorists, even in the most obscure parts of the world, bore down hard on one
CIA office in particular, the Counterterrorist Center, or CTC, located until
recently in the basement of one of the older buildings on the agency's sprawling
headquarters compound. With operations officers and analysts sitting side by
side, the idea was to act on tips and leads with dramatic speed.

The possibility of missing another attack loomed large. "Their logic was: If one
of them gets loose and someone dies, we'll be held responsible," said one CIA
officer, who, like others interviewed for this article, would speak only
anonymously because of the secretive nature of the subject.

To carry out its mission, the CTC relies on its Rendition Group, made up of case
officers, paramilitaries, analysts and psychologists. Their job is to figure out
how to snatch someone off a city street, or a remote hillside, or a secluded
corner of an airport where local authorities wait.

Members of the Rendition Group follow a simple but standard procedure: Dressed
head to toe in black, including masks, they blindfold and cut the clothes off
their new captives, then administer an enema and sleeping drugs. They outfit
detainees in a diaper and jumpsuit for what can be a day-long trip. Their
destinations: either a detention facility operated by cooperative countries in
the Middle East and Central Asia, including Afghanistan, or one of the CIA's own
covert prisons -- referred to in classified documents as "black sites," which at
various times have been operated in eight countries, including several in
Eastern Europe.

In the months after the Sept. 11 attacks, the CTC was the place to be for CIA
officers wanting in on the fight. The staff ballooned from 300 to 1,200 nearly
overnight.

"It was the Camelot of counterterrorism," a former counterterrorism official
said. "We didn't have to mess with others -- and it was fun."

Thousands of tips and allegations about potential threats poured in after the
attacks. Stung by the failure to detect the plot, CIA officers passed along
every tidbit. The process of vetting and evaluating information suffered
greatly, former and current intelligence officials said. "Whatever quality
control mechanisms were in play on September 10th were eliminated on September
11th," a former senior intelligence official said.

J. Cofer Black, a professorial former spy who spent years chasing Osama bin
Laden, was the CTC's director. With a flair for melodrama, Black had earned
special access to the White House after he briefed President Bush on the CIA's
war plan for Afghanistan.

Colleagues recall that he would return from the White House inspired and talking
in missionary terms. Black, now in the private security business, declined to
comment.

Some colleagues said his fervor was in line with the responsibility Bush
bestowed on the CIA when he signed a top secret presidential finding six days
after the 9/11 attacks. It authorized an unprecedented range of covert action,
including lethal measures and renditions, disinformation campaigns and cyber
attacks against the al Qaeda enemy, according to current and former intelligence
officials. Black's attitude was exactly what some CIA officers believed was
needed to get the job done.

Others criticized Black's CTC for embracing a "Hollywood model" of operations,
as one former longtime CIA veteran called it, eschewing the hard work of
recruiting agents and penetrating terrorist networks. Instead, the new approach
was similar to the flashier paramilitary operations that had worked so well in
Afghanistan, and played well at the White House, where the president was keeping
a scorecard of captured or killed terrorists.

The person most often in the middle of arguments over whether to dispatch a
rendition team was a former Soviet analyst with spiked hair that matched her in-
your-face personality who heads the CTC's al Qaeda unit, according to a half-
dozen CIA veterans who know her. Her name is being withheld because she is under
cover.

She earned a reputation for being aggressive and confident, just the right
quality, some colleagues thought, for a commander in the CIA's global war on
terrorism. Others criticized her for being overzealous and too quick to order
paramilitary action.

The CIA and Guantanamo Bay

One way the CIA has dealt with detainees it no longer wants to hold is to
transfer them to the custody of the U.S. military at Guantanamo Bay, where
defense authorities decide whether to keep or release them after a review.

About a dozen men have been transferred by the CIA to Guantanamo Bay, according
to a Washington Post review of military tribunal testimony and other records.
Some CIA officials have argued that the facility has become, as one former
senior official put it, "a dumping ground" for CIA mistakes.

But several former intelligence officials dispute that and defend the transfer
of CIA detainees to military custody. They acknowledged that some of those sent
to Guantanamo Bay are prisoners who, after interrogation and review, turned out
to have less valuable information than originally suspected. Still, they said,
such prisoners are dangerous and would attack if given the chance.

Among those released from Guantanamo is Mamdouh Habib, an Egyptian-born
Australian citizen, apprehended by a CIA team in Pakistan in October 2001, then
sent to Egypt for interrogation, according to court papers. He has alleged that
he was burned by cigarettes, given electric shocks and beaten by Egyptian
captors. After six months, he was flown to Guantanamo Bay and let go earlier
this year without being charged.

Another CIA former captive, according to declassified testimony from military
tribunals and other records, is Mohamedou Oulad Slahi, a Mauritanian and former
Canada resident, who says he turned himself in to the Mauritanian police 18 days
after the 9/11 attacks because he heard the Americans were looking for him. The
CIA took him to Jordan, where he spent eight months undergoing interrogation,
according to his testimony, before being taken to Guantanamo Bay.

Another is Muhammad Saad Iqbal Madni, an Egyptian imprisoned by Indonesia
authorities in January 2002 after he was heard talking -- he says jokingly --
about a new shoe bomb technology. He was flown to Egypt for interrogation and
returned to CIA hands four months later, according to one former intelligence
official. After being held for 13 months in Afghanistan, he was taken to
Guantanamo Bay, according to his testimony.

The Masri Case

Khaled Masri came to the attention of Macedonian authorities on New Year's Eve
2003. Masri, an unemployed father of five living in Ulm, Germany, said he had
gone by bus to Macedonia to blow off steam after a spat with his wife. He was
taken off a bus at the Tabanovce border crossing by police because his name was
similar to that of an associate of a 9/11 hijacker. The police drove him to
Skopje, the capital, and put him in a motel room with darkened windows, he said
in a recent telephone interview from Germany.

The police treated Masri firmly but cordially, asking about his passport, which
they insisted was forged, about al Qaeda and about his hometown mosque, he said.
When he pressed them to let him go, they displayed their pistols.

Unbeknown to Masri, the Macedonians had contacted the CIA station in Skopje. The
station chief was on holiday. But the deputy chief, a junior officer, was
excited about the catch and about being able to contribute to the
counterterrorism fight, current and former intelligence officials familiar with
the case said.

"The Skopje station really wanted a scalp because everyone wanted a part of the
game," a CIA officer said. Because the European Division chief at headquarters
was also on vacation, the deputy dealt directly with the CTC and the head of its
al Qaeda unit.

In the first weeks of 2004, an argument arose over whether the CIA should take
Masri from local authorities and remove him from the country for interrogation,
a classic rendition operation.

The director of the al Qaeda unit supported that approach. She insisted he was
probably a terrorist, and should be imprisoned and interrogated immediately.

Others were doubtful. They wanted to wait to see whether the passport was proved
fraudulent. Beyond that, there was no evidence Masri was not who he claimed to
be -- a German citizen of Arab descent traveling after a disagreement with his
wife.

The unit's director won the argument. She ordered Masri captured and flown to a
CIA prison in Afghanistan.

On the 23rd day of his motel captivity, the police videotaped Masri, then
bundled him, handcuffed and blindfolded, into a van and drove to a closed-off
building at the airport, Masri said. There, in silence, someone cut off his
clothes. As they changed his blindfold, "I saw seven or eight men with black
clothing and wearing masks," he later said in an interview. He said he was
drugged to sleep for a long plane ride.

Afghanistan

Masri said his cell in Afghanistan was cold, dirty and in a cellar, with no
light and one dirty cover for warmth. The first night he said he was kicked and
beaten and warned by an interrogator: "You are here in a country where no one
knows about you, in a country where there is no law. If you die, we will bury
you, and no one will know."

Masri was guarded during the day by Afghans, he said. At night, men who sounded
as if they spoke American-accented English showed up for the interrogation.
Sometimes a man he believed was a doctor in a mask came to take photos, draw
blood and collect a urine sample.

Back at the CTC, Masri's passport was given to the Office of Technical Services
to analyze. By March, OTS had concluded the passport was genuine. The CIA had
imprisoned the wrong man.

At the CIA, the question was: Now what? Some officials wanted to go directly to
the German government; others did not. Someone suggested a reverse rendition:
Return Masri to Macedonia and release him. "There wouldn't be a trace. No
airplane tickets. Nothing. No one would believe him," one former official said.
"There would be a bump in the press, but then it would be over."

Once the mistake reached Tenet, he laid out the options to his counterparts,
including the idea of not telling the Germans. Condoleezza Rice, then Bush's
national security adviser, and Deputy Secretary of State Richard L. Armitage
argued they had to be told, a position Tenet took, according to one former
intelligence official.

"You couldn't have the president lying to the German chancellor" should the
issue come up, a government official involved in the matter said.

Senior State Department officials decided to approach Interior Minister Schily,
who had been a steadfast Bush supporter even when differences over the Iraq war
strained ties between the two countries. Ambassador Coats had excellent rapport
with Schily.

The CIA argued for minimal disclosure of information. The State Department
insisted on a truthful, complete statement. The two agencies quibbled over
whether it should include an apology, according to officials.

Meanwhile, Masri was growing desperate. There were rumors that a prisoner had
died under torture. Masri could not answer most questions put to him. He said he
steadied himself by talking with other prisoners and reading the Koran.

A week before his release in late May 2004, Masri said he was visited in prison
by a German man with a goatee who called himself Sam. Masri said he asked him if
he were from the German government and whether the government knew he was there.
Sam said he could not answer either question.

"Does my wife at least know I'm here?" Masri asked.

"No, she does not," Sam replied, according to Masri.

Sam told Masri he was going to be released soon but that he would not receive
any documents or papers confirming his ordeal. The Americans would never admit
they had taken him prisoner, Sam added, according to Masri.

On the day of his release, the prison's director, who Masri believed was an
American, told Masri that he had been held because he "had a suspicious name,"
Masri said in an interview.

Several intelligence and diplomatic officials said Macedonia did not want the
CIA to bring Masri back inside the country, so the agency arranged for him to be
flown to Albania. Masri said he was taken to a narrow country road at dusk. When
they let him off, "They asked me not to look back when I started walking," Masri
said. "I was afraid they would shoot me in the back."

He said he was quickly met by three armed men. They drove all night, arriving in
the morning at Mother Teresa Airport in Tirana. Masri said he was escorted onto
the plane, past all the security checkpoints, by an Albanian.

Masri has been reunited with his children and wife, who had moved the family to
Lebanon because she did not know where her husband was. Unemployed and lonely,
Masri says neither his German nor Arab friends dare associate with him because
of the publicity.

Meanwhile, a German prosecutor continues to work Masri's case. A Macedonia bus
driver has confirmed that Masri was taken away by border guards on the date he
gave investigators. A forensic analysis of Masri's hair showed he was
malnourished during the period he says he was in the prison. Flight logs show a
plane registered to a CIA front company flew out of Macedonia on the day Masri
says he went to Afghanistan.

Masri can find few words to explain his ordeal. "I have very bad feelings" about
the United States, he said. "I think it's just like in the Arab countries:
arresting people, treating them inhumanly and less than that, and with no rights
and no laws."

[ Staff researcher Julie Tate contributed to this article. ]

*

New York Times --

December 4, 2005

OFFICIALS DETAIL BRAZEN ESCAPE IN AFGHANISTAN

By Eric Schmitt and Tim Golden

http://www.nytimes.com/2005/12/04/international/asia/04escape.html

WASHINGTON, Dec. 3 - The prisoners were considered some of the most dangerous
men among the hundreds of terror suspects locked behind the walls of a secretive
and secure American military detention center in Bagram, Afghanistan.

Their escape, however, might as well have been a breakout from the county jail.

According to military officials familiar with the episode, the suspects are
believed to have picked the lock on their cell, changed out of their bright
orange uniforms and made their way through a heavily guarded military base under
the cover of night. They then crawled over a faulty wall where a getaway vehicle
was apparently waiting for them, the officials said.

Escape From Bagram Air Base

"It is embarrassing and amazing at the same time," one American defense official
said. "It was a disaster."

The fact of the escape was disclosed by the American authorities shortly after
it set off an intense manhunt at Bagram, 40 miles north of Kabul, on the morning
of July 10. But internal military documents and interviews with military and
intelligence officials indicate that it was a far more serious breach than the
Defense Department has acknowledged.

One of the four escaped suspects was identified as Al Qaeda's highest-ranking
operative in Southeast Asia when he was captured in 2002, a fact that emerged
only during an unrelated military trial last month. Another, a Saudi, was also
described by intelligence officials as an important Qaeda operative in
Afghanistan.

The detainees planned their breakout meticulously, United States officials said,
apparently studying the guards' routines, getting themselves moved into a cell
that was less visible to the guards and taking advantage of construction work
that was intended to expand and improve security at the prison.

"Based upon the findings of the investigation, it appears that the detainees had
a clear understanding of the operating procedures of the guards inside the
facility," said the chief spokesman for United States military forces in
Afghanistan, Col. James R. Yonts.

One American intelligence official said the prisoners also took advantage of "a
perfect storm" of mistakes by the military guards. The escape is believed to
have been the first from one of the detention centers established by the United
States for people suspected of being terrorists after 9/11.

Military officials, many of whom spoke on condition of anonymity because details
of the incident are classified, said there was still much they did not know
about how the men escaped.

Although an American military police guard was initially suspected of having
helped the prisoners, he was eventually cleared. Half a dozen other soldiers,
including officers and sergeants, have received administrative punishments, a
senior military official in Afghanistan said.

"It was bizarre to me," said Maj. Gen. Peter Gilchrist of Britain, who served at
the time as the deputy commander of coalition forces in Afghanistan in Kabul. "I
don't understand how it could happen."

Military officials have often cited the danger posed by the prisoners at Bagram
and Guantánamo Bay, Cuba, as a reason for the extreme security measures and
harsh conditions there. Prisoners are typically shackled by their hands and feet
when outside their cells and rarely move without an escort of at least two
guards. During interrogations, they have often been forced into uncomfortable
"safety positions" or chained to a bolt on the floor.

The two prisoners believed to have led the escape, Omar al-Faruq, a Kuwaiti who
was the former Qaeda operative in Southeast Asia, and Muhammad Jafar Jamal al-
Kahtani, the Saudi, had for months been awaiting transfer to Guantánamo Bay,
officials said. For reasons they have not explained, the military authorities
gave different names for both men in announcing the escape last summer.

At the time of Mr. Faruq's arrest in Jakarta, Indonesia, in early June 2002, he
was considered one of the most important Qaeda figures ever captured by the
United States. Three months later, he told C.I.A. interrogators at Bagram that
he had been sent to the region to plan large-scale attacks against American
Embassies and other targets there.

Intelligence officials gave differing views on the importance of Mr. Kahtani.
One official described him as having been responsible at one point for
maintaining Al Qaeda's operational support structure in Afghanistan; another
said he was an important Qaeda fighter, but not a senior-level operative.

According to a classified, one-page military report on the escape that was
reviewed by The New York Times, those two detainees - along with a Syrian
prisoner identified as Abdullah Hashimi and a Kuwaiti named Mahmoud Ahmad
Muhammad - were being held with four other men in Cell 119, on the ground floor
of the Bagram prison.

According to a senior military official, each of the prisoners who escaped was
moved into the cell in the days before their escape after causing problems with
other detainees. The main cells at Bagram are large wire cages that can be
easily surveyed by guards patrolling the catwalks above them. Cell 119, by
contrast, was somewhat apart and out of the way, officials said.

Asked whether the prisoners might have fabricated the disturbances in order to
be moved together into Cell 119, the senior official said, "The investigation
revealed credible factors that support this theory."

After a head count of prisoners at 1:50 a.m. on July 11, the military report
states, the sergeant of the guard on duty at the detention center, now called
the Bagram Theater Internment Facility, reported all of them accounted for, the
report states.

About two hours later, at 3:45 a.m., as the detainees were being roused for the
morning prayer, the four detainees were discovered missing from their cell. The
military police battalion on duty at the prison, Task Force Cerberus,
immediately locked down the prison and began a search, the report said.

How the men got out of their cell remains something of a mystery, officials
said. Two senior military officials said some equipment was temporarily moved
beside the cell, partly obstructing the guards' view. One senior military
official said investigators believe that the prisoners managed to pick the lock
with implements they had fashioned while detained.

There were also suspicions that one of the American military guards, who had had
disciplinary problems, might have deliberately left the door open, two senior
officials said. But those suspicions were eventually discounted and the guard
was never charged, they said.

The four men escaped out the southeast door of the main prison building, the
report said. Military and intelligence officials said the detainees left behind
their bright orange prison uniforms, apparently changing into less conspicuous
blue prison garb that they might have somehow hidden in their cells or knew
where to find elsewhere inside the prison.

At the time, several officials said, construction crews had been working to
expand and reinforce the prison, a cavernous aircraft machine-shop built by the
Soviet military during its occupation of Afghanistan and converted by the
American military into its primary screening center for terror suspects captured
overseas. The breakout took place only days before a series of tougher security
measures, including surveillance cameras and brighter lighting, were to put in
place.

The American forces have released more than 250 Taliban and other prisoners from
Bagram this year as part of an Afghan national reconciliation program. Still,
they have had to refurbish the prison to hold the roughly 500 detainees who
remain.

The escapees also appear to have taken advantage of the construction work to
move through an exercise yard and out of the prison compound. Another indication
that the four men might have received help in their escape, officials said, was
the apparent speed with which they found their way through a maze of buildings
and roads to a small, damaged section of the perimeter wall surrounding the vast
Bagram Air Base.

Once they found the faulty section of the packed-dirt wall, officials said, the
detainees were able to crawl beneath the concertina wire that topped the barrier
and drop down on the other side in an area of agricultural fields and abandoned
homes.

"There were three or four points where they could have been caught," one
American intelligence official said. "The escapees got very lucky." Within
minutes of the escape, American forces began fanning out across and outside the
prison, concentrating on the area near the faulty section of the wall. As the
base sirens blared an alert and Cobra and Black Hawk helicopters hovered
overhead, American soldiers and Afghan policemen scoured fields and homes in the
area.

The district police chief, Colonel Assadullah, said in an interview in Bagram
that he was asked to have his men search for a yellow pickup truck, which was
apparently seen leaving the area. The district governor, Kabir Ahmad, said the
Afghan authorities set up checkpoints on the highway leading to Kabul and other
roads in the area, but turned up nothing suspicious.

Military officials said American soldiers questioned laborers who had been
working at the prison, as well as local Afghan officials. But no arrests were
made, and neither Afghans working at the base nor American officials said they
knew of any laborers having been fired as a result of the inquiry.

In a recent interview, a former Bagram prisoner, Moazzam Begg, said he had heard
during his detention there that American intelligence officers had once proposed
staging an escape to release a detainee whom they wanted to act a double agent
against Al Qaeda. He said he had no knowledge that any such scheme had been
carried out, and several American officials strongly dismissed the idea that
that had happened with Mr. Faruq and the others.

In a videotape delivered to the Pakistan bureau of the Arab-language satellite
television station Al Arabiya, Mr. Kahtani boasted about the men's preparations
for the escape, suggesting that they had been painstaking.

"We decided to escape on Sunday because that is the day off for the
nonbelievers," he said on the tape, which was broadcast on Oct. 18. "To escape
we studied the plan very carefully."

[ Eric Schmitt reported from Washington for this article, and Tim Golden from
New York. Sultan M. Munadi and Abdul Waheed Wafa contributed reporting from
Bagram, Afghanistan. ]

*


Washington Post --

November 18, 2005

FOREIGN NETWORK AT FRONT OF CIA'S TERROR FIGHT

Joint Facilities in Two Dozen Countries Account
for Bulk of Agency's Post-9/11 Successes

By Dana Priest

http://www.washingtonpost.com/wp-
dyn/content/article/2005/11/17/AR2005111702070.html

The CIA has established joint operation centers in more than two dozen countries
where U.S. and foreign intelligence officers work side by side to track and
capture suspected terrorists and to destroy or penetrate their networks,
according to current and former American and foreign intelligence officials.

The secret Counterterrorist Intelligence Centers are financed mostly by the
agency and employ some of the best espionage technology the CIA has to offer,
including secure communications gear, computers linked to the CIA's central
databases, and access to highly classified intercepts once shared only with the
nation's closest Western allies. The Americans and their counterparts at the
centers, known as CTICs, make daily decisions on when and how to apprehend
suspects, whether to whisk them off to other countries for interrogation and
detention, and how to disrupt al Qaeda's logistical and financial support.

The network of centers reflects what has become the CIA's central and most
successful strategy in combating terrorism abroad: persuading and empowering
foreign security services to help. Virtually every capture or killing of a
suspected terrorist outside Iraq since the Sept. 11, 2001, attacks -- more than
3,000 in all -- was a result of foreign intelligence services' work alongside
the agency, the CIA deputy director of operations told a congressional committee
in a closed-door session earlier this year.

The initial tip about where an al Qaeda figure is hiding may come from the CIA,
but the actual operation to pick him up is usually organized by one of the joint
centers and conducted by a local security service, with the CIA nowhere in
sight. "The vast majority of successes involved our CTICs," one former
counterterrorism official said. "The boot that went through the door was
foreign."

The centers are also part of a fundamental, continuing shift in the CIA's
mission that began shortly after the 2001 attacks. No longer is the agency's
primary goal to recruit military attaches, diplomats and intelligence operatives
to steal secrets from their own countries. Today's CIA is desperately seeking
ways to join forces with other governments it once reproached or ignored to undo
a common enemy.

George J. Tenet orchestrated the shift during his tenure as CIA director,
working with the agency's station chiefs abroad and officers in the
Counterterrorist Center at headquarters to bring about an exponential deepening
of intelligence ties worldwide after Sept. 11.

Beneath the surface of visible diplomacy, the cooperative efforts, known as
liaison relationships, are recasting U.S. dealings abroad.

The White House has stepped up its criticism of Uzbek President Islam Karimov in
the past year for his authoritarian rule and repression of dissidents. But joint
counterterrorism efforts with Tashkent continued until recently. In Indonesia,
as the State Department doled out tiny amounts of assistance to the military
when it made progress on corruption and human rights, the CIA was pouring money
into Jakarta and developing intelligence ties there after years of tension. In
Paris, as U.S.-French acrimony peaked over the Iraq invasion in 2003, the CIA
and French intelligence services were creating the agency's only multinational
operations center and executing worldwide sting operations.

The CIA has operated the joint intelligence centers in Europe, the Middle East
and Asia, according to current and former intelligence officials. In addition,
the multinational center in Paris, codenamed Alliance Base, includes
representatives from Britain, France, Germany, Canada and Australia.

"CTICs were a step forward in codifying, organizing liaison relationships that
elsewhere would be more ad hoc," a former CIA counterterrorism official said.
"It's one tool in the liaison tool kit."

The CIA declined to comment for this article. The Washington Post interviewed
more than two dozen current and former intelligence officials and more than a
dozen senior foreign intelligence officials as well as diplomatic and
congressional sources. Most of them spoke on the condition that they not be
named because they are not authorized to speak publicly or because of the
sensitive nature of the subject.

The CTICs are entirely separate from the covert prisons, known in classified
documents as "black sites," that the CIA has run at various times in eight
countries. Legal experts and intelligence officials have said that the prisons
-- whose existence was disclosed in a Washington Post report earlier this month
-- would be considered illegal under the laws of several host countries. The
CTICs, by contrast, are an expansion of the hidden intelligence cooperation that
has been a staple of foreign policy for decades.

Deepening Ties

The intelligence centers were modeled on the CIA's counternarcotics centers in
Latin America and Asia. Faced with corrupt local police and intelligence
services, in the 1980s the CIA persuaded the leaders of these countries to let
it select individuals for the assignment, pay them and keep them physically
separate from their own institutions.

Officers from the host nations serving in the newer CTICs are vetted through
background checks and polygraphs. They are usually supervised by the CIA's chief
of station and augmented by officers sent from the Counterterrorist Center at
Langley. Such daily interaction with U.S. personnel, say intelligence officials,
helps keep the foreign service focused.

The first two CTICs were established in the late 1990s to watch and capture
Islamic militants traveling from Saudi Arabia, Yemen, Egypt and Chechnya to join
the fighting in Bosnia and other parts of the former Yugoslavia, two former
intelligence officers said.

Days after the Sept. 11 attacks, Tenet outlined a global campaign against
terrorism to President Bush. It included invading Afghanistan to wipe out al
Qaeda's main base of operations as well as a "Worldwide Attack Matrix" detailing
operations against terrorists in 80 countries. The matrix also listed priority
countries where al Qaeda leaders in Afghanistan were likely to flee during a
U.S. invasion.

"If you brought a big hammer down on Afghanistan," as a former CIA official
described it, "there weren't too many areas where people could squirt out" and
hide. The most likely were Yemen, Saudi Arabia, urban areas of Pakistan, and
Indonesia.

On Sept. 17, 2001, Bush signed a classified Presidential Finding that authorized
an unprecedented range of covert operations. The overall counterterrorism
program included authorization of lethal measures against terrorists and the
expenditure of vast funds to coax foreign intelligence services into a new era
of cooperation with the CIA, current and former intelligence officials said.

To beef up operations in the priority countries and elsewhere, the agency
dispatched officers from its proliferation, counternarcotics, Europe, Africa,
Asia and Middle East divisions, said several current and former intelligence
officials. It sent paramilitary teams from its tiny Special Activities Division
and enlisted the military's Special Operations Forces to augment the teams.

But agency officials knew that a surge of hundreds of CIA officers would not be
adequate to solidify the new worldwide infrastructure that Tenet and his top
aides envisioned. The agency quickly turned to dozens of sometimes reluctant
foreign intelligence services, which had much more intimate knowledge of local
terrorist groups and their supporters. The agency had extensive inducements to
offer foreign services once Congress opened the spigot, which it quickly did.
"The money was just flowing," said one CIA case officer. In fact, the budget for
the CIA's operations increased in the first two years by 2 1/2 times what it had
been before Sept. 11, according to two government experts.

The Counterterrorist Center at CIA headquarters, which manages the CTICs and all
other counterterrorism efforts, bought its friends SUVs, night-vision equipment,
automatic weapons and push-to-talk radios for countries where intelligence
services were starved for even basic material. It sent instructors in
surveillance, data analysis and military Special Forces tactics to teach hostage
rescue, VIP protection and counterterrorist assault. Foreign countries sent
officers to the CIA's training school for weeks-long courses in counterterrorism
operations and analysis.

The new cooperative ventures depended as well on loosening U.S. rules for
sharing electronic eavesdropping and other precious "signals intelligence,"
which experts estimate provides 80 to 90 percent of the information the United
States gathers about terrorist networks. Tenet ordered streamlined regulations.

The National Security Agency, which manages, analyzes and distributes electronic
intercepts, quickly became a new partner in the joint centers, and established a
Foreign Affairs Directorate that now handles sharing information and equipment
with 40 countries.

Tenet Courts Yemen

Persuading foreign presidents and intelligence chiefs to begin or deepen
relationships with the CIA often took the personal intervention of Bush, Vice
President Cheney and the secretary of state. But closing a deal was left to the
CIA's chiefs of station, other top officials, and foremost, Tenet, "the master
of liaison," as one longtime intelligence officer dubbed him.

Gregarious and comfortable in foreign settings, Tenet by Sept. 11 had earned a
reputation among Muslim countries as an honest broker in the Arab-Israeli
dispute and for his role in training Palestinian security forces. He was a
natural at bonding with foreign chiefs of service, current and former
intelligence officials said. Once, during a dinner for a foreign service chief,
the guests asked Tenet about Bush, whom Tenet briefed every morning. "He would
tell them what time he gets up. He'd say, 'The president calls me Jorge.' It was
really human-being-to-human-being," said a former intelligence official. "He
didn't give away anything classified, but they felt important and could go back
to their president and say, 'The president calls him Jorge.' "

"George Tenet is a charming man, but also a very tough cookie," said a senior
French official.

Yemen, with its terrorist training camps and al Qaeda presence, was one of
Tenet's most significant successes. Its president, Ali Abdullah Saleh, had
little control over the northern border with Saudi Arabia, which had turned into
a haven for extremists, and even less over his violent rivals.

Faris Sanabani, a Yemeni presidential adviser, said Tenet's trips to Yemen after
Sept. 11 helped persuade Saleh to work with the CIA in a way that would have
been unthinkable before. "He made an effort to reach out when people were really
scared of Yemen," said Sanabani, who sat in on meetings between Tenet and Saleh.
"He's the kind of person who doesn't work from a report or from behind the
office desk."

In the wake of the U.S. invasion of Afghanistan, Saleh thought Yemen was next on
the target list, said one current and one former intelligence official. Tenet
did not disabuse him of this idea, they said. "You don't take anything off the
table," one said.

At the same time, Tenet "listened to him, took his views seriously and did not
rebuke him. He sought to meet Saleh's needs," he said.

Tenet provided millions of dollars for Yemen's cooperation. He gave helicopters,
eavesdropping equipment, weapons and bulletproof vests. He brought in 100 Army
Special Forces trainers to help Yemen create an antiterrorism unit. Tenet also
won Saleh's approval to fly Predator drones armed with Hellfire missiles over
the country to hunt and kill al Qaeda figures. In November 2002, the CIA killed
six al Qaeda operatives driving in the desert, including Abu Ali al-Harithi,
suspected mastermind of the 2000 attack on the USS Cole.

"All of the sudden our enemy became common," Sanabani said. "That's why Yemen
and the United States reached out to one other."

Indonesia

Countering terrorism has overshadowed just about all other foreign policy
concerns, including "making friends with the sorts of characters you would not
have been in the same room with before," one former foreign intelligence
official said.

In Indonesia, the most populous Muslim country and the center of gravity for an
al Qaeda affiliate, Jemaah Islamiyah, that meant befriending Lt. Gen. Abdullah
Hendropriyono, then head of the intelligence service.

Sporting black hair lacquered with hairspray and colorful jackets with matching
ties and socks, Hendropriyono was more flamboyant than most chiefs. A former
Indonesian special forces commander trained at the U.S. Army Command and General
Staff School at Fort Leavenworth, Kan., Hendropriyono was accused by human
rights activists of ordering attacks that killed more than 100 unarmed villagers
in 1989, according to Associated Press and other published reports. In 2004, he
threatened action against foreign humanitarian groups monitoring human rights
issues, published reports said. Hendropriyono replaced an intelligence chief who
had conducted surveillance against U.S. and Australian officials, according to
U.S. and Australian sources. Al Qaeda leader Omar Farouq had the U.S. Embassy
under surveillance and U.S. Ambassador Robert S. Gelbard believed that the
Indonesians had purposely blown an operation meant to capture a bombing team
targeting the U.S. compound in Jakarta.

In August 2001, Hendropriyono was "a breath of fresh air," said one CIA officer
who worked with him. "He was focused, very controversial, but very dynamic."
Unlike his predecessor, he was willing to work with the Americans, at a price.
Besides phone calls and office visits, Tenet worked hard on Hendropriyono's
requests for goods and services. "These guys had 1970s technology," the CIA
officer said. "They were dying for equipment, surveillance, wiretaps."

Tenet came through on two of Hendropriyono's personal requests as well: to
provide seed money for a regional intelligence school, the International
Institute of Intelligence on Batam Island, and to get a relative of
Hendropriyono's into a top-rated American university. When his grades proved an
obstacle, the CIA director arranged for him to attend the National War College
at Fort McNair, four sources said.

Hendropriyono proved his willingness to cooperate by arresting Muhammad Saad
Iqbal Madni, a Egyptian who the CIA believed was linked to British failed shoe
bomber Richard C. Reid. He also agreed to allow the CIA to take Madni to Egypt
for interrogation under a process known as "rendition."

Hendropriyono agreed to expand the cooperation, and officers arrested a few
dozen Indonesians suspected of links to terrorism. He began efforts to close
down terrorist financing.

Then he secured the approval of his political leadership to apprehend Farouq,
believed to be a top al Qaeda figure in Southeast Asia. "He forced [the
Indonesian security services ] to work with us and we started picking up the
bigger fish," Gelbard said. Attempts to reach Hendropriyono were unsuccessful.

The Goss Era

Porter J. Goss, who succeeded Tenet as CIA director just over a year ago, could
hardly be more different. For all of Tenet's gregariousness, Goss is the picture
of reserve. And there are indications that Goss may not place as much emphasis
on combining forces with others overseas.

When Goss took over, he said he valued these partnerships but announced a goal
of improving what he called "unilateral" intelligence collection and operations.
"We have gotten more unilateral, though still not as much as I'd like," he told
employees in a staff meeting. "It's getting the right kind of people trained in
the right places under the right cover against the right targets."

There are plans to send more case officers into the field and to increase deep-
cover positions that would require officers to spend longer periods, and perhaps
their careers, in one country, integrated into the culture and, in some cases,
cut off from the traditional embassy-based CIA station.

Stories about Goss's reluctance to meet with his foreign counterparts are rife,
fueled in part by a cable from headquarters to overseas station chiefs, saying
appointments with foreign services should be arranged for Tuesdays or Thursdays.
The memo, CIA officials have said, was not meant to discourage such meetings but
to assure officers that Goss would set aside time for such important visitors.

During a recent trip to the U.S. Special Operations Command base in Qatar, Goss
did not meet with the head of the country or Qatar's intelligence chief.
Intelligence officials say that is because Goss had met with them recently.
Others say Tenet would never had flown so far and missed a chance to schmooze.

In any case, current and former intelligence officials predicted that the new,
deeper relationships with foreign intelligence agencies will endure because the
countries involved have a strong, common interest in confronting terrorism. And
they said CIA station chiefs will continue to cultivate and encourage the ties,
given the success they've yielded thus far.

"Most of these relationships are built on the ground," said a former
intelligence official who spent most of his career overseas.

[ Researcher Julie Tate contributed to this report. ]

*


Washington Post --

November 2, 2005; Page A01
CIA HOLDS TERROR SUSPECTS IN SECRET PRISONS

Debate Is Growing Within Agency About Legality and
Morality of Overseas System Set Up After 9/11

By Dana Priest

http://www.washingtonpost.com/wp-
dyn/content/article/2005/11/01/AR2005110101644.html

The CIA has been hiding and interrogating some of its most important al Qaeda
captives at a Soviet-era compound in Eastern Europe, according to U.S. and
foreign officials familiar with the arrangement.

The secret facility is part of a covert prison system set up by the CIA nearly
four years ago that at various times has included sites in eight countries,
including Thailand, Afghanistan and several democracies in Eastern Europe, as
well as a small center at the Guantanamo Bay prison in Cuba, according to
current and former intelligence officials and diplomats from three continents.

The hidden global internment network is a central element in the CIA's
unconventional war on terrorism. It depends on the cooperation of foreign
intelligence services, and on keeping even basic information about the system
secret from the public, foreign officials and nearly all members of Congress
charged with overseeing the CIA's covert actions.

The existence and locations of the facilities -- referred to as "black sites" in
classified White House, CIA, Justice Department and congressional documents --
are known to only a handful of officials in the United States and, usually, only
to the president and a few top intelligence officers in each host country.

The CIA and the White House, citing national security concerns and the value of
the program, have dissuaded Congress from demanding that the agency answer
questions in open testimony about the conditions under which captives are held.
Virtually nothing is known about who is kept in the facilities, what
interrogation methods are employed with them, or how decisions are made about
whether they should be detained or for how long.

While the Defense Department has produced volumes of public reports and
testimony about its detention practices and rules after the abuse scandals at
Iraq's Abu Ghraib prison and at Guantanamo Bay, the CIA has not even
acknowledged the existence of its black sites. To do so, say officials familiar
with the program, could open the U.S. government to legal challenges,
particularly in foreign courts, and increase the risk of political condemnation
at home and abroad.

But the revelations of widespread prisoner abuse in Afghanistan and Iraq by the
U.S. military -- which operates under published rules and transparent oversight
of Congress -- have increased concern among lawmakers, foreign governments and
human rights groups about the opaque CIA system. Those concerns escalated last
month, when Vice President Cheney and CIA Director Porter J. Goss asked Congress
to exempt CIA employees from legislation already endorsed by 90 senators that
would bar cruel and degrading treatment of any prisoner in U.S. custody.

Although the CIA will not acknowledge details of its system, intelligence
officials defend the agency's approach, arguing that the successful defense of
the country requires that the agency be empowered to hold and interrogate
suspected terrorists for as long as necessary and without restrictions imposed
by the U.S. legal system or even by the military tribunals established for
prisoners held at Guantanamo Bay.

The Washington Post is not publishing the names of the Eastern European
countries involved in the covert program, at the request of senior U.S.
officials. They argued that the disclosure might disrupt counterterrorism
efforts in those countries and elsewhere and could make them targets of possible
terrorist retaliation.

The secret detention system was conceived in the chaotic and anxious first
months after the Sept. 11, 2001, attacks, when the working assumption was that a
second strike was imminent.

Since then, the arrangement has been increasingly debated within the CIA, where
considerable concern lingers about the legality, morality and practicality of
holding even unrepentant terrorists in such isolation and secrecy, perhaps for
the duration of their lives. Mid-level and senior CIA officers began arguing two
years ago that the system was unsustainable and diverted the agency from its
unique espionage mission.

"We never sat down, as far as I know, and came up with a grand strategy," said
one former senior intelligence officer who is familiar with the program but not
the location of the prisons. "Everything was very reactive. That's how you get
to a situation where you pick people up, send them into a netherworld and don't
say, 'What are we going to do with them afterwards?' "

It is illegal for the government to hold prisoners in such isolation in secret
prisons in the United States, which is why the CIA placed them overseas,
according to several former and current intelligence officials and other U.S.
government officials. Legal experts and intelligence officials said that the
CIA's internment practices also would be considered illegal under the laws of
several host countries, where detainees have rights to have a lawyer or to mount
a defense against allegations of wrongdoing.

Host countries have signed the U.N. Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA
interrogators in the overseas sites are permitted to use the CIA's approved
"Enhanced Interrogation Techniques," some of which are prohibited by the U.N.
convention and by U.S. military law. They include tactics such as
"waterboarding," in which a prisoner is made to believe he or she is drowning.

Some detainees apprehended by the CIA and transferred to foreign intelligence
agencies have alleged after their release that they were tortured, although it
is unclear whether CIA personnel played a role in the alleged abuse. Given the
secrecy surrounding CIA detentions, such accusations have heightened concerns
among foreign governments and human rights groups about CIA detention and
interrogation practices.

The contours of the CIA's detention program have emerged in bits and pieces over
the past two years. Parliaments in Canada, Italy, France, Sweden and the
Netherlands have opened inquiries into alleged CIA operations that secretly
captured their citizens or legal residents and transferred them to the agency's
prisons.

More than 100 suspected terrorists have been sent by the CIA into the covert
system, according to current and former U.S. intelligence officials and foreign
sources. This figure, a rough estimate based on information from sources who
said their knowledge of the numbers was incomplete, does not include prisoners
picked up in Iraq.

The detainees break down roughly into two classes, the sources said.

About 30 are considered major terrorism suspects and have been held under the
highest level of secrecy at black sites financed by the CIA and managed by
agency personnel, including those in Eastern Europe and elsewhere, according to
current and former intelligence officers and two other U.S. government
officials. Two locations in this category -- in Thailand and on the grounds of
the military prison at Guantanamo Bay -- were closed in 2003 and 2004,
respectively.

A second tier -- which these sources believe includes more than 70 detainees --
is a group considered less important, with less direct involvement in terrorism
and having limited intelligence value. These prisoners, some of whom were
originally taken to black sites, are delivered to intelligence services in
Egypt, Jordan, Morocco, Afghanistan and other countries, a process sometimes
known as "rendition." While the first-tier black sites are run by CIA officers,
the jails in these countries are operated by the host nations, with CIA
financial assistance and, sometimes, direction.

Morocco, Egypt and Jordan have said that they do not torture detainees, although
years of State Department human rights reports accuse all three of chronic
prisoner abuse.

The top 30 al Qaeda prisoners exist in complete isolation from the outside
world. Kept in dark, sometimes underground cells, they have no recognized legal
rights, and no one outside the CIA is allowed to talk with or even see them, or
to otherwise verify their well-being, said current and former and U.S. and
foreign government and intelligence officials.

Most of the facilities were built and are maintained with congressionally
appropriated funds, but the White House has refused to allow the CIA to brief
anyone except the House and Senate intelligence committees' chairmen and vice
chairmen on the program's generalities.

The Eastern European countries that the CIA has persuaded to hide al Qaeda
captives are democracies that have embraced the rule of law and individual
rights after decades of Soviet domination. Each has been trying to cleanse its
intelligence services of operatives who have worked on behalf of others --
mainly Russia and organized crime.

ORIGINS OF THE BLACK SITES

The idea of holding terrorists outside the U.S. legal system was not under
consideration before Sept. 11, 2001, not even for Osama bin Laden, according to
former government officials. The plan was to bring bin Laden and his top
associates into the U.S. justice system for trial or to send them to foreign
countries where they would be tried.

"The issue of detaining and interrogating people was never, ever discussed,"
said a former senior intelligence officer who worked in the CIA's
Counterterrorist Center, or CTC, during that period. "It was against the culture
and they believed information was best gleaned by other means."

On the day of the attacks, the CIA already had a list of what it called High-
Value Targets from the al Qaeda structure, and as the World Trade Center and
Pentagon attack plots were unraveled, more names were added to the list. The
question of what to do with these people surfaced quickly.

The CTC's chief of operations argued for creating hit teams of case officers and
CIA paramilitaries that would covertly infiltrate countries in the Middle East,
Africa and even Europe to assassinate people on the list, one by one.

But many CIA officers believed that the al Qaeda leaders would be worth keeping
alive to interrogate about their network and other plots. Some officers worried
that the CIA would not be very adept at assassination.

"We'd probably shoot ourselves," another former senior CIA official said.

The agency set up prisons under its covert action authority. Under U.S. law,
only the president can authorize a covert action, by signing a document called a
presidential finding. Findings must not break U.S. law and are reviewed and
approved by CIA, Justice Department and White House legal advisers.

Six days after the Sept. 11 attacks, President Bush signed a sweeping finding
that gave the CIA broad authorization to disrupt terrorist activity, including
permission to kill, capture and detain members of al Qaeda anywhere in the
world.

It could not be determined whether Bush approved a separate finding for the
black-sites program, but the consensus among current and former intelligence and
other government officials interviewed for this article is that he did not have
to.

Rather, they believe that the CIA general counsel's office acted within the
parameters of the Sept. 17 finding. The black-site program was approved by a
small circle of White House and Justice Department lawyers and officials,
according to several former and current U.S. government and intelligence
officials.

DEALS WITH 2 COUNTRIES

Among the first steps was to figure out where the CIA could secretly hold the
captives. One early idea was to keep them on ships in international waters, but
that was discarded for security and logistics reasons.

CIA officers also searched for a setting like Alcatraz Island. They considered
the virtually unvisited islands in Lake Kariba in Zambia, which were edged with
craggy cliffs and covered in woods. But poor sanitary conditions could easily
lead to fatal diseases, they decided, and besides, they wondered, could the
Zambians be trusted with such a secret?

Still without a long-term solution, the CIA began sending suspects it captured
in the first month or so after Sept. 11 to its longtime partners, the
intelligence services of Egypt and Jordan.

A month later, the CIA found itself with hundreds of prisoners who were captured
on battlefields in Afghanistan. A short-term solution was improvised. The agency
shoved its highest-value prisoners into metal shipping containers set up on a
corner of the Bagram Air Base, which was surrounded with a triple perimeter of
concertina-wire fencing. Most prisoners were left in the hands of the Northern
Alliance, U.S.-supported opposition forces who were fighting the Taliban.

"I remember asking: What are we going to do with these people?" said a senior
CIA officer. "I kept saying, where's the help? We've got to bring in some help.
We can't be jailers -- our job is to find Osama."

Then came grisly reports, in the winter of 2001, that prisoners kept by allied
Afghan generals in cargo containers had died of asphyxiation. The CIA asked
Congress for, and was quickly granted, tens of millions of dollars to establish
a larger, long-term system in Afghanistan, parts of which would be used for CIA
prisoners.

The largest CIA prison in Afghanistan was code-named the Salt Pit. It was also
the CIA's substation and was first housed in an old brick factory outside Kabul.
In November 2002, an inexperienced CIA case officer allegedly ordered guards to
strip naked an uncooperative young detainee, chain him to the concrete floor and
leave him there overnight without blankets. He froze to death, according to four
U.S. government officials. The CIA officer has not been charged in the death.

The Salt Pit was protected by surveillance cameras and tough Afghan guards, but
the road leading to it was not safe to travel and the jail was eventually moved
inside Bagram Air Base. It has since been relocated off the base.

By mid-2002, the CIA had worked out secret black-site deals with two countries,
including Thailand and one Eastern European nation, current and former officials
said. An estimated $100 million was tucked inside the classified annex of the
first supplemental Afghanistan appropriation.

Then the CIA captured its first big detainee, in March 28, 2002. Pakistani
forces took Abu Zubaida, al Qaeda's operations chief, into custody and the CIA
whisked him to the new black site in Thailand, which included underground
interrogation cells, said several former and current intelligence officials. Six
months later, Sept. 11 planner Ramzi Binalshibh was also captured in Pakistan
and flown to Thailand.

But after published reports revealed the existence of the site in June 2003,
Thai officials insisted the CIA shut it down, and the two terrorists were moved
elsewhere, according to former government officials involved in the matter. Work
between the two countries on counterterrorism has been lukewarm ever since.

In late 2002 or early 2003, the CIA brokered deals with other countries to
establish black-site prisons. One of these sites -- which sources said they
believed to be the CIA's biggest facility now -- became particularly important
when the agency realized it would have a growing number of prisoners and a
shrinking number of prisons.

Thailand was closed, and sometime in 2004 the CIA decided it had to give up its
small site at Guantanamo Bay. The CIA had planned to convert that into a state-
of-the-art facility, operated independently of the military. The CIA pulled out
when U.S. courts began to exercise greater control over the military detainees,
and agency officials feared judges would soon extend the same type of
supervision over their detainees.

In hindsight, say some former and current intelligence officials, the CIA's
problems were exacerbated by another decision made within the Counterterrorist
Center at Langley.

The CIA program's original scope was to hide and interrogate the two dozen or so
al Qaeda leaders believed to be directly responsible for the Sept. 11 attacks,
or who posed an imminent threat, or had knowledge of the larger al Qaeda
network. But as the volume of leads pouring into the CTC from abroad increased,
and the capacity of its paramilitary group to seize suspects grew, the CIA began
apprehending more people whose intelligence value and links to terrorism were
less certain, according to four current and former officials.

The original standard for consigning suspects to the invisible universe was
lowered or ignored, they said. "They've got many, many more who don't reach any
threshold," one intelligence official said.

Several former and current intelligence officials, as well as several other U.S.
government officials with knowledge of the program, express frustration that the
White House and the leaders of the intelligence community have not made it a
priority to decide whether the secret internment program should continue in its
current form, or be replaced by some other approach.

Meanwhile, the debate over the wisdom of the program continues among CIA
officers, some of whom also argue that the secrecy surrounding the program is
not sustainable.

"It's just a horrible burden," said the intelligence official.

[ Researcher Julie Tate contributed to this report. ]

© 2005 The Washington Post Company

*


November 2, 2005
DETAINEE POLICY SHARPLY DIVIDES BUSH OFFICIALS

By Tim Golden and Eric Schmitt

http://www.nytimes.com/2005/11/02/politics/02detain.html

WASHINGTON, Nov. 1 - The Bush administration is embroiled in a sharp internal
debate over whether a new set of Defense Department standards for handling
terror suspects should adopt language from the Geneva Conventions prohibiting
"cruel," "humiliating" and "degrading" treatment, administration officials say.

Advocates of that approach, who include some Defense and State Department
officials and senior military lawyers, contend that moving the military's
detention policies closer to international law would prevent further abuses and
build support overseas for the fight against Islamic extremists, officials said.

Their opponents, who include aides to Vice President Dick Cheney and some senior
Pentagon officials, have argued strongly that the proposed language is vague,
would tie the government's hands in combating terrorists and still would not
satisfy America's critics, officials said.

The debate has delayed the publication of a second major Pentagon directive on
interrogations, along with a new Army interrogations manual that was largely
completed months ago, military officials said. It also underscores a broader
struggle among senior officials over whether to scale back detention policies
that have drawn strong opposition even from close American allies.

Since Mr. Bush's second term began, several officials said, factions within the
administration have clashed over the revision of rules for the military
tribunals to be held at Guantánamo Bay, Cuba, the transfer of some prisoners
held there, and aspects of the United States' detention operations in
Afghanistan and Iraq.

"It goes back to the question of how you want to fight the war on terror," said
a senior administration official who has advocated changes but, like others,
would discuss the internal deliberations only on the condition of anonymity. "We
think you do that most successfully by creating alliances."

The document under discussion, known as Department of Defense Directive 23.10,
would provide broad guidance from Defense Secretary Donald H. Rumsfeld; while it
would not spell out specific detention and interrogation techniques, officials
said, those procedures would have to conform to its standards. It would not
cover the treatment of detainees held by the Central Intelligence Agency.

The behind-the-scenes debate over the Pentagon directive comes more than three
years after President Bush decided that the Geneva Conventions did not apply to
the fight against terrorism. It mirrors a public battle between the Bush
administration and Senator John McCain, Republican of Arizona, who is pressing a
separate legislative effort to ban the "cruel, inhuman or degrading treatment"
of any detainee in United States custody.

After a 90-to-9 vote in the Senate last month in favor of Mr. McCain's amendment
to a $445 billion defense spending bill, the White House moved to exempt
clandestine C.I.A. activities from the provision. A House-Senate conference
committee is expected to consider the issue this week.

Mr. Cheney and some of his aides have spearheaded the administration's
opposition to Senator McCain's amendment; they were also quick to oppose a draft
of the detention directive, which began to circulate in the Pentagon in mid-
September, officials said.

A central player in the fight over the directive is David S. Addington, who was
the vice president's counsel until he was named on Monday to succeed I. Lewis
Libby Jr. as Mr. Cheney's chief of staff. According to several officials, Mr.
Addington verbally assailed a Pentagon aide who was called to brief him and Mr.
Libby on the draft, objecting to its use of language drawn from Article 3 of the
Geneva Conventions.

"He left bruised and bloody," one Defense Department official said of the
Pentagon aide, Matthew C. Waxman, Mr. Rumsfeld's chief adviser on detainee
issues. "He tried to champion Article 3, and Addington just ate him for lunch."

Despite his vehemence, Mr. Addington did not necessarily win the argument,
officials said. They predicted that it would be settled by Mr. Rumsfeld after
consultation with other agencies.

But while advocates of change within the administration have prevailed in a few
skirmishes, some of those officials acknowledged privately that proponents of
the status quo still dominate the issue - partly because of the bureaucratic
difficulty of overturning policies that have been in place for several years
and, in some cases, were either approved by Justice Department lawyers or upheld
by the federal courts.

"A lot of the decisions that have been made are now difficult to get out of,"
one senior administration official said.

A spokesman for the vice president, Stephen E. Schmidt, said Mr. Addington would
have no comment on his reported role in the policy debates. A Defense Department
spokesman, Bryan Whitman, also would not discuss Mr. Waxman's role except to say
it was "certainly an exaggeration" to characterize him as having been bloodied
by Mr. Addington.

Mr. Whitman confirmed that the Pentagon officials were revising four major
documents - including the two high-level directives on detention operations and
interrogations and the Army interrogations manual - as part of its response to
the 12 major investigations and policy reviews that followed the Abu Ghraib
abuse scandal.

The four documents "are nearing completion or are either undergoing final
editing or are in some stage of final coordination," Mr. Whitman said. But he
would not comment on their contents or on the internal discussions, beyond
saying it was important "to allow and encourage a wide variety of views to come
to the surface."

The administration's policies for the detention, interrogation and prosecution
of terrorism suspects have long been a source of friction within the government.

Even some supporters of those policies have acknowledged that the tensions stem
in part from the way they were pushed through after the Sept. 11 attacks, by a
handful of administration lawyers who circumvented international-law experts,
military lawyers and even some cabinet-level officials who might have objected.

Many officials said Mr. Addington, who helped create the legal framework after
9/11, remains a bulwark in support of those policies, deftly blocking or
weakening proposed changes. Nonetheless, the internal politics of those issues
have begun to shift in Mr. Bush's second term.

Several architects of the original policies have left the government. Some other
senior officials, who had challenged aspects of the policy with limited success,
have gained stronger voices in new posts.

Condoleezza Rice, who occasionally questioned the Pentagon's management of
Guantánamo when she was national security adviser, has called more forcefully
for a reconsideration of some detention policies as secretary of state, a stance
generally backed by her successor at the White House, Stephen J. Hadley,
administration officials said. The new deputy defense secretary, Gordon R.
England, has also been an influential advocate for reviewing the detention
policies within the Pentagon, officials said.

"The results may not be very different, but the discussions have changed," a
senior military lawyer said. "And there are more discussions."

Since President Bush's decision in February 2002 to set aside the Geneva
Conventions in fighting terrorists, government lawyers have debated what legal
framework should apply to combatants in a struggle that the administration
argues does not fit into the categories of international violence contemplated
by the 1949 conventions.

Lawyers at the State Department raised the issue repeatedly, officials said. But
because the department opposed the president's original decision to put aside
the conventions, the efforts of its lawyers were largely dismissed as attempts
to revive a question that had already been decided, they added.

Beginning late last year, Defense Department lawyers took up the issue as they
revised Directive 23.10, the "DoD Program for Enemy Prisoners of War and Other
Detainees." A roughly 12-page draft of the directive, which began circulating in
the Pentagon in mid-September, received strong support from lawyers for the
armed services, the military vice chiefs and some civilian defense officials,
several officials said.

"The uniformed service lawyers are behind the rewrite because it brings the
policy into line with Geneva," one senior defense official said. "Their concern
was that we were losing our standing with allies as well as the moral high
ground with the rest of the world."

Following one of the recommendations of the Sept. 11 commission, the draft,
written by officials in Mr. Waxman's office and military lawyers, lifted
directly from Article 3 of the Geneva accords in setting out new rules for the
treatment of terrorism suspects, three officials who have reviewed the document
said.

Common Article 3, as the provision is known, sets out minimum standards for the
treatment of captured fighters and others in "armed conflicts not of an
international character." Although President Bush determined in February 2002
that the article was not relevant to Al Qaeda or the Taliban because of its
international focus, the Sept. 11 panel noted that it "was specifically designed
for those cases in which the usual laws of war did not apply."

The draft Pentagon directive adopted the language of Common Article 3 "as a
matter of policy rather than law," one defense official said. Even so, the
Geneva reference was opposed by two senior Pentagon officials, Stephen A.
Cambone, the under secretary of defense for intelligence policy, and, William J.
Haynes, the department's general counsel, defense officials said.

Mr. Addington, who has been a close bureaucratic ally of both defense officials,
soon called Mr. Waxman to the Old Executive Office Building to brief him and Mr.
Libby on the directive. Two defense officials who were told about the meeting
said Mr. Addington objected to phrases taken from Article 3 - which proscribes
"cruel treatment and torture," and "outrages upon personal dignity, in
particular murder of all kinds, mutilation, humiliating and degrading treatment"
- as problematically vague.

"We may know what they mean in the United States," one senior administration
official familiar with the debate said of the Geneva terms. "But views around
the world may differ from ours. Having a female interrogator even asking
questions of a male might be humiliating to some parts of the Muslim faith."

Another official said Mr. Addington and others also argued that Mr. Bush had
specifically rejected the Article 3 standard in 2002, setting out a different
one when he ordered that military detainees "be treated humanely and, to the
extent appropriate and consistent with military necessity, in a manner
consistent with the principles of Geneva.

Only when the dispute is resolved, defense officials said, would the Pentagon
conclude the drafting of the second directive, known as 31.15, on the
interrogation of prisoners including terrorism suspects. That document, in turn,
would make possible the publication of a roughly 200-page Army manual for
interrogations that was virtually completed last spring, officials said.

"If we don't resolve this soon," one defense official said, referring to the
overlapping debate over Senator McCain's proposal, "Congress is going to do it
for us."

Copyright 2005 The New York Times Company

*


Boston Globe --

October 23, 2005
WAR COUNSEL

Conservative legal scholar John Yoo, whose memos helped shape White House
policy, says the framers gave the president all the war powers of a king.

By Christopher Shea

http://www.boston.com/news/globe/ideas/articles/2005/10/23/war_counsel/

IN JOHN YOO'S world, President Bush didn't need to ask Congress for permission
to invade Iraq. And if the special forces captured a terrorist suspect who might
know of an upcoming attack on the New York subway, Bush could order him placed
on a torture rack -- regardless of treaties the US has signed or whether
Congress had passed laws banning torture.

Yoo is an academic -- a Berkeley law professor-but these aren't exactly
theoretical issues. The Supreme Court faces several cases concerning how much
control the president has over military detainees. And last week, Secretary of
State Condoleezza Rice told the Senate Foreign Relations Committee that the
president has the right to attack Syria, without congressional approval, if he
deems that a necessary move in the war on terror.

Nor is Yoo's experience in this area merely Ivory Tower: He clerked for Supreme
Court Justice Clarence Thomas and from 2001 to 2003 served as a lawyer in the
Justice Department's prestigious Office of Legal Counsel. Last year, Yoo found
himself at the center of controversy when it was revealed that he had written a
memo during his Justice Department stint arguing that physical interrogations
had to cause damage on the order of major organ failure before they were
considered torture under American law, and that anyway the commander in chief
was exempt from such laws.

The memo got some seriously bad reviews. "The stench of corruption permeates the
page," wrote the Yale law professor Jack Balkin, on his blog. Now, in a new
book, "The Powers of War and Peace: The Constitution and Foreign Affairs after
9/11" (Chicago), Yoo has produced a full blueprint for the kind of potent
presidency he thinks is necessary to fight the Global War on Terror. Given his
connections to the administration, Yoo's sketch of the presidency will no doubt
be interpreted in some quarters as revealing how the Bush White House sees
itself in its dreams.

When it comes to foreign policy and the president's role as commander in chief,
"Yoo concludes that for all intents and purposes we have an elected king," says
Michael J. Glennon, a professor of international law at Tufts University's
Fletcher School, reflecting a common view among left and centrist scholars.

Yet Yoo, for his part, says he's offering a fresh look at constitutional history
that not only reflects the framers' ideas, but also better mirrors the reality
of modern history than does mainstream international law. "There are these
areas -- war powers, treaties -- in which academics all say one thing, and then
presidents, Congress, and the courts all do something that is opposite," he said
in a recent interview. His book tries to explain why the people he describes as
"my friends in international law" get so many things wrong.

Yoo wants to revise our understanding of the Constitution in two areas:
presidential war powers and the interpretation of treaties.

The Constitution gives Congress the exclusive power to "declare war." But in the
mid-to-late 20th century, with hands on nuclear buttons, many scholars argued
that the president-out of exigency-had more freedom to act than a strict reading
of the clause would suggest, and presidents tested the limits of their war
powers in Korea, Cambodia, Panama, Grenada, and Kosovo, among other places. Yoo
boldly argues that this 20th-century understanding of presidential power was
exactly what the country's founders had in mind.

As Glennon's jibe about an "elected king" hints, Yoo says the Constitution was
more influenced by the 18th-century British system than scholars concede. Under
the British system, the king "has the sole prerogative of making war and peace,"
as the British legal scholar Blackstone wrote, yet Parliament exercised
considerable control via the purse strings. "The sword is in the hands of the
British king, the purse in the hands of Parliament," James Madison said during
the constitutional ratifying convention in Virginia. "It is so in America, as
far as any analogy can exist."

The 18th-century understanding of "declaring war," Yoo continues, was different
from ours. When Britain declared war on France in 1756, for example, in what
became known as the Seven Years' War (or the French and Indian War), the two
countries had been fighting in North America for two years already. The
declaration, Yoo argues, was a diplomatic notification, not a military decision,
telling English citizens, for example, that any communication with the French
king was now illegal.

If the framers meant "make war," but wrote "declare war," they would be "very
clumsy draftsmen indeed," Yoo writes.

As Parliament did with the king, Congress today still controls the military
through its budget: If it wanted to stop adventures in Panama, Grenada, or
Kosovo, it has only to stop funding them.

Curtis Bradley, a professor of law at Duke, says Yoo has made a "major
contribution" in showing the founders may have thought congressional control of
war had more to do with appropriations than explicit declarations or authorizing
statutes. But he points out that George Washington did not have a standing army
to order into battle. He needed congressional funding to take the first martial
step. He's not sure the Yoo view can apply when presidents wield aircraft
carriers and missiles.

Yoo returns again and again, with something like glee, to President Clinton's
flouting of the War Powers Resolution, a 1973 statute (which Yoo deems
unconstitutional) affirming the traditional view of shared war powers. Kosovo
shows, Yoo says, that even human-rights activists share his view of presidential
power, so long as they agree with the president's goals.

But as Lori Damrosch, a Columbia law professor sees it, the fact that President
Bush sought congressional approval for the Iraq and Afghanistan wars, and that
his father sought its blessing for the first Gulf War, shows that even they
reject the Yoo position. "We can look at 1991, and 2001, and 2003, and say,
'Finally the Constitution is working as it's supposed to,' " says Damrosch.

Nor, according to Jane Stromseth, a professor of law at Georgetown, does a
reading of the founding documents support Yoo's position. "The founders," she
says, "had a deep commitment to the idea that no one person should be able to
take the country into war."

Yoo's other revisionist project-the more arcane question of who gets to enforce
international treaties-bears directly on the issue of the military detainees at
Guantanamo Bay. Here, too, his critics say his constitutional readings are just
a little too clever for their own good.

The Constitution makes treaties -- along with federal law -- "the Supreme Law of
the Land." Yet Yoo, exploring how early US treaties were actually managed, says
that the founders' understanding was that in cases in which treaties affect
domestic law, Congress has to pass legislation "executing" them before courts
can get involved.

"He has 200 years of Supreme Court precedent against him on that one," says
Michael van Alstine, at the University of Maryland's law school.

Congress has not passed legislation clarifying how the Geneva Conventions should
be enforced under US law. "If these treaties are self-executing," Yoo says, "it
would draw the courts directly into the management of the Guantanamo
facilities."

Of course, human-rights advocates would say a little judicial management at
Guantanamo might not be a bad idea. "There is nothing that says the courts have
to sit on the sideline and abide by the executive's judgment," says the Fletcher
School's Glennon.

To the contrary, says Yoo, that's exactly what the Constitution says the courts
must do: bench themselves. And the Supreme Court-divided on this question-will
soon decide whether it agrees.

[ Christopher Shea writes the Critical Faculties column for Ideas. E-mail
critical.faculties@verizon.net ]

© Copyright 2005 Globe Newspaper Company

*


Washington Post --

October 23, 2005; page A01

IN THE SPOTLIGHT AND ON THE SPOT
Scooter Libby, Backstage No More

By Mark Leibovich

http://www.washingtonpost.com/wp-
dyn/content/article/2005/10/22/AR2005102201439.html

I. Lewis "Scooter" Libby is known for his sarcastic, world-weary and at times
dark sense of humor. He once quipped to an aide that he planned to stay as Vice
President Cheney's top adviser until "I get indicted or something."

That was during President Bush's first term, brighter days for the
administration and, more to the point, before a special prosecutor was
investigating Libby's possible role in disclosing the identity of a covert CIA
officer, Valerie Plame.

The joke -- recounted by the aide, who no longer works in the administration --
sounded absurd at the time, given Libby's renown for canniness and prudence. He
adheres to a favorite Cheney maxim that the vice president credits to the late
Sam Rayburn, a longtime House speaker: "You never get in trouble for something
you don't say."

Yet Libby could find himself in big trouble for saying too much. And this jibes
with a lesser-known side of Libby, the audacious novelist and daredevil skier
who has long been gripped with concern about exotic terrorist scenarios; who
fervently argues his own viewpoints, particularly on matters of foreign policy;
and who can become, friends and associates say, overly passionate in the face of
opposing ones.

Libby, 55, has displayed this aspect of himself in a series of heady stations
throughout his career -- at the State Department, the Pentagon and, for the past
five years, in the Bush administration. Reporters have seen this side of Libby,
too, in his full animated conviction. But almost always on deep background, out
of public view.

Now Libby's cover of anonymity is blown -- and for possibly blowing the cover of
a CIA operative. People close to Libby point out the incongruity of the whole
thing.

"He's always been excruciatingly careful, which is ironic in his situation,"
says World Bank chief Paul Wolfowitz, a former deputy secretary of defense and a
longtime mentor of Libby's.

The "situation," of course, refers to the Plame case. Prosecutor Patrick
Fitzgerald is said to be focused on whether Libby and presidential adviser Karl
Rove had a part in divulging Plame's identity in an attempt to discredit her
husband, retired diplomat Joseph Wilson.

Wilson, who undertook a mission to Africa in 2002, was widely critical of the
Bush administration's claims that Iraq had tried to obtain uranium from Niger.
Fitzgerald is investigating whether officials in the administration sought to
undermine Wilson by outing his wife.

Libby has testified in at least two grand jury appearances about his
conversations with reporters on the Plame matter -- including two from The
Washington Post. He also spoke at least three times with the New York Times's
Judith Miller, who spent 85 days in jail before accepting permission from Libby
to tell the grand jury about their conversations. The Times published a nearly
6,000-word account last Sunday about Miller's dealings with Libby. The story
revealed that the misspelled moniker "Valerie Flame" appeared in the same
notebook Miller used during an interview with Libby. (In a separate first-person
article, Miller wrote she told the grand jury that she believed the name came
from another source, whom she could not recall.)

The grand jury's term expires next Friday, and Fitzgerald is expected to reveal
his intentions in a matter of days.

Friends describe Libby as engaging and unfailingly chivalrous; it is his habit
to stand when a female dining partner excuses herself. He is diligent about
returning reporters' calls, albeit on deep background and, in most cases,
"telling you absolutely nothing," says William Kristol, a conservative columnist
and longtime acquaintance of Libby's who served as chief of staff to Vice
President Quayle. Kristol says Libby "is someone who would seem to spend a lot
of effort at not getting caught up in something like this."

Libby, who declined to be interviewed for this story, is taut and compact, with
small eyes and a short mop of graying brown hair. As has been the case through
much of his career, he works long hours and complains that he doesn't see enough
of his wife and two children. He's been hobbled after breaking a bone in his
foot while running up stairs. He has looked gaunt and tired of late, according
to those who have seen him, and he told at least two friends and associates that
he was thinking of leaving the administration after the 2004 election to spend
more time writing and skiing.

But those plans would seem to be on hold, at least until the Plame case is
settled.

Among vice-presidential aides throughout history, Libby is distinctive for the
power and authority he wields, a product largely of Cheney's outsize role in the
Bush administration. Libby holds three titles: chief of staff and national
security adviser to Cheney, and assistant to Bush. Like few other advisers, he
attends the highest level of White House meetings. He attends the weekly
gathering of Bush's top economic advisers and -- according to Bob Woodward's
book "Plan of Attack," about the Bush administration's run-up to the Iraq war --
was one of two non-principals who attended National Security Council meetings
with the president after Sept. 11, 2001 (the other was Condoleezza Rice's then-
deputy, Stephen Hadley).

In these meetings, Libby rarely speaks. He fixes his eyes on whomever is talking
and often presses his fingers over his lips. "He sits there in the background
with this little half-smile," says former senator Alan Simpson, the Wyoming
Republican and one of Cheney's closest friends. Cheney vacations in Wyoming, and
Libby usually goes along. "He's a dissector," Simpson says of Libby. "He is the
ultimate, clinical professional."

Then there is the Libby whom Cheney adviser Mary Matalin calls "the other
Scooter" and "the man who you pray you get seated next to at a dinner party."

It took him 20 years to complete "The Apprentice," a soaring, erotically charged
novel set in rural Japan during a blizzard in 1903. "I went out to Colorado,
drank tequila and wrote," Libby told CNN's Larry King in 2002 in a rare
television interview, the bulk of which he spent discussing the 1996 novel,
which had just been issued in paperback.

Wolfowitz, Libby's political science professor at Yale in the 1970s, recalls
Libby telling him that "The Apprentice" was originally set in Vermont, but he
eventually decided it would work better in Japan. He threw 300 pages away and
started again.

The author's "storytelling skill neatly mixes conspiratorial murmurs with a
boy's emotional turmoil," the New York Times Book Review said of the novel.

A more recent piece of Libby's writing also drew attention, if not acclaim.

"You went to jail in the summer," Libby wrote in a letter to Miller, waxing
pastoral after he freed her to speak to the grand jury about their
conversations. "It is fall now. . . . Out west, where you vacation, the aspens
will already be turning. They turn in clusters, because their roots connect
them. Come back to work -- and life."

The spy-novel dexterity of Libby's mind and the odd flamboyance of his prose
raised questions that he might have been trying to say something more.

"How do I interpret that?" Fitzgerald asked Miller during her grand jury
testimony, according to her account in the Times.

Friends say Libby cultivates an enigmatic bearing, one epitomized at the end of
Miller's first-person account. She tells of her last face-to-face encounter with
Libby, in August 2003 in Jackson Hole, Wyo., after she had attended a conference
in Aspen, Colo. "At a rodeo one afternoon, a man in jeans, a cowboy hat and
sunglasses approached me," Miller wrote. "He asked me how the Aspen conference
had gone. I had no idea who he was.

" 'Judy,' he said. 'It's Scooter Libby.' "

Several aspects of Libby are subject to varied interpretations, or at the very
least, casual mystery. Libby is loath to disclose -- even to close friends --
what the "I" stands for in his name. Matalin credits USA Today with "breaking"
the story that Libby's first name is "Irv" (though other publications had
reported "Irving" and public databases list him as "Irve").

Cheney's office would not confirm or deny what the "I" stands for.

Likewise, there are differing accounts of where "Scooter" comes from. He told
the New York Times in 2002 that his father, an investment banker now deceased,
coined it upon seeing him crawl across his crib. The same year, in an interview
with King, Libby spoke of a childhood comparison to New York Yankees Hall of
Fame shortstop Phil "Scooter" Rizzuto ("I had the range but not the arm," Libby
said).

Libby was born in New Haven, Conn., raised in Florida and -- like Bush --
attended prep school at Phillips Andover and college at Yale. He lives in McLean
with his children and wife, Harriet Grant, a former lawyer on the Democratic
staff of the Senate Judiciary Committee. Until he broke his foot, Libby played
in a weekly touch football game in Chevy Chase.

After graduating from Columbia Law School, Libby was practicing law in
Philadelphia in 1981 when Wolfowitz, then an assistant secretary of state,
recruited him as a speech writer. At the time, Libby was reading William
Stevenson's "A Man Called Intrepid," which described the British and American
spy operation before and during World War II. "The characters' lives seemed
considerably more exciting and meaningful than Libby's work in Philadelphia,"
wrote James Mann in the 2004 book "Rise of the Vulcans: The History of Bush's
War Cabinet."

Libby also worked for Wolfowitz during Wolfowitz's stint as policy
undersecretary of defense during the first Bush administration. He had long been
interested in unconventional warfare, particularly in the Middle East, and his
portfolio included the biological and chemical capabilities of Saddam Hussein.
Cheney, then secretary of defense, shared Libby's interest in weapons of mass
destruction and was, according to a Pentagon official of that era, impressed by
his diligence and analytical skill.

It was during the Gulf War that Miller also took notice of Libby. In a book that
she co-wrote, "Germs: Biological Weapons and America's Secret War," Libby is
described as "a trim, boyish lawyer" who was frustrated that intelligence
reports about Iraq's biological weapons program contained words like "probably"
and "possibly."

"Libby," the book said, "told colleagues that intelligence analysts had an
unfortunate habit: If they did not see a report on something, they assumed it
did not exist."

The Gulf War era integrated several themes that have pervaded Libby's career:
his interest in Iraq and weapons of mass destruction, his frustration with the
U.S. intelligence apparatus and his willingness to make leaps and support
preemptive action. He shared the disappointment of his Pentagon bosses --
Wolfowitz and Cheney -- that the U.S. effort in the Gulf War had not toppled
Hussein.

During the Clinton years, Libby practiced law at the Washington office of
Dechert, Price and Rhoads, where he represented Marc Rich, the fugitive
billionaire whom Clinton pardoned hours before he left office. Libby was called
to testify before a congressional committee investigating Clinton's pardons
during the first months of the Bush administration.

The Sept. 11, 2001, attacks confirmed Libby's long-held view that Islamic
terrorism was the foremost threat of the post-Cold War era. He had studied the
topic for years and had spoken often of its horrific perils to the United
States. "I was hounded by Scooter about what we were doing about things like
anthrax," Wolfowitz says, referring to 2002. "He was very concerned about what
he saw as a general lack of preparedness."

Libby greatly admires the work of Victor Davis Hanson, a classicist and military
historian who posits that warfare is an inevitable part of civilization, evil is
a basic condition of humanity, and tyrants must be confronted by the harshest
possible means. (In late 2002, a few months before the Iraq invasion, Cheney --
also a Hanson devotee -- invited the historian to the vice president's mansion
for a small dinner gathering that included Libby.)

Hanson's stark perspective comports with Libby's view on Iraq. He was among the
administration's fiercest proponents of the invasion, and his office prepared a
48-page document of intelligence on Iraq WMDs for Secretary of State Colin
Powell's speech to the United Nations in February 2003. (Powell couldn't confirm
a lot of the data and wound up not using much of it.)

In his office in the Old Executive Office Building -- once occupied by Theodore
and Franklin Roosevelt during their respective stints as assistant secretaries
of the Navy -- Libby keeps a photograph of Winston Churchill. Like Wolfowitz,
Cheney and many of the Bush administration's Iraq hawks, Libby reveres Churchill
for his willingness to confront evil boldly and his unwillingness to compromise.
In a December 2001 interview with James Mann, Libby read from "The Gathering
Storm," Churchill's memoir of the years preceding World War II. "I felt as
though I were walking with destiny," Churchill wrote of the moment he became the
British prime minister, "and that all my past life had been a preparation for
the hour and for this trial."

That passage, Libby told Mann, could also have applied to his boss, Cheney, on
Sept. 11.

In this context of urgency, Libby can be impatient. And, associates say, he
could become infuriated over discordant views over Iraq, both from within and
outside the administration. On Friday the Los Angeles Times -- quoting former
aides -- reported that Libby became so enraged about Wilson's public statements
that he monitored all of the former ambassador's television appearances and
urged the administration to wage an aggressive campaign against him. (Cheney's
office declined to comment on the report.)

Friends and associates say Libby remains unbowed about the U.S. action in Iraq,
and despite the setbacks of recent months has shown no hint of doubt. In times
of travail, Libby recalls the excitement of his job and the grandeur of his
mission.

"Cheney and Scooter play chess on several different levels," Matalin says.
"That's how their minds work. It's not about what's right in front of him. They
look at things in the sweep of history.

"The Wilson thing was almost mosquito-esque."

[ Researcher Meg Smith contributed to this report. ]

© 2005 The Washington Post Company

*


Los Angeles Times --

October 21, 2005

BUSH CRITIC BECAME TARGET OF LIBBY, FORMER AIDES SAY

* Cheney's chief of staff reportedly sought an aggressive campaign against
Wilson.

By Peter Wallsten and Tom Hamburger

http://www.latimes.com/news/printedition/la-na-libby21oct21,1,1616787.story

WASHINGTON -- Vice President Dick Cheney's chief of staff was so angry about the
public statements of former Ambassador Joseph C. Wilson IV, a Bush
administration critic married to an undercover CIA officer, that he monitored
all of Wilson's television appearances and urged the White House to mount an
aggressive public campaign against him, former aides say.

Those efforts by the chief of staff, I. Lewis "Scooter" Libby, began shortly
after Wilson went public with his criticisms in 2003. But they continued into
last year -- well after the Justice Department began an investigation in
September 2003, into whether administration officials had illegally disclosed
the CIA operative's identity, say former White House aides.

While other administration officials were maintaining a careful distance from
Wilson in 2004, Libby ordered up a compendium of information that could be used
to rebut Wilson's claims that the administration had "twisted" intelligence to
exaggerate the threat from Iraq before the U.S. invasion.

Libby pressed the administration to publicly counter Wilson, sparking a debate
with other White House officials who thought the tactic would call more
attention to the former diplomat and his criticisms. That debate ended after an
April 2004 meeting in the office of White House Communications Director Daniel
Bartlett, when staffers were told "don't engage" Wilson, according to notes
taken during the meeting by one person present.

"Scooter had a plan to counter Wilson and a passionate desire to do so," said a
second person, a former White House official familiar with the internal
deliberations. Like other former White House staff, this person spoke on
condition of anonymity because of the ongoing criminal investigation.

Libby's actions and those of top White House political advisor Karl Rove are
being scrutinized as special prosecutor Patrick J. Fitzgerald concludes his 22-
month investigation into the exposure of Wilson's wife, covert CIA operative
Valerie Plame.

Fitzgerald is examining whether Plame's name was leaked to the media by
administration officials in violation of a federal law that prohibits knowingly
disclosing the identity of a covert agent.

Libby's anger over Wilson's 2003 charges has been known. But new interviews and
documents obtained by The Times provide a more detailed view of the depth and
duration of Libby's interest in Wilson. They also show that the vice president's
office closely monitored news coverage.

On one occasion, the office prohibited a reporter from traveling with Cheney
aboard Air Force Two, because the vice president's daughter said Cheney was
unhappy with that newspaper's coverage.

Libby "would see something had appeared in the newspaper or on television and
wanted to use the White House operation to counter it," one former official
said.

After Wilson published a book criticizing the administration in April 2004,
during the closely fought presidential campaign, Libby became consumed by
passages that he believed were inaccurate or unfair to Cheney, former aides
said. He ordered up a meticulous catalog of Wilson's claims and public
statements going back to early 2003.

The result was a packet that included excerpts from press clips and television
transcripts of Wilson's statements that were divided into categories, such as
"political ties" or "WMD."

The compendium used boldfaced type to call attention to certain comments by
Wilson, such as one in the Daily Iowan, the University of Iowa student
newspaper, in which Wilson was quoted as calling Cheney "a lying son of a
bitch." It also highlighted Wilson's answers to questions from television
journalists about his work with Sen. John F. Kerry, the Democratic presidential
nominee.

The intensity with which Libby reacted to Wilson had many senior White House
staffers puzzled, and few agreed with his counterattack plan or its rationale,
former aides said.

Though the White House did not respond to Wilson's claims, the Republican
National Committee did strike back with a series of press releases attacking his
credibility.

One prominent former Cheney aide defended Libby on Thursday, saying he was
zealous and passionate about everything he worked on -- not just the Wilson
episode.

"Scooter is the most methodical, detail-oriented and comprehensive worker of
anybody I've ever worked with in my life," said Mary Matalin, a former Cheney
advisor who worked as a consultant on the 2004 campaign.

"He leaves no stone unturned, and it doesn't matter what the topic is," she
said. "That's the nature of Scooter, and that's why he's such a superior
intellect and why Cheney and the president and everybody over there respects
him."

Wilson, reached by telephone while on a speaking tour in California, said
Thursday that he was outraged by the extent of the White House effort to track
and counter his statements.

"What an abuse of power," Wilson said. "What the hell are they doing using
taxpayer funded employees to root around and find information on me?"

Libby's intense interest in Wilson may help explain why he has become a focus in
the federal investigation into who leaked Valerie Plame's name.

The case had its origins in early 2002, when Cheney asked the CIA for
information on reports that Iraq had sought to purchase uranium yellowcake from
the African nation of Niger.

In response to Cheney's queries, the CIA decided to send Wilson, who had served
in the region and was familiar with the uranium trade, to investigate. Wilson's
wife was working undercover for the CIA on weapons issues at the time.

On his trip to Niger, Wilson found little reason to believe the Iraqis had
sought the uranium, and on his return reported his findings to CIA officials.

In January 2003, President Bush in his State of the Union address cited Iraq's
interest in African uranium as a sign of President Saddam Hussein's interest in
acquiring nuclear weapons. In July, Wilson penned an op-ed piece for the New
York Times describing his findings and suggesting that the president had
distorted intelligence to justify an invasion of Iraq.

Within days, administration officials were telling reporters that Wilson had
been sent to Niger as a boondoggle arranged by his wife, who worked at the CIA.
Syndicated columnist Robert Novak published her name on July 14.

It can be a felony to knowingly leak the identity of a covert agent, and in late
2003 the Justice Department appointed Fitzgerald to investigate. Fitzgerald is
nearing the end of his inquiry into the leak and has focused on Rove and Libby,
among others.

Rove and Libby have both reportedly testified that they learned about Plame from
others, did not know she had covert status and did not reveal her name to
reporters. The White House and a lawyer for Libby declined to comment Thursday.

The documents and interviews portray Libby as highly attuned to detail. He
dictated the format for internal memos, including that paragraphs be indented.

The documents and interviews show that, when it came to monitoring media
coverage of Wilson and other issues affecting the vice president's reputation,
Libby was meticulous. Staffers were instructed to use Nexis and Google to watch
even the most obscure publications.

The sensitivity extended in at least one case to the vice president's daughter,
Liz Cheney, who worked as a campaign advisor.

During a time of tension between the New York Times and the campaign over
coverage, aides recommended that a reporter from the paper be allowed to fly
aboard Cheney's plane with others in the press corps. Liz Cheney had a different
idea.

Writing from her Blackberry, a mobile e-mail device, she noted that her father
was upset with a story that appeared in that morning's newspaper, saying: "vp
has totally had it with nytimes. This is really not the right time to ask him to
charm a reporter from that paper."

The reporter was excluded from the vice president's plane.

Copyright 2005 Los Angeles Times

*


Boston Globe --

August 13, 2005
LAWYERS CITE GUANTANAMO CONCESSIONS
US said to be negotiating with prisoners

By Charlie Savage

http://www.boston.com/news/nation/washington/articles/2005/08/13/lawyers_cite_gu
antanamo_concessions/

WASHINGTON -- The US military is negotiating with prisoners at Guantanamo Bay
prison and meeting some demands for improved living conditions -- including
bottled water at every meal, better food, and more access to books -- according
to two attorneys who separately learned of the development during recent visits
with inmate clients.

The concessions were prompted by a hunger strike last month that allegedly
resulted in dozens of detainees being hospitalized on intravenous fluids. To end
the protest, the military allowed six detainee representatives to gather
complaints and negotiate over living conditions with prison authorities, said
attorney Rob Kirsch, whose notes from a visit this week were declassified
yesterday.

''As a result of the hunger strike, a colonel . . . set up a committee which has
six prisoners on it that meets together," Kirsch said. ''They are from different
areas of the camp. They are allowed limited ability to speak to other prisoners.
They are allowed to meet for a few hours a week, and occasionally should be
meeting with the colonel."

Kirsch, who represents six Algerian detainees, said one of his clients was among
the group who negotiated with prison authorities, meeting for the first time on
Aug. 1, he said.

At that meeting, the military agreed to give each detainee three fresh bottles
of drinking water a day. Previously, inmates had access only to tap water that
was piped into sinks in their cells. The poor quality of water was a chief
complaint in the hunger strike.

''Because of the work of the committee and the promises made as of Aug. 1,
prisoners began receiving three bottles of bottled water each day -- one with
each meal -- compared to what they had previously gotten, which in some
instances was only one a month," Kirsch said, citing his notes. ''The fact that
they are getting three bottles of clean water is, we think, a significant
improvement over the horrible water they got before."

The prison command staff, responding to Globe questions in writing, said,
''There is no new committee formed by the detainees. Camp leadership routinely
receives and addresses concerns from detainees consistent with the spirit of the
Geneva Conventions."

The staff spokesman did not offer a response to the assertion that detainees are
now receiving three bottles of water per day for the first time. He wrote that
the prison staff is working ''to increase the selection of books in our library"
and ''is always working to improve the manner in which we provide safe and human
[sic] detention of enemy combatants."

But attorney David Remes, whose notes from a visit to his Yemeni clients at the
base last week were also declassified yesterday, confirmed Kirsch's account of
negotiations with detainee representatives. He said his clients, too, told him
that the military had promised the inmates better food and that they would no
longer be issued differently colored clothing to signify their treatment.

Under a system established by the command staff in 2003, detainees who cooperate
with guards and interrogators are allowed to wear white clothing, while those
who do not cooperate wear orange jumpsuits. In the recent negotiations, Remes
said the detainees asked for the dual-uniform to be dropped.

''Some detainee representatives were negotiating the resolution of the hunger
strike," Remes said. ''I can confirm the bottled water, the improvement of the
food, and the elimination of the uniform gradations as an independent matter. I
don't know if that means they will all end up wearing white, or if they will all
end up wearing olive gray, or something else."

The command staff, in its written response to the Globe, said: ''Detainees
continue to wear different colored clothing consistent with detainee compliance
of camp rules." The statement made no reference to any plans to change the
policy, and spokesmen declined to elaborate beyond the written response.

The improvement of conditions at Guantanamo Bay comes amid several other signs
that the Bush administration is changing its policy toward the roughly 500
prisoners at the prison, most of whom are approaching their fourth anniversary
of being held without trials.

In a court filing this week, Brigadier General Jay Hood, the commander of the
prison operation, said the military was planning improvements in the living
conditions for detainees who have been cleared to leave but cannot be sent home
for various reasons. Hood said they would soon live in a special wing of the
prison with air conditioning, better food, a television, and a DVD player.

Moreover, the State Department announced last week that it had finalized an
agreement with Afghanistan to transfer custody of more than 100 accused Taliban
prisoners as soon as a new prison is built. The administration said it is
negotiating with several countries and hopes to transfer custody of 80 percent
of the prison population within the year.

Eugene Fidell, president of the National Institute for Military Justice and a
critic of the Bush administration's Guantanamo policy, said allowing detainees
to have representatives to negotiate with prison authorities would bring
Guantanamo closer in line with a traditional prisoner-of-war camp under the
Geneva Conventions.

''It sounds more and more like a POW camp down there," Fidell said. ''I would
say that this is a sea change if it's true. And it would be very hard to roll it
back once the crisis of a mass hunger strike has passed. Expectations take root.
That's human nature."

That view was echoed by Mark Jacobson, who helped formulate Guantanamo policy at
the Pentagon from 2001 until 2003. Jacobson said allowing detainees to have
representatives would mark a major shift in how the military handles the prison
population.

He said such a move would hold the risk of allowing the detainees to organize
against their captors, but that it could also make them more compliant at a time
when many detainees may be moved around in preparation for transfers home.
© Copyright 2005 Globe Newspaper Company.

*

New York Times --

August 8, 2005
ABUSE CASES OPEN COMMAND ISSUES AT ARMY PRISON
By Tim Golden

http://www.nytimes.com/2005/08/08/national/nationalspecial3/08bagram.html

FORT BLISS, Tex., Aug. 4 - In a small courtroom at this vast Army training base,
military prosecutors have been moving briskly to dispense with the cases they
have filed in the brutal deaths in 2002 of two Afghan prisoners at the American
military detention center in Bagram, Afghanistan.

On Thursday, a 24-year-old military intelligence sergeant pleaded guilty to
assault and dereliction of duty for abusing one of the prisoners during an
interrogation. Another interrogator, accused of tormenting the same detainee,
agreed to plead guilty two days before. Military lawyers said that a plea deal
was being negotiated with a third interrogator and that two reservist military
policemen who received lesser punishments were cooperating with the inquiry.

Military officials said they hoped the prosecutions would send a message that
such abuses will not be tolerated, even in the country's fight against
terrorism.

But whatever their long-term implications, the cases have so far tended to
illustrate how unprepared many soldiers were for their duties at Bagram, how
loosely some were supervised and how vaguely the rules under which they operated
were often defined.

Along with other information that has emerged, trial testimony has underscored a
question long at the core of this case: what is the responsibility of more
senior military personnel for the abuses that took place?

Many former Bagram officers have denied knowing about any serious mistreatment
of detainees before the two deaths. But others said some of the methods that
prosecutors have cited as a basis for criminal charges, including chaining
prisoners to the ceilings of isolation cells for long periods, were either
standard practice at the prison or well-known to those who oversaw it.

None of the nine soldiers prosecuted thus far are officers. The 18 others
against whom Army investigators have recommended criminal charges include two
captains, the military intelligence officer in charge of the interrogation group
and the reservist commander of the military police guards.

In the first interview granted by any of the accused soldiers, a former guard
charged with maiming and assault said that he and other reservist military
policemen were specifically instructed at Bagram how to deliver the type of
blows that killed the two detainees, and that the strikes were commonly used
when prisoners resisted being hooded or shackled.

"I just don't understand how, if we were given training to do this, you can say
that we were wrong and should have known better," said the soldier, Pvt. Willie
V. Brand, 26, of Cincinnati, a father of four who volunteered for tours in
Afghanistan and Kosovo.

In interviews and statements to investigators, soldiers who served at Bagram
have at times echoed the defenses offered unsuccessfully by the soldiers charged
with abuses at the Abu Ghraib prison in Iraq, saying they were acting on
instructions from military intelligence personnel or on the authority of
superior officers.

But documents from the Bagram investigation and interviews with military
officials suggest that at least some soldiers implicated in the two deaths may
be able to make such arguments more forcefully than their counterparts from Abu
Ghraib, who were unable to prove any authorization for their actions.

Witness statements and interviews, for example, indicate that there was a long-
running conflict at Bagram between military intelligence and military police
units over the interrogators' use of guards to keep awake detainees whom they
wanted disoriented for questioning.

The statements are among nearly 2,000 pages of documents from the criminal
investigation that the Army began after the two men, a brother of a reputed
Taliban commander and a young taxi driver, died six days apart in December 2002.
The New York Times obtained a copy of the case file from a person involved in
the inquiry who was critical of the military's response to the abuses.

Last October, a final report by the Criminal Investigation Command of the Army
recommended charges against 27 soldiers and officers. It said both deaths were
primarily caused by severe trauma to the men's legs, which led to a blood clot
and a pulmonary embolism in one and heart failure in the other. The report added
that "sleep deprivation at the direction of military intelligence soldiers" was
also a "direct contributing factor" in the death of the taxi driver.

Private Brand, the guard who has faced the most serious charges, was perhaps the
most open and self-incriminating in his sworn statements to investigators. In
three interviews, he said he repeatedly struck the two shackled detainees above
the knee with blows intended to incapacitate the leg by hitting the common
peroneal nerve.

Private Brand said he struck the first detainee who died, Mullah Habibullah,
about four times so he could force a hood over his head. He said he struck the
taxi driver, a slight 22-year-old known only as Dilawar, "somewhere in the area
of 37 times, less than 40 for sure," after becoming frustrated with his
recalcitrance.

In a court hearing in March, one prosecutor noted that Private Brand also told
investigators that the guards were also instructed to use the knee strikes for
self-defense and "not for mere resistance."

But in an interview at Fort Bliss, where he is awaiting trial later this month,
Private Brand insisted that the knee strikes were taught at Bagram as a basic
way to gain the compliance of prisoners. Other soldiers have said the blows were
also part of training overseen by sergeants in the reserve unit, the 377th
Military Police Battalion, before it deployed overseas.

Private Brand said that when his platoon took over the night shift at the
detention center, he was told that prisoners would often resist when military
intelligence soldiers ordered hoods pulled over their heads.

"So you just give them a common peroneal strike and yank it down and be on your
merry way," he said. "It just seemed like the way to control people."

Private Brand, a security guard who dreamed of joining the regular Army, had
more experience than many of his fellow reservists. One of his former sergeants
testified that he had been regarded as a model soldier.

In recommending the dismissal of an involuntary manslaughter charge that Army
prosecutors initially sought against Private Brand, the investigating officer
who oversaw his pretrial inquiry, Col. Stephen B. Pence, wrote that there was
"no evidence that the accused knew or should have known" that the knee strikes
could mortally injure a detainee, or that the blows "would be anything other
than temporarily disabling."

A lawyer for another military policeman who has been charged, Specialist Anthony
M. Morden, said in a pretrial hearing that witnesses he hoped to call would
testify that the guards were "specifically authorized to use force to gain
compliance."

The lawyer for one of the former military intelligence soldiers, Sgt. Selena M.
Salcedo, pointed to her lack of preparation as she entered a guilty plea, saying
she had no prior training in interrogations and learned that she would be
questioning prisoners only after arriving in Afghanistan.

Sergeant Salcedo, 24, said she became frustrated with Mr. Dilawar when he
refused to look at her during an interrogation, a problem she said she faced as
a woman dealing with Afghan and Arab detainees. She admitted kicking Mr. Dilawar
in the knees and thighs, grabbing him by the ears when he looked away, and
pulling him up repeatedly when he was unable to hold "stress positions" against
a wall because of his injuries.

"She knew that she didn't have the training or experience as an interrogator,"
said her lawyer, Capt. Mario J. DeRossi. "She never once said, 'I can't do it.'
"

The judge in the case, Lt. Col. Mark P. Sposato, appeared to be persuaded by
those arguments, along with testimony that Sergeant Salcedo, too, had otherwise
been a model soldier, finishing first in her training class, volunteering for
duty in Iraq and being recommended for several awards. He brushed aside the
prosecution's request that she be imprisoned for eight months and dishonorably
discharged, and sentenced her instead to a one-grade demotion, a written
reprimand and a $1,000 fine.

But like Colonel Pence, Colonel Sposato has thus far entertained few questions
about the wider responsibility for abuses at Bagram, denying requests by Private
Brand's lawyers to call a string of witnesses who they said could shed light on
the orders and training the guards received.

The senior military intelligence official at Bagram, Brig. Gen. Theodore C.
Nicholas II, who was then a colonel, told investigators last year that the
interrogators were restricted to methods codified long before the Sept. 11
attacks in Army Field Manual 34-52.

General Nicholas said he did "not recall" detainees being shackled with their
arms overhead to deprive them of sleep, as other officers said was commonly
done. General Nicholas said he once saw shackles dangling from the metal bars
above a holding cell but was told they were reserved for the temporary
punishment of combative detainees.

"I recall saying they better ensure the individual's feet could touch the
floor," he told the investigators last year.

An intelligence officer beneath General Nicholas who dealt more directly with
the interrogation group, Lt. Col. Ronald R. Stallings, told investigators that
he, too, "had no idea" that prisoners were being chained overhead for more than
24 hours at a time. But Lt. Col. John W. Loffert Jr., who took over as the
intelligence operations officer shortly before the deaths, said he saw the
practice being used as soon as he arrived at the detention center.

"I know they were forced to stand, handcuffed to chains that extended from the
ceiling," Colonel Loffert told investigators. "Their hands were approximately
chest-level. It was plainly visible and discussed as a technique" during an
inquiry ordered by the American military commander at Bagram after the deaths.

In their final report, the investigators recommended that prosecutors charge the
junior officer who led the interrogation group, Capt. Carolyn A. Wood, with
dereliction of duty, saying "she was clearly informed the techniques documented
within F.M. 34-52 were the only approved interrogation techniques to be used at
Bagram."

But in a statement given in the commander's inquiry, Captain Wood asked for
"additional legal guidance" about techniques like stress positions and sleep
deprivation.

In interviews, other former interrogators said she and the staff sergeant who
was her deputy had for months been seeking clarification from their superiors
about the interrogation methods they could use.

"They asked many, many times," said one former Bagram interrogator who agreed to
speak only on condition of anonymity because of the continuing investigation.
"The lack of guidance was a source of frustration for them. My own feeling is
that it was never given because nobody wanted to put themselves on the line."

*


Washington Post --

August 3, 2005
DOCUMENTS TELL OF BRUTAL IMPROVISATION BY GIS
By Josh White

http://www.washingtonpost.com/wp-
dyn/content/article/2005/08/02/AR2005080201941.html

Iraqi Maj. Gen. Abed Hamed Mowhoush was being stubborn with his American
captors, and a series of intense beatings and creative interrogation tactics
were not enough to break his will. On the morning of Nov. 26, 2003, a U.S. Army
interrogator and a military guard grabbed a green sleeping bag, stuffed Mowhoush
inside, wrapped him in an electrical cord, laid him on the floor and began to go
to work. Again.

It was inside the sleeping bag that the 56-year-old detainee took his last
breath through broken ribs, lying on the floor beneath a U.S. soldier in
Interrogation Room 6 in the western Iraqi desert. Two days before, a secret CIA-
sponsored group of Iraqi paramilitaries, working with Army interrogators, had
beaten Mowhoush nearly senseless, using fists, a club and a rubber hose,
according to classified documents.

The sleeping bag was the idea of a soldier who remembered how his older brother
used to force him into one, and how scared and vulnerable it made him feel.
Senior officers in charge of the facility near the Syrian border believed that
such "claustrophobic techniques" were approved ways to gain information from
detainees, part of what military regulations refer to as a "fear up" tactic,
according to military court documents.

The circumstances that led up to Mowhoush's death paint a vivid example of how
the pressure to produce intelligence for anti-terrorism efforts and the war in
Iraq led U.S. military interrogators to improvise and develop abusive measures,
not just at Abu Ghraib but in detention centers elsewhere in Iraq, in
Afghanistan and at Guantanamo Bay, Cuba. Mowhoush's ordeal in Qaim, over 16 days
in November 2003, also reflects U.S. government secrecy surrounding some abuse
cases and gives a glimpse into a covert CIA unit that was set up to foment
rebellion before the war and took part in some interrogations during the
insurgency.

The sleeping-bag interrogation and beatings were taking place in Qaim about the
same time that soldiers at Abu Ghraib, outside Baghdad, were using dogs to
intimidate detainees, putting women's underwear on their heads, forcing them to
strip in front of female soldiers and attaching at least one to a leash. It was
a time when U.S. interrogators were coming up with their own tactics to get
detainees to talk, many of which they considered logical interpretations of
broad-brush categories in the Army Field Manual, with labels such as "fear up"
or "pride and ego down" or "futility."

Other tactics, such as some of those seen at Abu Ghraib, had been approved for
one detainee at Guantanamo Bay and found their way to Iraq. Still others have
been linked to official Pentagon guidance on specific techniques, such as the
use of dogs.

Two Army soldiers with the 3rd Armored Cavalry Regiment in Fort Carson, Colo.,
are charged with killing Mowhoush with the sleeping-bag technique, and his death
has been the subject of partially open court proceedings at the base in Colorado
Springs. Two other soldiers alleged to have participated face potential
nonjudicial punishment. Some details of the incident have been released and were
previously reported. But an examination of numerous classified documents
gathered during the criminal investigation into Mowhoush's death, and interviews
with Defense Department officials and current and former intelligence officials,
present a fuller picture of what happened and outline the role played in his
interrogation by the CIA, its Iraqi paramilitaries and Special Forces soldiers.

Determining the details of the general's demise has been difficult because the
circumstances are listed as "classified" on his official autopsy, court records
have been censored to hide the CIA's involvement in his questioning, and
reporters have been removed from a Fort Carson courtroom when testimony relating
to the CIA has surfaced.

Despite Army investigators' concerns that the CIA and Special Forces soldiers
also were involved in serious abuse leading up to Mowhoush's death, the
investigators reported they did not have the authority to fully look into their
actions. The CIA inspector general's office has launched an investigation of at
least one CIA operative who identified himself to soldiers only as "Brian." The
CIA declined to comment on the matter, as did an Army spokesman, citing the
ongoing criminal cases.

Although Mowhoush's death certificate lists his cause of death as "asphyxia due
to smothering and chest compression," the Dec. 2, 2003, autopsy, quoted in
classified documents and released with redactions, showed that Mowhoush had
"contusions and abrasions with pattern impressions" over much of his body, and
six fractured ribs. Investigators believed a "long straight-edge instrument" was
used on Mowhoush, as well as an "object like the end of an M-16" rifle.

"Although the investigation indicates the death was directly related to the non-
standard interrogation methods employed on 26 NOV, the circumstances surrounding
the death are further complicated due to Mowhoush being interrogated and
reportedly beaten by members of a Special Forces team and other government
agency (OGA) employees two days earlier," said a secret Army memo dated May 10,
2004.

The Walk-In

Hours after Mowhoush's death in U.S. custody on Nov. 26, 2003, military
officials issued a news release stating that the prisoner had died of natural
causes after complaining of feeling sick. Army psychological-operations officers
quickly distributed leaflets designed to convince locals that the general had
cooperated and outed key insurgents.

The U.S. military initially told reporters that Mowhoush had been captured
during a raid. In reality, he had walked into the Forward Operating Base "Tiger"
in Qaim on Nov. 10, 2003, hoping to speak with U.S. commanders to secure the
release of his sons, who had been arrested in raids 11 days earlier.

Officials were excited about Mowhoush's appearance.

The general, they believed, had been a high-ranking official in Saddam Hussein's
Republican Guard and a key supporter of the insurgency in northwestern Iraq.
Mowhoush was one of a few generals whom Hussein had given "execution authority,"
U.S. commanders believed, meaning that he could execute someone on sight, and he
had been notorious among Shiites in southern Iraq for brutality.

Mowhoush had been visited by Hussein at his home in Sadah in October 2003 "to
discuss, among other undisclosed issues, a bounty of US$10,000 to anyone who
video-taped themselves attacking coalition forces," according to a Defense
Intelligence Agency report.

Military intelligence also believed that Mowhoush was behind several attacks in
the Qaim area.

After being taken into custody, Mowhoush was housed in an isolated area of the
Qaim base within miles of the Syrian border, according to a situation summary
prepared by interrogators.

The heavyset and imposing man was moderately cooperative in his first days of
detention. He told interrogators that he was the commander of the al Quds Golden
Division, an organization of trusted loyalists fueling the insurgency with
mortars, rocket-propelled grenades, sniper rifles, machine guns and other small
arms.

In the months before Mowhoush's detention, military intelligence officials
across Iraq had been discussing interrogation tactics, expressing a desire to
ramp things up and expand their allowed techniques to include more severe
methods, such as beatings that did not leave permanent damage, and exploiting
detainees' fear of dogs and snakes, according to documents released by the Army.

Officials in Baghdad wrote an e-mail to interrogators in the field on Aug. 14,
2003, stating that the "gloves are coming off" and asking them to develop "wish
lists" of tactics they would like to use.

An interrogator with the 66th Military Intelligence Company, who was assigned to
work on Mowhoush, wrote back with suggestions in August, including the use of
"close confinement quarters," sleep deprivation and using the fear of dogs,
adding: "I firmly agree that the gloves need to come off."

Another e-mail exchange from interrogators with the 4th Infantry Division based
in Tikrit also suggested "close quarter confinement" in extremely claustrophobic
situations, because "discomfort induces compliance and cooperation."

Taking the Gloves Off

A week into Mowhoush's detainment, according to classified investigative
documents, interrogators were getting fed up with the prisoner. In a "current
situation summary" PowerPoint presentation dated Nov. 18, Army officials wrote
about his intransigence, using his first name (spelled "Abid" in Army
documents):

"Previous interrogations were non-threatening; Abid was being treated very well.
Not anymore," the document reads. "The interrogation session lasted several
hours and I took the gloves off because Abid refused to play ball."

But the harsher tactics backfired.

In an interrogation that could be witnessed by the entire detainee population,
Mowhoush was put into an undescribed "stress position" that caused the other
detainees to stand "with heads bowed and solemn looks on their faces," said the
document.

"I asked Abid if he was strong enough a leader to put an end to the attacks that
I believed he was behind," the document said, quoting an unidentified
interrogator. "He did not deny he was behind the attacks as he had denied
previously, he simply said because I had humiliated him, he would not be able to
stop the attacks. I take this as an admission of guilt."

Three days later, on Nov. 21, 2003, Mowhoush was moved from the border base at
Qaim to a makeshift detention facility about six miles away in the Iraqi desert,
a prison fashioned out of an old train depot, according to court testimony and
investigative documents. Soldiers with the 3rd Armored Cavalry Regiment and the
101st Airborne Division were running a series of massive raids called Operation
Rifles Blitz, and the temporary holding facility, nicknamed Blacksmith Hotel,
was designed to hold the quarry.

U.S. troops searched more than 8,000 homes in three cities, netting 350
detainees, according to court testimony. Even though Mowhoush was not arrested
during the raids, he was moved to Blacksmith Hotel, where teams of Army Special
Forces soldiers and the CIA were conducting interrogations.

At Blacksmith, according to military sources, there was a tiered system of
interrogations. Army interrogators were the first level.

When Army efforts produced nothing useful, detainees would be handed over to
members of Operational Detachment Alpha 531, soldiers with the 5th Special
Forces Group, the CIA or a combination of the three. "The personnel were dressed
in civilian clothes and wore balaclavas to hide their identity," according to a
Jan. 18, 2004, report for the commander of the 82nd Airborne Division.

If they did not get what they wanted, the interrogators would deliver the
detainees to a small team of the CIA-sponsored Iraqi paramilitary squads, code-
named Scorpions, according to a military source familiar with the operation. The
Jan. 18 memo indicates that it was "likely that indigenous personnel in the
employ of the CIA interrogated MG Mowhoush."

Sometimes, soldiers and intelligence officers used the mere existence of the
paramilitary unit as a threat to induce detainees to talk, one Army soldier said
in an interview. "Detainees knew that if they went to those people, bad things
would happen," the soldier said. "It was used as a motivator to get them to
talk. They didn't want to go with the masked men."

The Scorpions went by nicknames such as Alligator and Cobra. They were set up by
the CIA before the war to conduct light sabotage. After the fall of Baghdad,
they worked with their CIA handlers to infiltrate the insurgency and as
interpreters, according to military investigative documents, defense officials,
and former and current intelligence officials.

Soon after Mowhoush's detention began, soldiers in charge of him "reached a
collective decision that they would try using the [redacted] who would, you
know, obviously spoke the local, native Iraqi Arabic as a means of trying to
shake Mowhoush up, and that the other thing that they were going to try to do
was put a bunch of people in the room, a tactic that Mr. [redacted] called 'fear
up,' " Army Special Agent Curtis Ryan, who investigated the case, testified,
according to a transcript.

Classified e-mail messages and reports show that "Brian," a Special Forces
retiree, worked as a CIA operative with the Scorpions.

On Nov. 24, the CIA and one of its four-man Scorpion units interrogated
Mowhoush, according to investigative records.

"OGA Brian and the four indig were interrogating an unknown detainee," according
to a classified memo, using the slang "other government agency" for the CIA and
"indig" for indigenous Iraqis.

"When he didn't answer or provided an answer that they didn't like, at first
[redacted] would slap Mowhoush, and then after a few slaps, it turned into
punches," Ryan testified. "And then from punches, it turned into [redacted]
using a piece of hose."

"The indig were hitting the detainee with fists, a club and a length of rubber
hose," according to classified investigative records.

Soldiers heard Mowhoush "being beaten with a hard object" and heard him
"screaming" from down the hall, according to the Jan. 18, 2004, provost
marshal's report. The report said four Army guards had to carry Mowhoush back to
his cell.

Two days later, at 8 a.m., Nov. 26, Mowhoush -- prisoner No. 76 -- was brought,
moaning and breathing hard, to Interrogation Room 6, according to court
testimony.

Chief Warrant Officer Lewis E. Welshofer Jr. did a first round of interrogations
for 30 minutes, taking a 15-minute break and resuming at 8:45. According to
court testimony, Welshofer and Spec. Jerry L. Loper, a mechanic assuming the
role of guard, put Mowhoush into the sleeping bag and wrapped the bag in
electrical wire.

Welshofer allegedly crouched over Mowhoush's chest to talk to him.

Sgt. 1st Class William Sommer, a linguist, stood nearby.

Chief Warrant Officer Jeff Williams, an intelligence analyst, came to observe
progress.

Investigative records show that Mowhoush "becomes unresponsive" at 9:06 a.m.
Medics tried to resuscitate him for 30 minutes before pronouncing him dead.

In a preliminary court hearing in March for Williams, Loper and Sommer, retired
Chief Warrant Officer Richard Manwaring, an interrogator who worked with
Welshofer in Iraq, testified that using the sleeping bag and putting detainees
in a wall locker and banging on it were "appropriate" techniques that he himself
used to frighten detainees and make them tense.

Col. David A. Teeples, who then commanded the 3rd Armored Cavalry Regiment, told
the court he believed the "claustrophobic technique" was both approved and
effective. It was used before, and for some time after, Mowhoush's death,
according to sources familiar with the interrogation operation.

"My thought was that the death of Mowhoush was brought about by [redacted] and
then it was unfortunate and accidental, what had happened under an interrogation
by our people," Teeples said in court, according to a transcript.

The CIA has tried hard to conceal the existence of the Scorpions. CIA
classification officials have monitored pretrial hearings in the case and have
urged the court to close much of the hearing on national security grounds.
Redacted transcripts were released only after lawyers for the Denver Post
challenged the rulings.

Autopsy Shields CIA

The Armed Forces Institute of Pathology's standard "Autopsy Examination Report"
of Mowhoush's death was manipulated to avoid references to the CIA. In contrast
to the other autopsy reports of suspicious detainee deaths released by the Army,
Mowhoush's name is redacted and under "Circumstances of Death," the form says:
"This Iraqi [redacted] died while in U.S. custody. The details surrounding the
circumstances at the time of death are classified."

Williams was arraigned yesterday on a murder charge and is scheduled for court-
martial in November, a Fort Carson spokeswoman said. Welshofer's court-martial
is set for October. Loper and Sommer have not been referred for trial.
Commanders are still considering what, if any, punishment to impose.

Frank Spinner, an attorney for Welshofer, said his client is going to fight the
murder charge. Reading from a statement prepared by Welshofer during his Article
32 hearing this spring, Spinner quoted his client as saying that he is proud of
the job he did and that his efforts saved U.S. soldiers' lives. "I did not
torture anyone," Spinner quoted him as saying.

William Cassara, who represents Williams, cited Mowhoush's brutal encounters in
the days before he died as possibly leading to his death. He said Williams, who
was not trained in interrogation tactics, had little to do with the case.

"The interrogation techniques were known and were approved of by the upper
echelons of command of the 3rd ACR," Cassara said in a news conference. "They
believed, and still do, that they were appropriate and proper."

[ Staff writer Dana Priest contributed to this report. ]

*


Boston Globe --

August 2, 2005
US JUDGE EYES MOVING 2 GUANTANAMO DETAINEES
Could order them brought to him
By Charles Savage

http://www.boston.com/news/nation/washington/articles/2005/08/02/us_judge_eyes_m
oving_2_guantanamo_detainees/

WASHINGTON -- A federal judge yesterday said that he may order the Bush
administration to bring two cleared but stranded Guantanamo Bay detainees to his
courtroom in the nation's capital, an extraordinary proposal that could enable
the men to leave the tight restrictions of the military prison in Cuba.

Alternatively, District Judge James Robertson said yesterday that he is
considering an order that would force the government to move them into a special
facility for migrants on the Navy base, where the US houses intercepted rafters
from Cuba and Haiti who have applied for asylum.

Though he's unlikely to decide for several weeks, Robertson could become the
first federal judge to order the military to discharge a detainee from the
prison, an unprecedented event at Guantanamo. The Supreme Court ruled last year
that detainees can sue the government to challenge their designation as "enemy
combatants," but all cases have been stalled until an appeals court decides how
to handle them.

But the detainees before Robertson -- Abu Bakker Qassim, 36, and A'del Abdu Al-
Hakim, 31, both Muslims and ethnic Uighurs from China -- are different from the
other 500 Guantanamo prisoners. A military tribunal has found the men were in
the wrong place at the wrong time and ordered them released. But the men are
languishing at the prison because the United States cannot send them back to
China, which has a history of persecuting Muslims, and no other country will
take them.

Sabin Willett, a Boston-based lawyer who volunteered to aid the men, asked
Robertson to allow his clients to move from the prison to the civilian portion
of Guantanamo, a vast Navy base that has housing for some 8,000 troops and their
families as well as restaurants and a shopping center. Willett also suggested
the men could be released under supervision into the small community of American
Uighurs.

In any case, he argued, the US government has no legal justification to continue
their detention because the military itself acknowledged that they are not
combatants.

"They are not soldiers. They are not criminals. They are just Uighur people,"
Willett said. "There might not be a more pro-US Muslim group in the world
because the Uighurs have traditionally suffered under the oppression of the
Communist Chinese. I can remember a time when we liked people like that."

The military, however, insists it must keep them in custody for "safety and
security" reasons.

Robertson said housing the cleared detainees in barracks among off-duty soldiers
is "a nonstarter," but he said he was intrigued by the idea of treating them
like migrants on the base, housing them where they would have more freedom but
remain under supervision.

Terry Henry, a Justice Department lawyer, said the Bush administration is
working to find a country willing to take the men, but their status is similar
to a situation at the end of World War II, where some prisoners of war had to
stay in prison camps for several years because of complications with
repatriating them.

"The executive power to make war includes the power to hold enemy combatants and
suspected enemy combatants," he said. "That includes the authority to wind up
that detention in an orderly fashion."

But Robertson there was a key difference: Unlike the Uighurs, the German POWs
had fought against US forces.

Willett also asked the judge to grant his clients the right to use a telephone
so they could talk to their families and so he could communicate with them
without traveling to Cuba. Henry balked, saying other lawyers would demand the
same privilege.

But Robertson said that the problem would be solved if he had the Uighurs
brought to Washington, invoking a power of judges to order the state to produce
a prisoner in their courtrooms and justify their incarceration.

When he first visited his clients last month, Willett learned that the military
had ruled the men weren't combatants. He told the judge that the Bush
administration never informed him and had implied in court papers that the
detainees were ordinary enemy combatants.

Willett said Qassim and Hakim both left home before the attacks of Sept. 11,
2001, fleeing persecution in China. Pakistani police subsequently arrested them
and turned them over to the US military as Al Qaeda suspects -- apparently in
exchange for $5,000 bounties. The US transferred the men to Guantanamo.

The Boston Globe first wrote about their case last week. After it was published,
Willett said, Hakim's sister, who is now living in Sweden, called him in tears.

"A'del's sister told us she thought her brother was dead," Willett said. "She
was right; these prisoners are dead to the outside world."

In a related development, several news organizations reported yesterday that
they had been given e-mails written last year by two military prosecutors who
were involved in planning for war crimes trials of Guantanamo detainees before a
military commission.

The prosecutors alleged that the trials had been rigged against defendants by
picking commission members who were certain to convict and by planning to
withhold evidence, for security reasons, that might help the detainees. But the
chief prosecutor called the criticisms false, and a military review backed his
decision.

The American Civil Liberties Union, a critic of the military trial system, said
the e-mails show the system is flawed.

"Clearly the concerns raised by these two confirm what we've been saying from
the beginning: [The Pentagon] rigged the system to render the result the Bush
administration wants," Anthony D. Romero, executive director of the ACLU, told
the Associated Press.

*

Boston Globe --

July 26, 2005
PUT CLEARED DETAINEES IN A HOTEL, LAWYER SAYS
Fears of repression keep them on base
By Charlie Savage

http://www.boston.com/news/nation/washington/articles/2005/07/26/put_cleared_det
ainees_in_a_hotel_lawyer_says/

WASHINGTON -- In small bunkhouses surrounded by green fences at Guantanamo Bay,
16 Chinese and Uzbek Muslim men are approaching their fourth anniversary as
prisoners of America. They live like convicted criminals: confined to small
spaces far from their families and watched by guards.

But these 16 men are different from the other 510 prisoners at Guantanamo.
Months ago, a military tribunal looked at the evidence and decided that they
were not "enemy combatants." They had just been in the wrong place at the wrong
time. Yet despite clearing them of terrorist suspicions, the US government
continues to keep them locked up in its prison.

The prisoners are stuck in limbo because the United States fears the governments
of China and Uzbekistan, which have a history of repressing Muslims, would kill
them if they were sent home, but no other country wants them.

Now, a Boston-based lawyer who is representing two of the Chinese Uighurs, as
their ethnic group is called, has come up with a startling proposal: move them
out of the prison and into a hotel.

In court papers declassified Friday, Attorney Sabin Willett asked a federal
judge to force the military to let his clients live among civilians and off-duty
soldiers on the vast military base, where they could move about freely in
unrestricted areas and have access to such luxuries as a shopping center, a
movie theater, and a McDonald's.

"Just because there is not yet a country to which the petitioners may be sent
does not mean that the only option is to incarcerate them indefinitely," Willett
wrote. "They were brought to Cuba by the United States government against their
will. There is vastly more to the Guantanamo Bay Naval Station than a prison,
and even if petitioners' stay must be prolonged for some period of time, there
is no reason to prolong their imprisonment there."

So far, the Pentagon has not shown any sign that it would be willing to allow
the detainees to live on the base. In addition to the 15 Uighurs and one Uzbek
who were cleared of being enemy combatants, there are two more stranded Uzbeks
who were deemed eligible for release because they no longer pose a threat.

Army Major Jeff Weir, a spokesman for the prison, said in a phone interview that
"safety and security" concerns would prevent moving the detainees out of the
secure zone and into the regular part of the base, where about 8,000 soldiers,
sailors, and civilians live, many with their families.

"They have been detained in here with some very bad people, under some very bad
influences," Weir said. "We can't just release them into a hotel amongst the
civilians on the base. . . . We understand the point of what the lawyers are
saying, but it's an impossibility."

A Pentagon spokesman, Lieutenant Commander Alvin Plexico, said the government
would respond to the request in court. He also noted that the military has tried
to separate the stranded detainees from the rest of the inmate population,
housing them in communal bunkhouses with "shared living and dining areas and
unlimited recreation time."

But Willett, the lawyer for two of the Uighurs, said it's still jail. And, he
told the court, "the government itself . . . has acknowledged that there is no
lawful basis to imprison" his clients: Abu Bakker Qassim, 36, and A'del Abdu Al-
Hakim, 31.

Both men, he said, have wives and children back in their Uighur homeland in
China. Both told him they left their homes, fleeing Communist oppression, before
the attacks of Sept. 11, 2001, and met at a market in Kyrgystan.

They eventually moved on, hoping to find a way to Turkey, where they planned to
start a new life and send for their families. But they were arrested by
Pakistani police in late 2001 and turned over to the United States as suspected
Al Qaeda members, apparently in return for $5,000 bounties, he said. The United
States brought them to Guantanamo in mid-2002.

Weir, the prison spokesman, argued that even though the detainees were found by
the military tribunal not to have been part of Al Qaeda, they could be dangerous
for other reasons. Tribunal transcripts show that some Uighurs received weapons
training in Afghanistan to fight the Chinese government, though they testified
that they bore no ill will toward the United States.

Willett, who visited his clients this month, said he saw nothing "that would
indicate the remotest interest in terrorism." America has locked them up without
justification for more than three years, he said, and putting them up at a hotel
now that the country knows it made a mistake is the least it could do.

Willett, a bankruptcy specialist, is among dozens of lawyers who have taken on
Guantanamo detainees at their own expense since June 2004, when the Supreme
Court ruled that the prisoners were entitled to challenge their designation as
enemy combatants.

Those lawsuits are all frozen while an appeals court decides whether the
military's tribunals -- in which detainees had no legal representation and were
not shown all the evidence against them -- were sufficient to satisfy the
Supreme Court's ruling.

But last week, Willett asked a judge to rule immediately on moving his clients
into a hotel. Ultimately, Willett said, if no other country will take them in,
the United States should grant them asylum as refugees from religious
persecution, though he has not made a formal request.

"Everybody can understand how a mistake might be made in the fog of war to begin
with," he said. "It'd be a great thing if the executive could reach out and show
the good grace to try to correct such a mistake. I'm hopeful that might happen."

* * *