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NEWS DIGEST 2006.01.01 - 2006.02.28
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New York Times --

February 28, 2006

TORTURED LOGIC

By Anthony Lagouranis

http://www.nytimes.com/2006/02/28/opinion/28lagouranis.html

Chicago

I HAVE never met Sgt. Santos Cardona or Sgt. Michael Smith, but we share similar
experiences. In late 2003 and early 2004, both men used their dogs to intimidate
Iraqi prisoners during interrogations at Abu Ghraib prison. They maintain that
they were following legal orders. Now they both face impending court-martial.

From January 2004 to January 2005, I served in various places in Iraq (including
Abu Ghraib) as an Army interrogator. Following orders that I believed were
legal, I used military working dogs during interrogations. I terrified my
interrogation subjects, but I never got intelligence (mostly because 90 percent
of them were probably innocent, but that's another story). Perhaps, I have
thought for a long time, I also deserve to be prosecuted. But if that is the
case, culpability goes much farther up the chain of command than the Army and
the Bush administration have so far been willing to admit.

When the chief warrant officer at our interrogation site in Mosul first told me
to use dogs during interrogations, it seemed well within what was allowed by our
written rules and consistent with what was being done at Abu Ghraib and other
detention centers. The dogs were muzzled and held by a handler. The prisoners
didn't know that, though, because they were blindfolded; if they gave me an
answer I didn't like, I could cue the handler so the dog would bark and lunge
toward them. Sometimes they were so terrified they'd wet their jumpsuits. About
halfway through my tour, I stopped using dogs and other "enhancements" like
hypothermia that qualify as torture even under the most nonchalant readings of
international law. I couldn't handle being so routinely brutal.

In training, we learned that all P.O.W.'s are protected against actual and
implied threats. You can never put a "knife on the table" to get someone to
talk. That was clear. But our Iraqi prisoners weren't clearly classified as
P.O.W.'s, so I never knew what laws applied. Instead, a confusing set of verbal
and written orders had supplanted the Geneva Conventions.

When an Army investigator asked Col. Thomas Pappas, the top military
intelligence officer at Abu Ghraib, how intimidation with dogs could be allowed
under this treaty, he gave the chilling reply, "I did not personally look at
that with regard to the Geneva Convention." Colonel Pappas later testified that
he was taking his cue on the use of dogs from Maj. Gen. Geoffrey Miller, who
took over detainee operations in Iraq after running them in Guantánamo Bay,
Cuba.

General Miller has denied recommending the use of guard dogs to intimidate
prisoners during interrogations in Iraq. He also recently said he would not
testify in the courts-martial of Sergeants Cardona and Smith, invoking his right
to avoid self-incrimination. As someone who voluntarily spoke at length about my
actions in Iraq to investigators, without a lawyer present, I can't have a
favorable opinion of General Miller. By doing the military equivalent of "taking
the Fifth," he's decided to protect himself, apparently happy to let two dog
handlers take the fall -- a stunning betrayal of his subordinates and Army
values.

Sergeants Cardona and Smith have been accused of sick and sadistic behavior.
They face the prospect of serious jail time. But they almost certainly acted
believing they were following legal orders. In the military, orders are orders
unless there is clear, uncluttered law transmitted from far above our
commanders' rank and station. Instead of a clear message prohibiting torture,
our top commanders gave us a deliberate muddying of the waters.

Senator John McCain, Republican of Arizona, recently shepherded a ban on torture
through Congress. Then, while reluctantly signing the legislation, President
Bush muddled this very clear ban on torture by stating that he would construe it
"in a manner consistent with the constitutional authority of the president."

Those who serve in the prisons of Iraq deserve to know clearly the difference
between legal and illegal orders. Soldiers on the ground need a commander in
chief who does not seek strained legalisms that "permit" the use of torture. The
McCain amendment, prohibiting "cruel, inhuman, or degrading" treatment in all
instances, is an accurate reflection of the true values of the military and
American society. We should adhere to it strictly and in all cases. I know, from
personal experience, that any leeway given will be used to maximum effect
against detainees. No slope is more slippery, I learned in Iraq, than the one
that leads to torture.

[ Anthony Lagouranis served in the Army from May 2001 to July 2005. ]



February 26, 2006

AMERICAN GULAG

Torture, force-feeding and darkness at noon --
this is Guantanamo, a lawyer for prisoners says.

By Thomas Wilner

http://www.latimes.com/news/opinion/commentary/la-op-
wilner26feb26,0,1383538.story

THE AMERICAN PRISON CAMP at Guantanamo Bay is on the southeast corner of Cuba, a
sliver of land the United States has occupied since 1903. Long ago, it was
irrigated from lakes on the other side of the island, but Cuban President Fidel
Castro cut off the water supply years ago. So today, Guantanamo produces its own
water from a 30-year-old desalination plant. The water has a distinct yellow
tint. All Americans drink bottled water imported by the planeload. Until
recently, prisoners drank the yellow water.

The prison overlooks the sea, but the ocean cannot be seen by prisoners. Guard
towers and stadium lights loom along the perimeter. On my last visit, we were
escorted by young, solemn military guards whose nameplates on their shirts were
taped over so that prisoners could not identify them.

Very few outsiders are allowed to see the prisoners. The government has
orchestrated some carefully controlled tours for the media and members of
Congress, but has repeatedly refused to allow these visitors, representatives of
the United Nations, human rights groups or nonmilitary doctors and psychiatrists
to meet or speak with prisoners. So far, the only outsiders who have done so are
representatives of the International Committee of the Red Cross -- who are
prohibited by their own rules from disclosing what they find -- and lawyers for
the prisoners.

I am one of those lawyers. I represent six Kuwaiti prisoners, each of whom has
now spent nearly four years at Guantanamo. It took me 2 1/2 years to gain access
to my clients, but now I have visited the prison camp 11 times in the last 14
months. What I have witnessed is a cruel and eerie netherworld of concrete and
barbed wire that has become a daily nightmare for the nearly 500 people swept up
after 9/11 who have been imprisoned without charges or trial for more than four
years. It is truly our American gulag.

On my most recent trip three weeks ago, after signing a log sheet and submitting
our bags to a search, my colleagues and I were taken through two tall, steel-
mesh gates into the interior of the prison camp.

We interviewed our clients in Camp Echo, one of several camps where prisoners
are interrogated. We entered a room about 13 feet square and divided in half by
a wall of thick steel mesh. On one side was a table where the prisoner would sit
for our interviews, his feet shackled to a steel eyelet cemented to the floor.
On the other side were a shower and a cell just like the ones in which prisoners
are ordinarily confined. In their cells, prisoners sleep on a metal shelf
against the wall, which is flanked by a toilet and sink. They are allowed a thin
foam mattress and a gray cotton blanket.

The Pentagon's files on the six Kuwaiti prisoners we represent reveal that none
was captured on a battlefield or accused of engaging in hostilities against the
U.S. The prisoners claim that they were taken into custody by Pakistani and
Afghan warlords and turned over to the U.S. for bounties ranging from $5,000 to
$25,000 -- a claim confirmed by American news reports. We have obtained copies
of bounty leaflets distributed in Afghanistan and Pakistan by U.S. forces
promising rewards -- "enough to feed your family for life" -- for any "Arab
terrorist" handed over.

The files include only the flimsiest accusations or hearsay that would never
stand up in court. The file on one prisoner indicated that he had been seen
talking to two suspected Al Qaeda members on the same day -- at places thousands
of miles apart. The primary "evidence" against another was that he was captured
wearing a particular Casio watch, "which many terrorists wear." Oddly, the same
watch was being worn by the U.S. military chaplain, a Muslim, at Guantanamo.

When I first met my clients, they had not seen or spoken with their families for
more than three years, and they had been questioned hundreds of times. Several
were suspicious of us; they told me that they had been interrogated by people
who claimed to be their lawyers but who turned out not to be. So we had DVDs
made, on which members of their families told them who we were and that we could
be trusted. Several cried on seeing their families for the first time in years.
One had become a father since he was detained and had never before seen his
child. One noticed his father was not on the DVD, and we had to tell him that
his father had died.

Most prisoners are kept apart, although some can communicate through the steel
mesh or concrete walls that separate their cells. They exercise alone, some only
at night. They had not seen sunlight for months -- an especially cruel tactic in
a tropical climate. One prisoner told me, "I have spent almost every moment of
the last three years, and eaten every meal, here in this small cell which is my
bathroom." Other than the Koran, prisoners had nothing to read. As a result of
our protests, some have been given books.

Every prisoner I've interviewed claims to have been badly beaten and subjected
to treatment that only could be called torture, by Americans, from the first day
of U.S. captivity in Pakistan and Afghanistan. They said they were hung by their
wrists and beaten, hung by their ankles and beaten, stripped naked and paraded
before female guards, and given electric shocks. At least three claimed to have
been beaten again upon arrival in Guantanamo. One of my clients, Fayiz Al
Kandari, now 27, said his ribs were broken during an interrogation in Pakistan.
I felt the indentation in his ribs. "Beat me all you want, just give me a
hearing," he said he told his interrogators.

Another prisoner, Fawzi Al Odah, 25, is a teacher who left Kuwait City in 2001
to work in Afghan, then Pakistani, schools. After 9/11, he and four other
Kuwaitis were invited to dinner by a Pakistani tribal leader and then sold by
him into captivity, according to their accounts, later confirmed by Newsweek and
ABC News.

On Aug. 8, 2005, Fawzi, in desperation, went on a hunger strike to assert his
innocence and to protest being imprisoned for four years without charges. He
said he wanted to defend himself against any accusations, or die. He told me
that he had heard U.S. congressmen had returned from tours of Guantanamo saying
that it was a Caribbean resort with great food. "If I eat, I condone these
lies," Fawzi said.

At the end of August, after Fawzi fainted in his cell, guards began to force-
feed him through tubes pushed up his nose into his stomach. At first, the tubes
were inserted for each feeding and then removed afterward. Fawzi told me that
this was very painful. When he tried to pull out the tubes, he was strapped onto
a stretcher with his head held by many guards, which was even more painful.

By mid-September, the force-feeding had been made more humane. Feeding tubes
were left in and the formula pumped in. Still, when I saw Fawzi, a tube was
protruding from his nose. Drops of blood dripped as we talked. He dabbed at it
with a napkin.

We asked for Fawzi's medical records so we could monitor his weight and his
health. Denied. The only way we could learn how Fawzi was doing was to visit him
each month, which we did. When we visited him in November, his weight had
dropped from 140 pounds to 98 pounds. Specialists in enteral feeding advised us
that the continued drop in his weight and other signs indicated that the feeding
was being conducted incompetently. We asked that Fawzi be transferred to a
hospital. Again, the government refused.

When we saw Fawzi in December, his weight had stabilized at about 110 pounds.
The formulas had been changed, and he was being force-fed by medical personnel
rather than by guards.

When I met with Fawzi three weeks ago, the tubes were out of his nose. I told
him I was thankful that after five months he had ended his hunger strike. He
looked at me sadly and said, "They tortured us to make us stop." At first, he
said, they punished him by taking away his "comfort items" one by one: his
blanket, his towel, his long pants, his shoes. They then put him in isolation.
When this failed to persuade him to end the hunger strike, he said, an officer
came to him Jan. 9 to announce that any detainee who refused to eat would be
forced onto "the chair." The officer warned that recalcitrant prisoners would be
strapped into a steel device that pulled their heads back, and that the tubes
would be forced in and wrenched out for each feeding. "We're going to break this
hunger strike," the officer told him.

Fawzi said he heard the prisoner next door screaming and warning him to give up
the strike. He decided that he wasn't "on strike to be tortured." He said those
who continued on the hunger strike not only were strapped in "the chair" but
were left there for hours; he believes that guards fed them not only nutrients
but also diuretics and laxatives to force them to defecate and urinate on
themselves in the chair.

After less than two weeks of this treatment, the strike was over. Of the more
than 80 strikers at the end of December, Fawzi said only three or four were
holding out. As a result of the strike, however, prisoners are now getting a
meager ration of bottled water.

Fawzi said eating was the only aspect of life at Guantanamo he could control;
forcing him to end the hunger strike stripped him of his last means of
protesting his unjust imprisonment. Now, he said, he feels "hopeless."

The government continues to deny that there is any injustice at Guantanamo. But
I know the truth.

[ Thomas Wilner is a partner at Shearman & Sterling, which has been representing
Kuwaiti prisoners in Guantanamo since early 2002. ]

*


New York Times --

February 26, 2006

A GROWING AFGHAN PRISON RIVALS BLEAK GUANTANAMO

By Tim Golden and Eric Schmitt

http://www.nytimes.com/2006/02/26/international/26bagram.html

While an international debate rages over the future of the American detention
center at Guantanamo Bay, Cuba, the military has quietly expanded another, less-
visible prison in Afghanistan, where it now holds some 500 terror suspects in
more primitive conditions, indefinitely and without charges.

Pentagon officials have often described the detention site at Bagram, a
cavernous former machine shop on an American air base 40 miles north of Kabul,
as a screening center. They said most of the detainees were Afghans who might
eventually be released under an amnesty program or transferred to an Afghan
prison that is to be built with American aid.

But some of the detainees have already been held at Bagram for as long as two or
three years. And unlike those at Guantanamo, they have no access to lawyers, no
right to hear the allegations against them and only rudimentary reviews of their
status as "enemy combatants," military officials said.

Privately, some administration officials acknowledge that the situation at
Bagram has increasingly come to resemble the legal void that led to a landmark
Supreme Court ruling in June 2004 affirming the right of prisoners at Guantanamo
to challenge their detention in United States courts.

While Guantanamo offers carefully scripted tours for members of Congress and
journalists, Bagram has operated in rigorous secrecy since it opened in 2002. It
bars outside visitors except for the International Red Cross and refuses to make
public the names of those held there. The prison may not be photographed, even
from a distance.

From the accounts of former detainees, military officials and soldiers who
served there, a picture emerges of a place that is in many ways rougher and more
bleak than its counterpart in Cuba. Men are held by the dozen in large wire
cages, the detainees and military sources said, sleeping on the floor on foam
mats and, until about a year ago, often using plastic buckets for latrines.
Before recent renovations, they rarely saw daylight except for brief visits to a
small exercise yard.

"Bagram was never meant to be a long-term facility, and now it's a long-term
facility without the money or resources," said one Defense Department official
who has toured the detention center. Comparing the prison with Guantanamo, the
official added, "Anyone who has been to Bagram would tell you it's worse."

Former detainees said the renovations had improved conditions somewhat, and
human rights groups said reports of abuse had steadily declined there since
2003. Nonetheless, the Pentagon's chief adviser on detainee issues, Charles D.
Stimson, declined to be interviewed on Bagram, as did senior detention officials
at the United States Central Command, which oversees military operations in
Afghanistan.

The military's chief spokesman in Afghanistan, Col. James R. Yonts, also refused
to discuss detainee conditions, other than to say repeatedly that his command
was "committed to treating detainees humanely, and providing the best possible
living conditions and medical care in accordance with the principles of the
Geneva Convention."

Other military and administration officials said the growing detainee population
at Bagram, which rose from about 100 prisoners at the start of 2004 to as many
as 600 at times last year, according to military figures, was in part the result
of a Bush administration decision to shut off the flow of detainees into
Guantanamo after the Supreme Court ruled that those prisoners had some basic
due-process rights under United States law. The question of whether those same
rights apply to detainees in Bagram has not yet been tested in court.

Until the court ruling, Bagram functioned as a central clearing house for the
global fight against terror. Military and intelligence personnel there sifted
through captured Afghan rebels and suspected terrorists seized in Afghanistan,
Pakistan and elsewhere, sending the most valuable and dangerous to Guantanamo
for extensive interrogation, and generally releasing the rest.

But according to interviews with current and former administration officials,
the National Security Council effectively halted the movement of new detainees
into Guantanamo at a cabinet-level meeting at the White House on Sept. 14, 2004.

Wary of further angering Guantanamo's critics, the council authorized a final
shipment of 10 detainees eight days later from Bagram, the officials said. But
it also indicated that it wanted to review and approve any Defense Department
proposals for further transfers. Despite repeated requests from military
officials in Afghanistan and one formal recommendation by a Pentagon working
group, no such proposals have been considered, officials said.

"Guantanamo was a lightning rod," said a former senior administration official
who participated in the discussions and who, like many of those interviewed,
would discuss the matter in detail only on the condition of anonymity because of
the secrecy surrounding it. "For some reason, people did not have a problem with
Bagram. It was in Afghanistan."

Yet Bagram's expansion, which was largely fueled by growing numbers of detainees
seized on the battlefield and a bureaucratic backlog in releasing many of the
Afghan prisoners, also underscores the Bush administration's continuing
inability to resolve where and how it will hold more valuable terror suspects.

Military officials with access to intelligence reporting on the subject said
about 40 of Bagram's prisoners were Pakistanis, Arabs and other foreigners, some
of whom were previously held by the C.I.A. in secret interrogation centers in
Afghanistan and other countries. Officials said the intelligence agency had been
reluctant to send some of those prisoners on to Guantanamo because of the
possibility that their C.I.A. custody could eventually be scrutinized in court.

Defense Department officials said the C.I.A.'s effort to unload some detainees
from its so-called black sites had provoked tension among some officials at the
Pentagon, who have frequently objected to taking responsibility for terror
suspects cast off by the intelligence agency. The Defense Department "doesn't
want to be the dumping ground," one senior official familiar with the
interagency debates said. "There just aren't any good options."

A spokesman for the Central Intelligence Agency declined to comment.

Conditions at Bagram

The rising number of detainees at Bagram has been noted periodically by the
military and documented by the International Committee of the Red Cross, which
does not make public other aspects of its findings. But because the military
does not identify the prisoners or release other information on their detention,
it had not previously been clear that some detainees were being held there for
such long periods.

The prison rolls would be even higher, officials noted, were it not for a
Pentagon decision in early 2005 to delegate the authority to release them from
the deputy secretary of defense to the military's Central Command, which
oversees the 19,000 American troops in Afghanistan, and to the ground commander
there.

Since January 2005, military commanders in Afghanistan have released about 350
detainees from Bagram in conjunction with an Afghan national reconciliation
program, officials said. Even so, one Pentagon official said the current average
stay of prisoners at Bagram was 14.5 months.

Officials said most of the current Bagram detainees were captured during
American military operations in Afghanistan, primarily in the country's restive
south, beginning in the spring of 2004.

"We ran a couple of large-scale operations in the spring of 2004, during which
we captured a large number of enemy combatants," said Maj. Gen. Eric T. Olson,
who was the ground commander for American troops in Afghanistan at the time. In
subsequent remarks he added, "Our system for releasing detainees whose
intelligence value turned out to be negligible did not keep pace with the
numbers we were bringing in."

General Olson and other military officials said the growth at Bagram had also
been a consequence of the closing of a smaller detention center at Kandahar and
efforts by the military around the same time to move detainees more quickly out
of "forward operating bases," in the Afghan provinces, where international human
rights groups had cited widespread abuses.

At Bagram, reports of abuses have markedly declined since the violent deaths of
two young Afghan men held there in December 2002, Afghan and foreign human
rights officials said.

After an Army investigation, the practices found to have caused those two deaths
-- the chaining of detainees by the arms to the ceilings of their cells and the
frequent use of knee strikes to the legs of disobedient prisoners by guards --
were halted by early 2003. Other abusive methods, like the use of barking attack
dogs to frighten new prisoners and the handcuffing of detainees to cell doors to
punish them for talking, were phased out more gradually, military officials and
former detainees said.

Human rights officials and former detainees said the living conditions at the
detention center had also improved.

Faced with serious overcrowding in 2004, the military initially built some
temporary prison quarters and began refurbishing the main prison building at
Bagram, a former aircraft-machine shop built by Soviet troops during their
occupation of the country in the 1980's.

Corrals surrounded by stacked razor wire that had served as general-population
cells gave way to less-forbidding wire pens that generally hold no more than 15
detainees, military officials said. The cut-off metal drums used as toilets were
eventually replaced with flush toilets.

Last March, a nine-bed infirmary opened, and months later, a new wing was built.
The expansion brought an improvement in conditions for the more than 250
prisoners who have been housed there, officials said.

Still, even the Afghan villagers released from Bagram over the past year tend to
describe it as a stark, forsaken place.

"It was like a cage," said one former detainee, Hajji Lalai Mama, a 60-year-old
tribal elder from the Spinbaldak district of southern Afghanistan who was
released last June after nearly two years. Referring to a zoo in Pakistan, he
added, "Like the cages in Karachi where they put animals: it was like that."

Guantanamo, which once kept detainees in wire-mesh cages, now houses them in an
elaborate complex of concrete and steel buildings with a hospital, recreation
yards and isolation areas. At Bagram, detainees are stripped on arrival and
given orange uniforms to wear. They wash in collective showers and live under
bright indoor lighting that is dimmed for only a few hours at night.

Abdul Nabi, a 24-year-old mechanic released on Dec. 15 after 9 months, said some
of the detainees frequently protested the conditions, banging on their cages and
sometimes refusing to eat. He added that infractions of the rules were dealt
with unsparingly: hours handcuffed in a smaller cell for minor offenses, and
days in isolation for repeated transgressions.

"We were not allowed to talk very much," he said in an interview.

The Rights of Detainees

The most basic complaint of those released was that they had been wrongly
detained in the first place. In many cases, former prisoners said they had been
denounced by village enemies or arrested by the local police after demanding
bribes they could not pay.

Human rights lawyers generally contend that the Supreme Court decision on
Guantanamo, in the case of Rasul v. Bush, could also apply to detainees at
Bagram. But lawyers working on behalf of the Guantanamo detainees have been
reluctant to take cases from Bagram while the reach of the Supreme Court ruling,
which is now the subject of further litigation, remains uncertain.

As at Guantanamo, the military has instituted procedures at Bagram intended to
ensure that the detainees are in fact enemy combatants. Yet the review boards at
Bagram give fewer rights to the prisoners than those used in Cuba, which have
been criticized by human rights officials as kangaroo courts.

The two sets of panels that review the status of detainees at Guantanamo assign
military advocates to work with the detainees in preparing their cases.
Detainees are allowed to hear and respond to the allegations against them, call
witnesses and request evidence. Only a small fraction of the hundreds of panels
have concluded that the accused should be released.

The Bagram panels, called Enemy Combatant Review Boards, offer no such
guarantees. Reviews are conducted after 90 days and at least annually
thereafter, but detainees are not informed of the accusations against them, have
no advocate and cannot appear before the board, officials said.

"The detainee is not involved at all," one official familiar with the process
said.

An official of the Afghan Independent Human Rights Commission, Shamsullah
Ahmadzai, noted that the Afghan police, prosecutors and the courts were all
limited by law in how long they could hold criminal suspects.

"The Americans are detaining people without any legal procedures," Mr. Ahmadzai
said in an interview in Kabul. "Prisoners do not have the opportunity to
demonstrate their innocence."

Under a diplomatic arrangement reached last year after more than a year of
negotiations, Afghan officials have agreed to take over custody of the roughly
450 Afghan detainees now at Bagram and another 100 Afghans held at Guantanamo
once American-financed contractors refurbish a block of a decrepit former Soviet
jail near Kabul as a high-security prison.

Because of the $10 million prison- construction project and an accompanying
American program to train Afghan prison guards, both of which are to be
completed in about a year, military officials in the region have abandoned any
thought of sending any of the Afghan detainees at Bagram to Guantanamo. Still,
many details of the deal remain uncertain, including when the new prison will be
completed, which Afghan ministry will run it and how the detainees may be
prosecuted in Afghan courts.

Pentagon officials said some part of the Bagram prison would probably continue
to operate, holding the roughly 40 non-Afghan detainees there as well as others
likely to be captured by American or NATO forces in continuing operations.

Prisoner Transfers Stalled

Until now, military officials at both Bagram and Guantanamo have been frustrated
in their efforts to engineer the transfer to Cuba of another group of the most
dangerous and valuable non-Afghan detainees held at Bagram, Pentagon officials
said.

Three officials said commanders at Bagram first proposed moving about a dozen
detainees to Guantanamo in late 2004 and then reiterated the request in early
2005. In an unusual step last spring, the officials added, intelligence
specialists based at Guantanamo traveled to Bagram to assess the need for the
transfer.

But as Central Command officials were forwarding a formal request to the
Pentagon for the transfer of about a dozen high-level detainees, at least one of
them, Omar al-Faruq, a former operative of Al Qaeda in Southeast Asia, escaped
from the Bagram prison with three other men. Mr. Faruq had first been taken to
Bagram by C.I.A. operatives in late summer 2002, but was removed from the prison
about a month later, a soldier who served there said.

Two officials familiar with intelligence reports on the escape said that last
July, after Mr. Faruq had been returned to Bagram by the C.I.A., he and the
other men slipped out of a poorly fenced-in cell and, in the middle of the
night, piled up some boxes and climbed through an open transom over one of the
doors.

In August, weeks after the escape, a Defense Department working group called the
Detainee Assistance Team endorsed the Central Command's recommendation for the
transfer of nine Bagram detainees to Guantanamo, two officials familiar with the
matter said.

Since then, the recommendation has languished in the Pentagon bureaucracy.
Officials said it had apparently been stalled by aides who had declined to
forward it to Secretary of Defense Donald H. Rumsfeld out of concern that any
new transfers to Guantanamo would stoke international criticism.

"Out of sight, out of mind," one of those officials said of the Bagram
detainees.

Carlotta Gall, Ruhullah Khapalwak and Abdul Waheed Wafa contributed reporting
from Afghanistan for this article.

*


New York Times --

February 22, 2006

US CONCEDES TO FORCE-FEEDING DETAINEES

By Eric Schmitt and Tim Golden

http://www.nytimes.com/2006/02/22/international/middleeast/22gitmo.html

WASHINGTON, Feb. 21 -- The military commander responsible for the American
detention center at Guantanamo Bay, Cuba, confirmed Tuesday that officials there
last month turned to more aggressive methods to deter prisoners who were
carrying out long-term hunger strikes to protest their incarceration.

The commander, Gen. Bantz J. Craddock, head of the United States Southern
Command, said soldiers at Guantanamo began strapping some of the detainees into
"restraint chairs" to force-feed them and isolate them from one another after
finding that some were deliberately vomiting or siphoning out the liquid they
had been fed.

"It was causing problems because some of these hard-core guys were getting
worse," General Craddock said at a breakfast meeting with reporters. Explaining
the use of the restraint chairs, he added, "The way around that is you have to
make sure that purging doesn't happen."

After The New York Times reported Feb. 9 that the military had begun using
restraint chairs and other harsh methods, military spokesmen insisted that the
procedures for dealing with the hunger strikes at Guantanamo had not changed.
They also said they could not confirm that the chairs had been used.

On Tuesday, General Craddock said he had reviewed the use of the restraint
chairs, as had senior officials at the Department of Defense, and they concluded
that the practice was "not inhumane." General Craddock left no doubt, however,
that commanders had decided to try to make life less comfortable for the hunger
strikers, and that the measures were seen as successful.

"Pretty soon it wasn't convenient, and they decided it wasn't worth it," he said
of the hunger strikers. "A lot of the detainees said: 'I don't want to put up
with this. This is too much of a hassle.' "

A spokesman for the Southern Command, Lt. Col. James Marshall, said that
restraint chairs had been used in the feeding of 35 of the detainees so far, and
that 3 were still being fed that way. He said the number of prisoners refusing
to eat had fallen from 41 on Dec. 15 -- when the restraint chairs were first
used
on a trial basis -- to 5, according to a military spokesman.

Military officials have said the tough measures were necessary to keep detainees
from dying. But while many of the strikers lost between 15 and 20 percent of
their normal body weight, only a few were thought to be in immediate medical
danger, two officers familiar with the strike said.

Lawyers for the detainees and several human rights groups have assailed the new
methods used against the hunger strikers as inhumane, and as unjustified by the
reported medical condition of the prisoners.

According to newly declassified interview notes, several detainees who had been
on hunger strikes told their lawyers during visits late last month that the
military had begun using harsher methods more widely in the second week of
January. One Yemeni detainee, Emad Hassan, described the chair to lawyers in
interviews on Jan. 24 and 25.

"The head is immobilized by a strap so it can't be moved, their hands are cuffed
to the chair and the legs are shackled," the notes quote Mr. Hassan as saying.
"They ask, 'Are you going to eat or not?' and if not, they insert the tube.
People have been urinating and defecating on themselves in these feedings and
vomiting and bleeding. They ask to be allowed to go to the bathroom, but they
will not let them go. They have sometimes put diapers on them."

Another former hunger striker, Isa al-Murbati of Bahrain, described a similar
experience to his lawyer, Joshua Colangelo-Bryan, in an interview on Jan. 28.

On Jan. 10, he said, a lieutenant came to his isolation cell and told him that
if he did not agree to eat solid food, he would be strapped into the chair and
force-fed. After he refused to comply, he said, soldiers picked him up by the
throat, threw him to the floor and strapped him to the restraint chair.

Like Mr. Hassan, Mr. Murbati said he had been fed two large bags of liquid
formula, which were forced into his stomach very quickly. "He felt pain like a
'knife in the stomach' " Mr. Colangelo-Bryan said.

Detainees said the Guantanamo medical staff also began inserting and removing
the long plastic feeding tubes that were threaded through the detainees' nasal
passages and into their stomachs at every feeding, a practice that caused sharp
pain and frequent bleeding, they said. Until then, doctors there said, they had
been allowing the hunger strikers to leave their feeding tubes in, to reduce
discomfort.

Military spokesmen have generally discounted the complaints, saying the
prisoners are for the most part terrorists, trained by Al Qaeda to use false
stories as propaganda.

In a letter to a British physician and human rights activist, Dr. David J.
Nicholl, on Dec. 12, the former chief medical officer at Guantanamo, Capt. John
S. Edmondson of the Navy, wrote that his staff was not force-feeding any
detainees but "providing nutritional supplementation on a voluntary basis to
detainees who wish to protest their confinement by not taking oral nourishment."

General Craddock suggested that the medical staff had indulged the hunger
strikers to the point that they had been allowed to choose the color of their
feeding tubes.

Two other Defense Department officials said a decision had been made to try to
break the hunger strikes because they were having a disruptive effect and
causing stress for the medical staff.

That effort was stepped up, one official said, in January, when Captain
Edmondson left Guantanamo for a new post after receiving a Legion of Merit Medal
for "inspiring leadership and exemplary performance."

[ Eric Schmitt reported from Washington for this article, and Tim Golden from
New York. ]

*


The New Yorker --

February 20, 2006 (Issue of 2006-02-27)

THE MEMO

How an internal effort to ban the abuse and torture of detainees was thwarted.

by Jane Mayer

One night this January, in a ceremony at the Officers' Club at Fort Myer, in
Arlington, Virginia, which sits on a hill with a commanding view across the
Potomac River to the Washington Monument, Alberto J. Mora, the outgoing general
counsel of the United States Navy, stood next to a podium in the club's
ballroom. A handsome gray-haired man in his mid-fifties, he listened with a
mixture of embarrassment and pride as his colleagues toasted his impending
departure. Amid the usual tributes were some more pointed comments.

"Never has there been a counsel with more intellectual courage or personal
integrity," David Brant, the former head of the Naval Criminal Investigative
Service, said. Brant added somewhat cryptically, "He surprised us into doing the
right thing." Conspicuous for his silence that night was Mora's boss, William J.
Haynes II, the general counsel of the Department of Defense.

Back in Haynes's office, on the third floor of the Pentagon, there was a stack
of papers chronicling a private battle that Mora had waged against Haynes and
other top Administration officials, challenging their tactics in fighting
terrorism. Some of the documents are classified and, despite repeated requests
from members of the Senate Armed Services Committee and the Senate Judiciary
Committee, have not been released. One document, which is marked "secret" but is
not classified, is a twenty-two-page memo written by Mora. It shows that three
years ago Mora tried to halt what he saw as a disastrous and unlawful policy of
authorizing cruelty toward terror suspects.

The memo is a chronological account, submitted on July 7, 2004, to Vice Admiral
Albert Church, who led a Pentagon investigation into abuses at the U.S.
detention facility at Guantanamo Bay, Cuba. It reveals that Mora's criticisms of
Administration policy were unequivocal, wide-ranging, and persistent. Well
before the exposure of prisoner abuse in Iraq's Abu Ghraib prison, in April,
2004, Mora warned his superiors at the Pentagon about the consequences of
President Bush's decision, in February, 2002, to circumvent the Geneva
conventions, which prohibit both torture and "outrages upon personal dignity, in
particular humiliating and degrading treatment." He argued that a refusal to
outlaw cruelty toward U.S.-held terrorist suspects was an implicit invitation to
abuse. Mora also challenged the legal framework that the Bush Administration has
constructed to justify an expansion of executive power, in matters ranging from
interrogations to wiretapping. He described as "unlawful," "dangerous," and
"erroneous" novel legal theories granting the President the right to authorize
abuse. Mora warned that these precepts could leave U.S. personnel open to
criminal prosecution.

In important ways, Mora's memo is at odds with the official White House
narrative. In 2002, President Bush declared that detainees should be treated
"humanely, and to the extent appropriate and consistent with military necessity,
in a manner consistent with the principles" of the Geneva conventions. The
Administration has articulated this standard many times. Last month, on January
12th, Secretary of Defense Donald Rumsfeld, responding to charges of abuse at
the U.S. base in Cuba, told reporters, "What took place at Guantanamo is a
matter of public record today, and the investigations turned up nothing that
suggested that there was any policy in the department other than humane
treatment." A week later, the White House press spokesman, Scott McClellan, was
asked about a Human Rights Watch report that the Administration had made a
"deliberate policy choice" to abuse detainees. He answered that the organization
had hurt its credibility by making unfounded accusations. Top Administration
officials have stressed that the interrogation policy was reviewed and
sanctioned by government lawyers; last November, President Bush said, "Any
activity we conduct is within the law. We do not torture." Mora's memo, however,
shows that almost from the start of the Administration's war on terror the White
House, the Justice Department, and the Department of Defense, intent upon having
greater flexibility, charted a legally questionable course despite sustained
objections from some of its own lawyers.

Mora had some victories. "America has a lot to thank him for," Brant, the former
head of the N.C.I.S., told me. But those achievements were largely undermined by
a small group of lawyers closely aligned with Vice-President Cheney. In the end,
Mora was unable to overcome formidable resistance from several of the most
powerful figures in the government.

Brant had joked at the farewell party that Mora "was an incredible publicity
hound." In fact, Mora -- whose status in the Pentagon was equivalent to that of
a four-star general -- is known for his professional discretion, and he has
avoided the press. This winter, however, he agreed to confirm the authenticity
and accuracy of the memo and to be interviewed. A senior Defense Department
official, whom the Bush Administration made available as a spokesman, on the
condition that his name not be used, did so as well. Mora and the official both
declined to elaborate on internal Department of Defense matters beyond those
addressed in the memo. Mora, a courtly and warm man, is a cautious, cerebral
conservative who admired President Reagan and served in both the first and the
second Bush Administrations as a political appointee. He strongly supported the
Administration's war on terror, including the invasion of Iraq, and he revered
the Navy. He stressed that his only reason for commenting at all was his concern
that the Administration was continuing to pursue a dangerous course. "It's my
Administration, too," he said.

Mora first learned about the problem of detainee abuse on December 17, 2002,
when David Brant approached him with accusations of wrongdoing at Guantanamo. As
head of the Naval Criminal Investigation Service, Brant often reported to Mora
but hadn't dealt with him on anything so sensitive. "I wasn't sure how he would
react," Brant, a tall, thin man with a mustache, told me. Brant had already
conveyed the allegations to Army leaders, since they had command authority over
the military interrogators, and to the Air Force, but he said that nobody seemed
to care. He therefore wasn't hopeful when he went to Mora's office that
afternoon.

When we spoke, Mora recalled the mood at the Pentagon at the time, just fifteen
months after the September 11th attacks. "The mentality was that we lost three
thousand Americans, and we could lose a lot more unless something was done," he
said. "It was believed that some of the Guantanamo detainees had knowledge of
other 9/11-like operations that were under way, or would be executed in the
future. The gloves had to come off. The U.S. had to get tougher." Mora had been
inside the Pentagon on September 11th and recalled the jetliner crashing into
the building one facet over. He said that it "felt jarring, like a large safe
had been dropped overhead." From the parking lot, he watched the Pentagon burn.
The next day, he said, he looked around a room full of top military leaders, and
was struck by the thought that "these guys were going to be the tip of the
spear."

Brant oversaw a team of N.C.I.S. agents working with the F.B.I. at Guantanamo
Bay, in what was called the Criminal Investigative Task Force. It had been
assigned to elicit incriminating information from the nearly six hundred
detainees being held there. Unlike a group run by Army intelligence, Joint Task
Force 170, or J.T.F.-170, which was looking for intelligence that would help
American authorities determine Al Qaeda's next move, Brant's investigators
gathered evidence that eventually could be used for prosecutions in military
tribunals or civilian courts. He and his agents had experience and training in
law enforcement: Brant, a civilian, holds an advanced degree in criminology, and
worked as a policeman in Miami in the nineteen-seventies.

Brant informed Mora that he was disturbed by what his agents told him about the
conduct of military-intelligence interrogators at Guantanamo. These officials
seemed poorly trained, Brant said, and were frustrated by their lack of success.
He had been told that the interrogators were engaging in escalating levels of
physical and psychological abuse. Speaking of the tactics that he had heard
about, Brant told me, "Repugnant would be a good term to describe them."

Much of Brant's information had been supplied by an N.C.I.S. psychologist,
Michael Gelles, who worked with the C.I.T.F. and had computer access to the
Army's interrogation logs at Guantanamo. Brant told me that Gelles "is
phenomenal at unlocking the minds of everyone from child abusers to terrorists";
he took it seriously when Gelles described the logs as shocking.

The logs detailed, for example, the brutal handling of a Saudi detainee,
Mohammed al-Qahtani, whom an F.B.I. agent had identified as the "missing
twentieth hijacker" -- the terrorist who was supposed to have been booked on the
plane that crashed in a Pennsylvania field. Qahtani was apprehended in
Afghanistan a few months after the terrorist attacks.

Qahtani had been subjected to a hundred and sixty days of isolation in a pen
perpetually flooded with artificial light. He was interrogated on forty-eight of
fifty-four days, for eighteen to twenty hours at a stretch. He had been stripped
naked; straddled by taunting female guards, in an exercise called "invasion of
space by a female"; forced to wear women's underwear on his head, and to put on
a bra; threatened by dogs; placed on a leash; and told that his mother was a
whore. By December, Qahtani had been subjected to a phony kidnapping, deprived
of heat, given large quantities of intravenous liquids without access to a
toilet, and deprived of sleep for three days. Ten days before Brant and Mora
met, Qahtani's heart rate had dropped so precipitately, to thirty-five beats a
minute, that he required cardiac monitoring.

Brant told me that he had gone to Mora because he didn't want his team of
investigators to "in any way observe, condone, or participate in any level of
physical or in-depth psychological abuse. No slapping, deprivation of water,
heat, dogs, psychological abuse. It was pretty basic, black and white to me." He
went on, "I didn't know or care what the rules were that had been set by the
Department of Defense at that point. We were going to do what was morally,
ethically, and legally permissible." Recently declassified e-mails and orders
obtained by the American Civil Liberties Union document Brant's position,
showing that all C.I.T.F. personnel were ordered to "stand clear and report" any
abusive interrogation tactics.

Brant thinks that the Army's interrogation of Qahtani was unlawful. If an
N.C.I.S. agent had engaged in such abuse, he said, "we would have relieved,
removed, and taken internal disciplinary action against the individual -- let
alone whether outside charges would have been brought." Brant said he feared
that such methods would taint the cases his agents needed to make against the
detainees, undermining any attempts to prosecute them in a court of law. He also
doubted the reliability of forced confessions. Moreover, he told me, "it just
ain't right."

Another military official, who worked closely with Brant and who has been denied
permission to speak on the record, told me that the news "rocked" Mora. The
official added that Mora "was visionary about this. He quickly grasped the fact
that these techniques in the hands of people with this little training spelled
disaster."

In his memo, Mora noted that Brant asked him if he wanted to hear more about the
situation. He wrote, "I responded that I felt I had to."

Mora was a well-liked and successful figure at the Pentagon. Born in Boston in
1952, he is the son of a Hungarian mother, Klara, and a Cuban father, Lidio,
both of whom left behind Communist regimes for America. Klara's father, who had
been a lawyer in Hungary, joined her in exile just before the Soviet Union took
control. From the time Alberto was a small boy, Klara Mora told me, he heard
from his grandfather the message that "the law is sacred." For the Moras,
injustice and abuse were not merely theoretical concepts. One of Mora's great-
uncles had been interned in a Nazi concentration camp, and another was hanged
after having been tortured. Mora's first memory, as a young child, is of playing
on the floor in his mother's bedroom, and watching her crying as she listened to
a report on the radio declaring that the 1956 anti-Communist uprising in Hungary
had been crushed. "People who went through things like this tend to have very
strong views about the rule of law, totalitarianism, and America," Mora said.

At the time, Mora's family was living in Cuba. His father, a Harvard-trained
physician, had taken his wife and infant son back in 1952. When Castro seized
power, seven years later, the family barely escaped detention after a servant
informed the authorities that they planned to flee to America. In the ensuing
panic, Alberto obtained an emergency passport from the American Embassy in
Havana. "This was my first brush with the government," he said. "When I swore an
oath of allegiance to the American government, part of the oath involved taking
up arms to defend the country. And I was thinking, This is a serious thing for
me to be an eight-year-old boy, raising my hand before the American vice-consul
and taking the oath of allegiance." Cuban customs officials, seeing Alberto's
American passport, threatened not to let him board a ship. At the last minute,
one of his father's colleagues, who had been put in charge of the port, allowed
Alberto's emigration.

Mora's family settled in Jackson, Mississippi, where his father taught at the
state medical school and Mora attended a Catholic school. For the most part,
Jackson was "a wonderful place," Mora recalled, although it was also "very
conservative." Racism was rampant and everyone, including Mora, backed Barry
Goldwater in the 1964 election. Mora had never met anyone who opposed the
Vietnam War until he enrolled at Swarthmore College, a school that he chose
after reading an S.A.T.-preparation booklet that described it as small and
especially rigorous. He also had never met a feminist before going to hear Kate
Millett speak at Bryn Mawr, during his freshman year; her talk infuriated him.
After growing up in the South among friends who played sports, drank beer, and
had a good time, he found the Northeastern liberal elite curiously "nerdish."
The girls had thrown away their skirts -- if they'd ever had them, he joked --
and there were no parties. Yet he loved the intellectual environment. "You just
had these intense discussions," he recalled. "I revelled in it." Mora said that
he was the only person among his friends who wasn't a conscientious objector to
the war.

Mora graduated in 1974 with honors, and joined the State Department, working in
Portugal; in 1979, he entered law school in Miami. Finding litigation work more
"a living than a life," Mora said, he was happy to get an appointment as general
counsel of the U.S. Information Agency in the first Bush Administration. During
the Clinton years, he was appointed to a Republican seat on the Broadcasting
Board of Governors, where he was an advocate for Radio Marti, the American news
operation aimed at Cuba. He also practiced international law in several private
firms. When George W. Bush was elected, Mora -- with the backing of former
Defense Secretary Frank Carlucci, whom he had befriended in Portugal -- was
appointed general counsel of the Navy. He expected to spend most of his time
there streamlining the budget.

The day after Mora's first meeting with Brant, they met again, and Brant showed
him parts of the transcript of Qahtani's interrogation. Mora was shocked when
Brant told him that the abuse wasn't "rogue activity" but was "rumored to have
been authorized at a high level in Washington." The mood in the room, Mora
wrote, was one of "dismay." He added, "I was under the opinion that the
interrogation activities described would be unlawful and unworthy of the
military services." Mora told me, "I was appalled by the whole thing. It was
clearly abusive, and it was clearly contrary to everything we were ever taught
about American values."

Mora thinks that the media has focussed too narrowly on allegations of U.S.-
sanctioned torture. As he sees it, the authorization of cruelty is equally
pernicious. "To my mind, there's no moral or practical distinction," he told me.
"If cruelty is no longer declared unlawful, but instead is applied as a matter
of policy, it alters the fundamental relationship of man to government. It
destroys the whole notion of individual rights. The Constitution recognizes that
man has an inherent right, not bestowed by the state or laws, to personal
dignity, including the right to be free of cruelty. It applies to all human
beings, not just in America -- even those designated as 'unlawful enemy
combatants.' If you make this exception, the whole Constitution crumbles. It's a
transformative issue."

Mora said that he did not fear reprisal for stating his opposition to the
Administration's emerging policy. "It never crossed my mind," he said. "Besides,
my mother would have killed me if I hadn't spoken up. No Hungarian after
Communism, or Cuban after Castro, is not aware that human rights are
incompatible with cruelty." He added, "The debate here isn't only how to protect
the country. It's how to protect our values."

After the second meeting with Brant, Mora called his friend Steven Morello, the
general counsel of the Army, and asked him if he knew anything about the abuse
of prisoners at Guantanamo. Mora said that Morello answered, "I know a lot about
it. Come on down."

In Morello's office, Mora saw what he now refers to as "the package" -- a
collection of secret military documents that traced the origins of the coercive
interrogation policy at Guantanamo. It began on October 11, 2002, with a request
by J.T.F.-170's commander, Major General Michael Dunlavey, to make
interrogations more aggressive. A few weeks later, Major General Geoffrey Miller
assumed command of Guantanamo Bay, and, on the assumption that prisoners like
Qahtani had been trained by Al Qaeda to resist questioning, he pushed his
superiors hard for more flexibility in interrogations. On December 2nd,
Secretary of Defense Rumsfeld gave formal approval for the use of "hooding,"
"exploitation of phobias," "stress positions," "deprivation of light and
auditory stimuli," and other coercive tactics ordinarily forbidden by the Army
Field Manual. (However, he reserved judgment on other methods, including
"waterboarding," a form of simulated drowning.) In Mora's memo, Morello is
quoted as saying that "we tried to stop it." But he was told not to ask
questions.

According to a participant in the meeting, Mora was "ashen-faced" when he read
the package. The documents included a legal analysis, also dated October 11th,
by Lieutenant Colonel Diane Beaver, who was then the top legal adviser to
J.T.F.-170. She noted that some of the more brutal "counter-resistance"
techniques under consideration at Guantanamo, such as waterboarding (for which
soldiers had been court-martialled in earlier conflicts), might present legal
problems. She acknowledged that American military personnel at Guantanamo, as
everywhere else in the world, were bound by the Uniform Code of Military
Justice, which characterizes "cruelty," "maltreatment," "threats," and "assault"
as felonies. Beaver reasoned, however, that U.S. soldiers preparing to violate
these laws in their interrogations might be able to obtain "permission, or
immunity" from higher authorities "in advance."

The senior Defense Department official designated to speak for the
Administration acknowledged that Beaver's legal argument was inventive.
"Normally, you grant immunity after the fact, to someone who has already
committed a crime, in exchange for an order to get that person to testify," he
said. "I don't know whether we've ever faced the question of immunity in advance
before." Nevertheless, the official praised Beaver "for trying to think outside
the box. I would credit Diane as raising that as a way to think about it."
(Beaver was later promoted to the staff of the Pentagon's Office of General
Counsel, where she specializes in detainee issues.)

Mora was less impressed. Beaver's brief, his memo says, "was a wholly inadequate
analysis of the law." It held that "cruel, inhuman, or degrading treatment could
be inflicted on the Guantanamo detainees with near impunity"; in his view, such
acts were unlawful. Rumsfeld's December 2nd memo approving these "counter-
resistance" techniques, Mora wrote, "was fatally grounded on these serious
failures of legal analysis." Neither Beaver nor Rumsfeld drew any "bright line"
prohibiting the combination of these techniques, or defining any limits for
their use. He believed that such rhetorical laxity "could produce effects
reaching the level of torture," which was prohibited, without exception, under
both U.S. and international law. Mora took his concerns to Gordon England, the
Secretary of the Navy, who is now the Deputy Secretary of Defense. Then, on
December 20th, with England's authorization, Mora went to William Haynes, the
Pentagon's general counsel; they met in Haynes's office, an elegant suite behind
vault-like metal doors.

In confronting Haynes, Mora was engaging not just the Pentagon but also the
Vice-President's office. Haynes is a protege of Cheney's influential chief of
staff, David Addington. Addington's relationship with Cheney goes back to the
Reagan years, when Cheney, who was then a representative from Wyoming, was the
ranking Republican on a House select committee investigating the Iran-Contra
scandal. Addington, a congressional aide, helped to write a report for the
committee's Republican minority, arguing that the law banning covert aid to the
Contras -- the heart of the scandal -- was an unconstitutional infringement of
Presidential prerogatives. Both men continue to embrace an extraordinarily
expansive view of executive power. In 1989, when Cheney was named Secretary of
Defense by George H. W. Bush, he hired Addington as a special assistant, and
eventually appointed him to be his general counsel. Addington, in turn, hired
Haynes as his special assistant and soon promoted him to general counsel of the
Army.

After George W. Bush took office, Addington came to the White House with Cheney,
and Haynes took his boss's old job at the Pentagon. Addington has played a
central part in virtually all of the Administration's legal strategies,
including interrogation and detainee policies. The office of the Vice-President
has no statutory role in the military chain of command. But Addington's
tenacity, willingness to work long hours, and unalloyed support from Cheney made
him, in the words of another former Bush White House appointee, "the best
infighter in the Administration." One former government lawyer described him as
"the Octopus" -- his hands seemed to reach into every legal issue.

Haynes rarely discussed his alliance with Cheney's office, but his colleagues,
as one of them told me, noticed that "stuff moved back and forth fast" between
the two power centers. Haynes was not considered to be a particularly
ideological thinker, but he was seen as "pliant," as one former Pentagon
colleague put it, when it came to serving the agenda of Cheney and Addington. In
October, 2002, almost three months before his meeting with Mora, Haynes gave a
speech at the conservative Federalist Society, disparaging critics who accused
the Pentagon of mistreating detainees. A year later, President Bush nominated
him to the federal appeals court in Virginia. His nomination is one of several
that have been put on hold by Senate Democrats.

In his meeting with Haynes, Mora told me, he said that, whatever its intent,
what Rumsfeld's memo permitted was "torture."

According to Mora, Haynes replied, "No, it isn't."

Mora asked Haynes to think about the techniques more carefully. What did
"deprivation of light and auditory stimuli" mean? Could a prisoner be locked in
a completely dark cell? If so, could he be kept there for a month? Longer? Until
he went blind? What, precisely, did the authority to exploit phobias permit?
Could a detainee be held in a coffin? What about using dogs? Rats? How far could
an interrogator push this? Until a man went insane?

Mora drew Haynes's attention to a comment that Rumsfeld had added to the bottom
of his December 2nd memo, in which he asked why detainees could be forced to
stand for only four hours a day, when he himself often stood "for 8-10 hours a
day." Mora said that he understood that the comment was meant to be jocular. But
he feared that it could become an argument for the defense in any prosecution of
terror suspects. It also could be read as encouragement to disregard the limits
established in the memo. (Colonel Lawrence Wilkerson, a retired military officer
who was a chief of staff to former Secretary of State Colin Powell, had a
similar reaction when he saw Rumsfeld's scrawled aside. "It said, 'Carte
blanche, guys,' " Wilkerson told me. "That's what started them down the slope.
You'll have My Lais then. Once you pull this thread, the whole fabric
unravels.")

Haynes said little during the meeting with Mora, but Mora left the room certain
that Haynes would realize he had been too hasty, and would get Rumsfeld to
revoke the inflammatory December 2nd memo. Mora told me, "My feeling was it was
just a blunder." The next day, he left Washington for a two-week Christmas
holiday.

The authorization of harsh interrogation methods which Mora had seen was no
aberration. Almost immediately after September 11th, the Administration had
decided that protecting the country required extraordinary measures, including
the exercise of executive powers exceeding domestic and international norms. In
January, 2002, Alberto Gonzales, then the White House counsel (he is now the
Attorney General), sent a memo to President Bush arguing for a "new paradigm" of
interrogation, declaring that the war on terror "renders obsolete" the "strict
limitations on questioning of enemy prisoners" required by the Geneva
conventions, which were ratified by the United States in 1955. That August, the
Justice Department's Office of Legal Counsel, which acts as an in-house law firm
for the executive branch, issued a memo secretly authorizing the C.I.A. to
inflict pain and suffering on detainees during interrogations, up to the level
caused by "organ failure." This document, now widely known as the Torture Memo,
which Addington helped to draft, also advised that, under the doctrine of
"necessity," the President could supersede national and international laws
prohibiting torture. (The document was leaked to the press in 2004, after the
Abu Ghraib scandal broke.)

Lawrence Wilkerson, whom Powell assigned to monitor this unorthodox policymaking
process, told NPR last fall of "an audit trail that ran from the Vice-
President's office and the Secretary of Defense down through the commanders in
the field." When I spoke to him recently, he said, "I saw what was discussed. I
saw it in spades. From Addington to the other lawyers at the White House. They
said the President of the United States can do what he damn well pleases. People
were arguing for a new interpretation of the Constitution. It negates Article
One, Section Eight, that lays out all of the powers of Congress, including the
right to declare war, raise militias, make laws, and oversee the common defense
of the nation." Cheney's view, Wilkerson suggested, was fuelled by his desire to
achieve a state of "perfect security." He said, "I can't fault the man for
wanting to keep America safe, but he'll corrupt the whole country to save it."
(Wilkerson left the State Department with Powell, in January, 2005.)

At the time, the Administration's embrace of interrogation measures normally
proscribed by the Army Field Manual remained largely unknown to the public. But
while Mora was on Christmas vacation, the Washington Post published a story, by
Dana Priest and Barton Gellman, alleging that C.I.A. personnel were mistreating
prisoners at the Bagram military base, in Afghanistan. Kenneth Roth, the
director of Human Rights Watch, warned that if this was true U.S. officials who
knew about it could be criminally liable, under the doctrine of command
responsibility. The specific allegations closely paralleled what Mora had seen
authorized at Guantanamo.

Upon returning to work on January 6, 2003, Mora was alarmed to learn from Brant
that the abuse at Guantanamo had not stopped. In fact, as Time reported last
year, Qahtani had been stripped and shaved and told to bark like a dog. He'd
been forced to listen to pop music at an ear-splitting volume, deprived of
sleep, and kept in a painfully cold room. Between confessing to and then
recanting various terrorist plots, he had begged to be allowed to commit
suicide.

Mora suspected that such abuse was a deliberate policy, and widened his internal
campaign in the hope of building a constituency against it. In the next few
days, his arguments reached many of the Pentagon's top figures: Deputy Secretary
of Defense Paul Wolfowitz; Captain Jane Dalton, the legal adviser to the Joint
Chiefs of Staff; Victoria Clarke, who was then the Pentagon spokeswoman; and
Rumsfeld.

Meanwhile, on January 9, 2003, Mora had a second meeting with Haynes. According
to Mora's memo, when he told him how disappointed he was that nothing had been
done to end the abuse at Guantanamo, Haynes explained that "U.S. officials
believed the techniques were necessary to obtain information," and that the
interrogations might prevent future attacks against the U.S. and save American
lives. Mora acknowledged that he could imagine "ticking bomb" scenarios, in
which it might be moral -- though still not legal -- to torture a suspect. But,
he asked Haynes, how many lives had to be saved to justify torture? Thousands?
Hundreds? Where do you draw the line? To decide this question, shouldn't there
be a public debate?

Mora said he doubted that Guantanamo presented such an urgent ethical scenario
in any event, since most of the detainees had been held there for more than a
year. He also warned Haynes that the legal opinions the Administration was
counting on to protect itself might not withstand scrutiny -- such as the notion
that Guantanamo was beyond the reach of U.S. courts. (Mora was later proved
right: in June, 2004, the Supreme Court, in Rasul v. Bush, ruled against the
Administration's argument that detainees had no right to challenge their
imprisonment in American courts. That month, in a related case, Justice Sandra
Day O'Connor declared that "a state of war is not a blank check for the
President.")

Mora told Haynes that, if the Pentagon's theories of indemnity didn't hold up in
the courts, criminal charges conceivably could be filed against Administration
officials. He added that the interrogation policies could threaten Rumsfeld's
tenure, and could even damage the Presidency. "Protect your client!" he said.

Haynes, again, didn't say much in response, but soon afterward, at a meeting of
top Pentagon officials, he mentioned Mora's concerns to Secretary Rumsfeld. A
former Administration official told me that Rumsfeld was unconcerned; he once
more joked that he himself stood eight hours a day, and exclaimed, "Torture?
That's not torture!" ("His attitude was 'What's the big deal?' " the former
official said.) A subordinate delicately pointed out to Rumsfeld that while he
often stood for hours it was because he chose to do so, and he could sit down
when he wanted. Victoria Clarke, the Pentagon spokeswoman, also argued that
prisoner abuse was bad from a public-relations perspective. (Clarke declined to
discuss her conversations with Administration officials, other than to say that
she regarded Mora as "a very thoughtful guy, who I believed had a lot of
important things to say.")

By mid-January, the situation at Guantanamo had not changed. Qahtani's
"enhanced" interrogation, as it was called in some documents, was in its seventh
week, and other detainees were also being subjected to extreme treatment. Mora
continued to push for reform, but his former Pentagon colleague told me that
"people were beginning to roll their eyes. It was like 'Yeah, we've already
heard this.' "

On January 15th, Mora took a step guaranteed to antagonize Haynes, who
frequently warned subordinates to put nothing controversial in writing or in e-
mail messages. Mora delivered an unsigned draft memo to Haynes, and said that he
planned to "sign it out" that afternoon -- making it an official document --
unless the harsh interrogation techniques were suspended. Mora's draft memo
described U.S. interrogations at Guantanamo as "at a minimum cruel and unusual
treatment, and, at worst, torture."

By the end of the day, Haynes called Mora with good news. Rumsfeld was
suspending his authorization of the disputed interrogation techniques. The
Defense Secretary also was authorizing a special "working group" of a few dozen
lawyers, from all branches of the armed services, including Mora, to develop new
interrogation guidelines.

Mora, elated, went home to his wife and son, with whom he had felt bound not to
discuss his battle. He and the other lawyers in the working group began to meet
and debated the constitutionality and effectiveness of various interrogation
techniques. He felt, he later told me, that "no one would ever learn about the
best thing I'd ever done in my life."

A week later, Mora was shown a lengthy classified document that negated almost
every argument he had made. Haynes had outflanked him. He had solicited a
separate, overarching opinion from the Office of Legal Counsel, at the Justice
Department, on the legality of harsh military interrogations -- effectively
superseding the working group.

There was only one copy of the opinion, and it was kept in the office of the Air
Force's general counsel, Mary Walker, whom Rumsfeld had appointed to head the
working group. While Walker sat at her desk, Mora looked at the document with
mounting disbelief; at first, he thought he had misread it. There was no
language prohibiting the cruel, degrading, and inhuman treatment of detainees.
Mora told me that the opinion was sophisticated but displayed "catastrophically
poor legal reasoning." In his view, it approached the level of the notorious
Supreme Court decision in Korematsu v. United States, in 1944, which upheld the
government's internment of Japanese-Americans during the Second World War.

The author of the opinion was John Yoo, a young and unusually influential lawyer
in the Administration, who, like Haynes, was part of Addington's circle. (Yoo
and Haynes were also regular racquetball partners.) In the past, Yoo, working
closely with Addington, had helped to formulate the argument that the treatment
of Al Qaeda and Taliban suspects, unlike that of all other foreign enemies, was
not covered by the Geneva conventions; Yoo had also helped to write the Torture
Memo. Before joining the Administration, Yoo, a graduate of Yale Law School, had
clerked for Justice Clarence Thomas and taught law at Berkeley. Like many
conservative legal scholars, he was skeptical of international law, and believed
that liberal congressional overreaction to the Vietnam War and Watergate had
weakened the Presidency, the C.I.A., and the military. However, Yoo took these
arguments further than most. Constitutional scholars generally agreed that the
founders had purposefully divided the power to wage war between Congress and the
executive branch; Yoo believed that the President's role as Commander-in-Chief
gave him virtually unlimited authority to decide whether America should respond
militarily to a terror attack, and, if so, what kind of force to use. "Those
decisions, under our Constitution, are for the President alone to make," he
wrote in a law article.

A top Administration official told me that Yoo, Addington, and a few other
lawyers had essentially "hijacked policy" after September 11th. "They thought,
Now we can put our views into practice. We have the ability to write them into
binding law. It was just shocking. These memos were presented as faits
accomplis."

In Yoo's opinion, he wrote that at Guantanamo cruel, inhumane, and degrading
treatment of detainees could be authorized, with few restrictions.

"The memo espoused an extreme and virtually unlimited theory of the extent of
the President's Commander-in-Chief authority," Mora wrote in his account. Yoo's
opinion didn't mention the most important legal precedent defining the balance
of power between Congress and the President during wartime, Youngstown Sheet &
Tube Company v. Sawyer. In that 1952 case, the Supreme Court stopped President
Truman from forcing the steel worker's union, which had declared a strike, to
continue producing steel needed in the Korean War. The Court upheld
congressional labor laws protecting the right to strike, and ruled that the
President's war powers were at their weakest when they were challenging areas in
which Congress had passed legislation. Torture, Mora reasoned, had been
similarly regulated by Congress through treaties it had ratified.

In an e-mail response to questions this month, Yoo, who is now back at Berkeley,
defended his opinion. "The war on terrorism makes Youngstown more complicated,"
he said. "The majority opinion explicitly said it was not considering the
President's powers as Commander-in-Chief in the theater of combat. The
difficulty for Youngstown created by the 9/11 attacks is that the theater of
combat now includes parts of the domestic United States." He also argued that
Congress had ceded power to the President in its authorization of military force
against the perpetrators of the September 11th attacks.

Mora concluded that Yoo's opinion was "profoundly in error." He wrote that it
"was clearly at variance with applicable law." When we spoke, he added, "If
everything is permissible, and almost nothing is prohibited, it makes a mockery
of the law." A few days after reading Yoo's opinion, he sent an e-mail to Mary
Walker, saying that the document was not only "fundamentally in error" but
"dangerous," because it had the weight of law. When the Office of Legal Counsel
issues an opinion on a policy matter, it typically requires the intervention of
the Attorney General or the President to reverse it.

Walker wrote back, "I disagree, and I believe D.O.D. G.C." -- Haynes, the
Pentagon's general counsel -- "disagrees."

On February 6th, Mora invited Yoo to his office, in the Pentagon, to discuss the
opinion. Mora asked him, "Are you saying the President has the authority to
order torture?"

"Yes," Yoo replied.

"I don't think so," Mora said.

"I'm not talking policy," Yoo said. "I'm just talking about the law."

"Well, where are we going to have the policy discussion, then?" Mora asked.

Mora wrote that Yoo replied that he didn't know; maybe, he suggested, it would
take place inside the Pentagon, where the defense-policy experts were. (Yoo said
that he recalled discussing only how the policy issues should be debated, and
where. Torture, he said, was not an option under consideration.)

But Mora knew that there would be no such discussion; as the Administration saw
it, the question would be settled by Yoo's opinion. Indeed, Mora soon realized
that, under the supervision of Mary Walker, a draft working-group report was
being written to conform with Yoo's arguments. Mora wrote in his memo that
contributions from the working group "began to be rejected if they did not
conform to the OLC" -- Office of Legal Counsel -- "guidance."

The draft working-group report noted that the Uniform Code of Military Justice
barred "maltreatment" but said, "Legal doctrine could render specific conduct,
otherwise criminal, not unlawful." In an echo of the Torture Memo, it also
declared that interrogators could be found guilty of torture only if their
"specific intent" was to inflict "severe physical pain or suffering" as
evidenced by "prolonged mental harm." Even then, it said, echoing Yoo, the
Commander-in-Chief could order torture if it was a military necessity: "Congress
may no more regulate the President's ability to detain and interrogate enemy
combatants than it may regulate his ability to direct troop movements on the
battlefield."

A few days after his meeting with Yoo, Mora confronted Haynes again. He told him
that the draft working-group report was "deeply flawed." It should be locked in
a drawer, he said, and "never let out to see the light of day again." He advised
Haynes not to allow Rumsfeld to approve it.

In the spring of 2003, Mora waited for the final working-group report to emerge,
planning to file a strong dissent. But the report never appeared. Mora assumed
that the draft based on Yoo's ideas had not been finalized and that the
suspension of the harsh techniques authorized by Rumsfeld was still in effect.

In June, press accounts asserted that the U.S. was subjecting detainees to
"stress and duress" techniques, including beatings and food deprivation. Senator
Patrick Leahy, Democrat of Vermont, wrote to Secretary of State Condoleezza
Rice, asking for a clear statement of the Administration's detainee policy.
Haynes wrote a letter back to Leahy, which was subsequently released to the
press, saying that the Pentagon's policy was never to engage in torture, or
cruel, inhumane, or degrading treatment -- just the sort of statement Mora had
argued for. He wrote in his memo that he saw Haynes's letter as "the happy
culmination of the long debates in the Pentagon." He sent an appreciative note
to Haynes, saying that he was glad to be on his team.

On April 28, 2004, ten months later, the first pictures from Abu Ghraib became
public. Mora said, "I felt saddened and dismayed. Everything we had warned
against in Guantanamo had happened -- but in a different setting. I was
stunned."

He was further taken aback when he learned, while watching Senate hearings on
Abu Ghraib on C-SPAN, that Rumsfeld had signed the working-group report -- the
draft based on Yoo's opinion -- a year earlier, without the knowledge of Mora or
any other internal legal critics. Rumsfeld's signature gave it the weight of a
military order. "This was the first I'd heard of it!" Mora told me. Mora wrote
that the Air Force's deputy general counsel, Daniel Ramos, told him that the
final working-group report had been "briefed" to General Miller, the commander
of Guantanamo, and General James Hill, the head of the Southern Command, months
earlier. (The Pentagon confirmed this, though it said that the generals had not
seen the full report.) "It was astounding," Mora said. "Obviously, it meant that
the working-group report hadn't been abandoned, and that some version of it had
gotten into the generals' possession."

The working-group report included a list of thirty-five possible interrogation
methods. On April 16, 2003, the Pentagon issued a memorandum to the U.S.
Southern Command, approving twenty-four of them for use at Guantanamo, including
isolation and what it called "fear up harsh," which meant "significantly
increasing the fear level in a detainee." The Defense Department official told
me, "It should be noted that there were strong advocates for the approval of the
full range of thirty-five techniques," but Haynes was not among them. The
techniques not adopted included nudity; the exploitation of "aversions," such as
a fear of dogs; and slaps to the face and stomach. However, combined with the
legal reasoning in the working-group report, the April memorandum allowed the
Secretary to approve harsher methods.

Without Mora's knowledge, the Pentagon had pursued a secret detention policy.
There was one version, enunciated in Haynes's letter to Leahy, aimed at critics.
And there was another, giving the operations officers legal indemnity to engage
in cruel interrogations, and, when the Commander-in-Chief deemed it necessary,
in torture. Legal critics within the Administration had been allowed to think
that they were engaged in a meaningful process; but their deliberations appeared
to have been largely an academic exercise, or, worse, a charade. "It seems that
there was a two-track program here," said Martin Lederman, a former lawyer with
the Office of Legal Counsel, who is now a visiting professor at Georgetown.
"Otherwise, why would they share the final working-group report with Hill and
Miller but not with the lawyers who were its ostensible authors?"

Lederman said that he regarded Mora as heroic for raising crucial objections to
the Administration's interrogation policy. But he added that Mora was
unrealistic if he thought that, by offering legal warnings, he could persuade
the leaders of the Administration to change its course. "It appears that they
weren't asking to be warned," Lederman said.

The senior Defense Department official defended as an act of necessary caution
the decision not to inform Mora and other legal advisers of official policy. The
interrogation techniques authorized in the signed report, he explained, were
approved only for Guantanamo, and the Pentagon needed to prevent the practices
from spreading to other battlefronts. "If someone wants to criticize us for
being too careful, I accept that criticism willingly, because we were doing what
we could to limit the focus of that report . . . to Guantanamo," the official
said.

In fact, techniques that had been approved for use at Guantanamo were quickly
transferred elsewhere. Four months after General Miller was briefed on the
working-group report, the Pentagon sent him to Iraq, to advise officials there
on interrogating Iraqi detainees. Miller, who arrived with a group of Guantanamo
interrogators, known as the Tiger Team, later supervised all U.S.-run prisons in
Iraq, including Abu Ghraib. And legal advisers to General Ricardo Sanchez, the
senior U.S. commander in Iraq at the time, used the report as a reference in
determining the limits of their interrogation authority, according to a Pentagon
report on Abu Ghraib.

A lawyer involved in the working group said that the Pentagon's contention that
it couldn't risk sharing the report with its authors "doesn't make any sense."
He explained, "We'd seen everything already." The real reason for their
exclusion, he speculated, was to avoid dissent. "It would have put them in a
bind," he said. "And it would have created a paper trail."

Meanwhile, Mora's warnings about the legal underpinnings of the working-group
report proved prophetic. In December, 2003, in an extraordinary repudiation of
the Administration's own legal work, the Office of Legal Counsel quietly
withdrew the Yoo opinion. The new head of the O.L.C., Jack Goldsmith, a
conservative legal scholar who now teaches at Harvard Law School, told the
Pentagon that it could no longer rely on the legal analysis. Among other
problems, Goldsmith had found Yoo's interpretation of the President's powers
overly broad. In March, 2005, the Pentagon declared the working-group report a
non-operational "historical" document. By that time, however, much of the most
serious abuse at Guantanamo had already occurred.

At the Pentagon in recent weeks, officials portrayed Mora's memo as ancient
history. They argued that they had acted quickly to rectify the wrongs he helped
expose, by limiting the list of approved interrogation techniques. But while
Mora believes that the use of cruel treatment in interrogation has diminished,
he feels that the fight to establish clear, humane standards for the treatment
of detainees is not over. He also worries that the Administration's views on
interrogation have undermined American foreign policy, in part by threatening
the international coalition needed to fight terrorism. Allied countries may not
be able to support U.S. military actions, he said, if detainees are treated in a
manner that most nations deemed illegal.

Just a few months ago, Mora attended a meeting in Rumsfeld's private conference
room at the Pentagon, called by Gordon England, the Deputy Defense Secretary, to
discuss a proposed new directive defining the military's detention policy. The
civilian Secretaries of the Army, the Air Force, and the Navy were present,
along with the highest-ranking officers of each service, and some half-dozen
military lawyers. Matthew Waxman, the deputy assistant secretary of defense for
detainee affairs, had proposed making it official Pentagon policy to treat
detainees in accordance with Common Article Three of the Geneva conventions,
which bars cruel, inhumane, and degrading treatment, as well as outrages against
human dignity.Going around the huge wooden conference table, where the officials
sat in double rows, England asked for a consensus on whether the Pentagon should
support Waxman's proposal.

This standard had been in effect for fifty years, and all members of the U.S.
armed services were trained to follow it. One by one, the military officers
argued for returning the U.S. to what they called the high ground. But two
people opposed it. One was Stephen Cambone, the under-secretary of defense for
intelligence; the other was Haynes. They argued that the articulated standard
would limit America's "flexibility." It also might expose Administration
officials to charges of war crimes: if Common Article Three became the standard
for treatment, then it might become a crime to violate it. Their opposition was
enough to scuttle the proposal.

In exasperation, according to another participant, Mora said that whether the
Pentagon enshrined it as official policy or not, the Geneva conventions were
already written into both U.S. and international law. Any grave breach of them,
at home or abroad, was classified as a war crime. To emphasize his position, he
took out a copy of the text of U.S. Code 18.2441, the War Crimes Act, which
forbids the violation of Common Article Three, and read from it. The point, Mora
told me, was that "it's a statute. It exists -- we're not free to disregard it.
We're bound by it. It's been adopted by the Congress. And we're not the only
interpreters of it. Other nations could have U.S. officials arrested."

Not long afterward, Waxman was summoned to a meeting at the White House with
David Addington. Waxman declined to comment on the exchange, but, according to
the Times, Addington berated him for arguing that the Geneva conventions should
set the standard for detainee treatment. The U.S. needed maximum flexibility,
Addington said. Since then, efforts to clarify U.S. detention policy have
languished. In December, Waxman left the Pentagon for the State Department.

To date, no charges have been brought against U.S. personnel in Guantanamo. The
senior Defense Department official I spoke to affirmed that, in the Pentagon's
view, Qahtani's interrogation was "within the bounds." Elsewhere in the world,
as Mora predicted, the controversy is growing. Last week, the United Nations
Human Rights Commission called for the U.S. to shut down the detention center at
Guantanamo, where,it said, some practices "must be assessed as amounting to
torture." The U.N. report, which the White House dismissed, described "the
confusion with regard to authorized and unauthorized interrogation techniques"
as "particularly alarming."

Mora recently started a new job, as the general counsel for Wal-Mart's
international operations. A few days after his going-away party, he reflected on
his tenure at the Pentagon. He felt that he had witnessed both a moral and a
legal tragedy.

In Mora's view, the Administration's legal response to September 11th was flawed
from the start, triggering a series of subsequent errors that were all but
impossible to correct. "The determination that Geneva didn't apply was a legal
and policy mistake," he told me. "But very few lawyers could argue to the
contrary once the decision had been made."

Mora went on, "It seemed odd to me that the actors weren't more troubled by what
they were doing." Many Administration lawyers, he said, appeared to be unaware
of history. "I wondered if they were even familiar with the Nuremberg trials --
or with the laws of war, or with the Geneva conventions. They cut many of the
experts on those areas out. The State Department wasn't just on the back of the
bus -- it was left off the bus." Mora understood that "people were afraid that
more 9/11s would happen, so getting the information became the overriding
objective. But there was a failure to look more broadly at the ramifications.

"These were enormously hardworking, patriotic individuals," he said. "When you
put together the pieces, it's all so sad. To preserve flexibility, they were
willing to throw away our values."

*


New York Times --

February 13, 2006

The Bagram File
YEARS AFTER 2 AFGHANS DIED, ABUSE CASE FALTERS

By Tim Golden

http://www.nytimes.com/2006/02/13/national/13bagram.html

FORT BLISS, Tex. -- In the chronicle of abuses that has emerged from America's
fight against terror, there may be no story more jarring than that of the two
young men killed at a United States military detention center in Afghanistan in
December 2002.

The two Afghans were found dead within days of each other, hanging by their
shackled wrists in isolation cells at the prison in Bagram, north of Kabul. An
Army investigation showed they were treated harshly by interrogators, deprived
of sleep for days, and struck so often in the legs by guards that a coroner
compared the injuries to being run over by a bus.

But more than a year after the Army began a major push to prosecute those
responsible for the abuse of the two men and several other prisoners at Bagram,
that effort has faltered badly.

Of 27 soldiers and officers against whom Army investigators had recommended
criminal charges, 15 have been prosecuted. Five of those have pleaded guilty to
assault and other crimes; the stiffest punishment any of them have received has
been five months in a military prison. Only one soldier has been convicted at
trial; he was not imprisoned at all.

While military lawyers said the pleas were negotiated in exchange for
information or testimony against other soldiers, the prosecution has gained no
evident momentum. Four former guards accused of assaulting detainees were all
acquitted in recent courts-martial. Charges against a fifth former guard were
dropped.

In one of the prosecutors' most important tests, the Army last month abandoned
its case against Capt. Christopher M. Beiring, the former military police
commander at Bagram and one of the few American officers since 9/11 to face
criminal charges related to the abuse of detainees by the officers'
subordinates.

"If this case were to go to trial, it would be a big, ugly loser for the
government," Lt. Col. Thomas S. Berg, the Army judge who oversaw Captain
Beiring's pretrial inquiry, wrote in a report on the evidence.

In recommending dismissal of the case, Colonel Berg argued that the prosecutors
had overreached, charging Captain Beiring with command failures that they could
not prove. The judge also highlighted a problem that has frustrated the
prosecutors in their effort to hold soldiers accountable for breaking the rules
at Bagram: those rules were not at all clear.

Indeed, more directly than any other episode since 9/11, the Bagram cases have
exposed the uncertainty and confusion among military interrogators and guards
about how they were required to treat terror suspects after President Bush
decided in February 2002 that they would not be protected by the Geneva
Conventions.

Although the administration issued a general order that detainees should be
treated humanely, internal military files on the case show that officers and
soldiers at Bagram differed over what specific guidelines, if any, applied. That
ambiguity confounded the Army's criminal investigators for months and left the
prosecutors vacillating over strategy. It also gave the accused soldiers a
defense that has seemed to resonate with some military judges and jurors.

"The president of the United States doesn't know what the rules are!" said Capt.
Joseph Owens, a lawyer for one of the accused interrogators, Pfc. Damien M.
Corsetti, who is one of two former Bagram soldiers still facing court-martial.
"The secretary of defense doesn't know what the rules are. But the government
expects this Pfc. to know what the rules are?"

The prosecutors have stumbled over a series of other obstacles as well, some of
them plainly visible. After a criminal inquiry that took almost two years,
witnesses in the case were scattered, their memories dimmed. A crucial witness
in three of the trials changed his story repeatedly, leading to acquittals in
each case. Other potentially important figures who had left the military were
largely ignored.

In the modest Fort Bliss courtrooms where the trials have been held, the two
Afghan victims have rarely been evoked, except in autopsy photographs. But much
testimony focused on hardships faced by the soldiers themselves: the poor
training they received, the tough conditions in which they operated, the vague
rules with which they had to contend. As in other recent abuse cases, Army
judges and jurors also seemed to consider the soldiers' guilt or innocence with
an acute sense of the sacrifices they had made in serving overseas.

Lt. Col. Joseph A. Simonelli Jr., who sat on the jury for a former Bagram guard
who admitted to repeatedly striking one of the detainees who died, was asked
after the trial how he had viewed the defendant. The soldier, convicted of
maiming, assault and other crimes, was sentenced to only a demotion in rank, and
honorably discharged.

"This individual was an American citizen who had been called up," Colonel
Simonelli, a Fort Bliss battalion commander, said in an interview. "He had
volunteered, and when they called upon him to perform his duties in a time of
war, he did it without question."

Standard Procedure

In the first case they filed, in August 2004, Army prosecutors charged a Reserve
military police sergeant, James P. Boland, with assaulting and maltreating one
of the detainees who died at Bagram "by shackling him in a standing position
with hands suspended above shoulder level for a prolonged period of time."

The detainee, a 22-year-old taxi driver who used the single name Dilawar, had
been picked up as he drove some passengers past a remote American fire base that
had come under rocket fire hours before. He was found dead in a cell at Bagram
on Dec. 10, 2002, a victim of what Army medical examiners later concluded were
"blunt-force injuries" to his legs. The prolonged shackling had also contributed
to his death, coroners ruled.

Another detainee, known as Mullah Habibullah, had been found dead six days
earlier under similar circumstances. Many guards from Sergeant Boland's Reserve
unit acknowledged to investigators that they had kneed the two prisoners in the
thighs for being unruly or disobedient; they said the technique had been widely
used.

But by charging Sergeant Boland for his role in the overhead shackling, a common
method to keep prisoners from sleeping or to punish them, the prosecutors were
effectively arguing that one of the standard procedures at Bagram had itself
been criminal.

That assertion raised the possibility that senior officers at Bagram and even
Pentagon officials could also be held liable for authorizing the practice or
acquiescing in it.

According to one of dozens of confidential Army documents recently obtained by
The New York Times, agents of the Army's Criminal Investigation Command made it
a high priority in the summer of 2003 to determine "who authorized the forced-
standing and no-sleep practices" at Bagram. In a later internal report, a
special task force of agents from the division reported that "the responsibility
of supervisory personnel" in the Bagram officer corps remained "under continued
investigation."

Yet, for reasons that are unclear, it was not until April 2004 --16 months after
the two deaths -- that investigators even began to question officers who had
served on the command staff at Bagram, the documents show.

Most of the senior officers were eventually questioned. But the possibility that
the Bagram prosecutions might lead to higher-ranking authorities -- or to a
clarification of the rules -- did not materialize.

Army investigators had recommended charges of assault, maltreatment and
dereliction of duty against the former noncommissioned officer in charge of the
Bagram interrogators, Staff Sgt. Steven W. Loring. But Mr. Loring, who left the
Army at the end of 2003, was rarely mentioned in court and never charged.

A military official familiar with the Loring case said the Army referred it to
the Justice Department, which declined to prosecute. Prosecutors at Fort Bliss
would say only that Mr. Loring "left the Army prior to the transfer of the
Bagram cases to Fort Bliss."

Nor is the Army expected to prosecute the officer who led Mr. Loring's platoon,
Capt. Carolyn A. Wood, despite a formal recommendation by the Criminal
Investigation Command that she be charged with dereliction of duty, Defense
Department officials said.

Last spring, the Bagram prosecutors dropped all charges against Sergeant Boland,
who has since left the military, arranging instead for a letter of reprimand.
That letter, dated June 22, 2005, said his failure to seek medical help for the
prisoner or prevent his assault by other military policemen "contributed to the
death of Mr. Dilawar," a copy of the document shows. In the charges they later
brought against 10 other former Bagram guards, they never again cited the
overhead shackling as evidence of maltreatment or assault. They declined to say
why.

An Honorable Discharge

Throughout the trials, the prosecutors cast the Bagram abuses as straightforward
crimes: whatever the soldiers may have lacked in training or guidelines, the
prosecutors said, they were never allowed to strike shackled prisoners merely
because they were, as many guards had insisted, "noncompliant."

At the same time, several Army lawyers familiar with the case said, the
prosecution never had much hope of pressing murder charges. So many guards had
admitted to striking the two men, the lawyers said, that it would be almost
impossible to fix blame on one or even several of them. Moreover, there were few
witnesses to the beatings, and almost none who were not themselves implicated in
wrongdoing.

The closest the prosecution team came to assigning responsibility for the deaths
were charges of involuntary manslaughter, maiming and other crimes against one
of the military policemen, Specialist Willie V. Brand. He had spoken openly with
Army investigators long after others had invoked their right to remain silent,
and the story he told was chilling. By his own admission, Specialist Brand, then
24, had repeatedly struck both of the detainees who died, kneeing them in the
thigh with a technique that some of the unit's reservists had taught to others.

Specialist Brand had told investigators that he kneed Mr. Dilawar more than 30
times, because "I was fed up with him," and added that he struck "a lot of
other" detainees as well. He said "90 percent" of the other guards who worked
the Bagram isolation cells on the night shift also used knee strikes, including
some who struck Dilawar because they were amused to hear him cry out, "Allah!"

Army prosecutors described Specialist Brand's actions as brutally excessive. But
jurors also heard Mr. Boland, testifying for the defense, describe the "fuzzy"
and "inadequate" training of the reservists.

The jurors also asked questions of their own, as they are allowed to do in
courts-martial. Many of them centered on the guards' rules for using force, how
they were trained and how they were supervised. They also heard six other
soldiers testify that they, too, had used knee strikes and had been trained to
do so.

"To me what he did may have been a contributing factor" in Mr. Dilawar's death,
Colonel Simonelli, a juror in the case, said of Specialist Brand. "But was it
the most important factor? Based on my limited knowledge, I cannot confirm that
to be the case."

The prosecutors did not mention the young wife and a 2-year-old daughter that
Mr. Dilawar left behind, or that interrogators had concluded before his death
that he was almost certainly innocent of any involvement in the rocket attack on
the American base. The jury convicted Specialist Brand of maiming, assault,
maltreatment and making a false statement and could have sentenced him to 16
years in a military prison. Instead, after hearing about his sick wife and their
indigent family of four children, they declined even to give him a bad-conduct
discharge. The most serious charge against him, involuntary manslaughter, was
dropped before the trial began.

Even Specialist Brand's civilian lawyer, John P. Galligan, said he was stunned
by the sentence: his client was reduced in rank to private, but not jailed or
fined; he left the Army with an honorable discharge.

Questions Not Asked

The former Bagram interrogators who were prosecuted, all members of the 519th
Military Intelligence Battalion from Fort Bragg, N.C., were not accused of any
direct role in the two deaths. But their cases raised further questions about
the possible responsibility of higher-ranking officers.

One interrogator who pleaded guilty to reduced charges, Specialist Glendale C.
Walls II, acknowledged having pushed Mr. Dilawar against a wall and standing by
as his partner, then-Specialist Joshua R. Claus, forced another prisoner to roll
back and forth on the ground, kissing their boots.

Specialist Walls explained his misconduct in part by saying his superiors at
Bagram had pushed him to be more aggressive in his interrogations. But he gave
few details and prosecutors did not press him, saying later that his claims had
been "fully investigated."

But nor did they mention a secret memorandum showing that around the time of the
two deaths, interrogators at Bagram were using new, aggressive methods that were
not authorized for use in Afghanistan.

The 10-page memorandum, a copy of which was obtained by The Times, was written
by the military's acting chief lawyer at Bagram, Lt. Col. Robert J. Cotell Jr.,
on Jan. 24, 2003. It indicates that interrogators there adopted some of the more
extreme interrogation methods that Secretary of Defense Donald H. Rumsfeld
approved on Dec. 2, 2002, exclusively for use at Guantanamo Bay, Cuba.

(Mr. Rumsfeld rescinded those methods barely a month later, after complaints by
the Navy general counsel, Alberto J. Mora, and other officials.)

Although military lawyers said the Bagram prosecutors were aware of Mr. Cotell's
memorandum, the document was never cited in court. Nor do the prosecutors or
Army investigators appear to have asked intelligence officers at Bagram to
specify what those harsher methods were, when they were used, who authorized
them -- or whether they had any effect on the treatment of the two men who died,
documents showed.

The prosecutors told The Times that the charges filed against former Bagram
interrogators "were based on acts which exceeded the scope of the tactics
permissible even under the referenced memorandum.

"Consequently," they said, "the memorandum has no legal relevance to the Bagram
prosecutions." They did not answer questions about whether the harsher tactics
were improperly used at Bagram or whether they might have contributed to the two
deaths.

Shackling 'Looked Bad'

The prosecutors had perhaps the hardest time with Bagram's uncertain rules in
the case of Captain Beiring, the only officer to face criminal charges.

Captain Beiring, the military police company commander, was charged with one
count of making a false statement to investigators and two of dereliction of
duty. Prosecutors said he had failed to properly train and supervise soldiers in
the legal use of force and "the approved tactics, techniques and procedures in
detainee operations."

Colonel Berg, the judge who reviewed pretrial evidence, ruled that the
dereliction charge was too broad and too vague, and he noted that the overhead
chaining of detainees was "an approved practice" that was at least "acquiesced
in by higher commands." But he cited a more basic problem with the accusation.

"The government failed to present any evidence of what are 'approved tactics,
techniques and procedures in detainee operations,' " he wrote.

In recommending dismissal of the second dereliction count, Colonel Berg
concluded that although both a senior detention officer and one of the command-
staff lawyers at Bagram had instructed Captain Beiring to stop shackling
prisoners after the death of Mr. Habibullah, the officers' reasons "were not
based on law, regulation or policy." Rather, the two officers suggested in their
testimony, they had acted simply because the shackling "looked bad."

In an interview, Captain Beiring acknowledged that Mr. Dilawar, even if he was
unruly, had not represented much of a threat to his soldiers, some of whom, he
said, "clearly chose to do wrong."

"Soldiers probably got tired of his [expletive]," he said. "Others probably
said, 'Let's shut him up.' He was thrashing about. Was he posing a death threat?
Probably not. But are you going to take a spit in the face? I'm not."

In the Afghan village where Mr. Dilawar lived, there has been little news of the
Bagram trials. But members of his family responded serenely when told about the
results of the prosecutions.

"We do not think that people should be in prison," said one of Mr. Dilawar's
brothers, Shahpoor. "My brother is dead. If they arrest 10,000 Americans, what
good will that do me?

"I am angry with them, but this was the will of God," he added. "God is great,
and God will punish them."

*


New York Times --

February 9, 2006

TOUGH U.S. STEPS IN HUNGER STRIKE AT CAMP IN CUBA

By Tim Golden

http://www.nytimes.com/2006/02/09/politics/09gitmo.html

United States military authorities have taken tougher measures to force-feed
detainees engaged in hunger strikes at Guantanamo Bay, Cuba, after concluding
that some were determined to commit suicide to protest their indefinite
confinement, military officials have said.

In recent weeks, the officials said, guards have begun strapping recalcitrant
detainees into "restraint chairs," sometimes for hours a day, to feed them
through tubes and prevent them from deliberately vomiting afterward. Detainees
who refuse to eat have also been placed in isolation for extended periods in
what the officials said was an effort to keep them from being encouraged by
other hunger strikers.

The measures appear to have had drastic effects. The chief military spokesman at
Guantanamo, Lt. Col. Jeremy M. Martin, said yesterday that the number of
detainees on hunger strike had dropped to 4 from 84 at the end of December.

Some officials said the new actions reflected concern at Guantanamo and the
Pentagon that the protests were becoming difficult to control and that the death
of one or more prisoners could intensify international criticism of the
detention center. Colonel Martin said force-feeding was carried out "in a humane
and compassionate manner" and only when necessary to keep the prisoners alive. H
e said in a statement that "a restraint system to aid detainee feeding" was
being used but refused to answer questions about the restraint chairs.

Lawyers who have visited clients in recent weeks criticized the latest measures,
particularly the use of the restraint chair, as abusive.

"It is clear that the government has ended the hunger strike through the use of
force and through the most brutal and inhumane types of treatment," said Thomas
B. Wilner, a lawyer at Shearman & Sterling in Washington, who last week visited
the six Kuwaiti detainees he represents. "It is a disgrace."

The lawyers said other measures used to dissuade the hunger strikers included
placing them in uncomfortably cold air-conditioned isolation cells, depriving
them of "comfort items" like blankets and books and sometimes using riot-control
soldiers to compel the prisoners to sit still while long plastic tubes were
threaded down their nasal passages and into their stomachs.

Officials of the military and the Defense Department strongly disputed that they
were taking punitive measures to break the strike. They said that they were
sensitive to the ethical issues raised by feeding the detainees involuntarily
and that their procedures were consistent with those of federal prisons in the
United States. Those prisons authorize the involuntary treatment of hunger
strikers when there is a threat to an inmate's life or health.

"There is a moral question," the assistant secretary of defense for health
affairs, Dr. William Winkenwerder Jr., said in an interview. "Do you allow a
person to commit suicide? Or do you take steps to protect their health and
preserve their life?"

Dr. Winkenwerder said that after a review of the policy on involuntary feeding
last summer Pentagon officials came to the basic conclusion that it was ethical
to stop the inmates from killing themselves.

"The objective in any circumstance is to protect and sustain a person's life,"
he said.

Some international medical associations and human rights groups, including the
World Medical Association, oppose the involuntary feeding of hunger strikers as
coercive.

Lawyers for the detainees, although troubled by what they said were earlier
reports of harsh treatment of the hunger strikers, have generally not objected
to such actions when necessary to save their clients.

The Guantanamo prison, which is holding some 500 detainees, has been beset by
periodic hunger strikes almost since it was established in January 2002 to hold
foreign terror suspects. At least one detainee who went on a prolonged hunger
strike was involuntarily fed through a nasal tube in 2002, military officials
said.

Since last year, the protests have intensified, a sign of what defense lawyers
say is the growing desperation of the detainees. In a study released yesterday,
two of those lawyers said Pentagon documents indicated that the military had
determined that only 45 percent of the detainees had committed some hostile act
against the United States or its allies and that only 8 percent were fighters
for Al Qaeda.

After dozens of detainees began joining a hunger strike last June, military
doctors at Guantanamo asked Pentagon officials to review their policy for such
feeding. Around that time, officials said, the Defense Department also began
working out procedures to deal with the eventual suicide of one or more
detainees, including how and where to bury them if their native countries
refused to accept their remains.

"This is just a reality of long-term detention," a Pentagon official said. "It
doesn't matter whether you're at Leavenworth or some other military prison. You
are going to have to deal with this kind of thing."

Military officials and detainees' lawyers said the primary rationale for the
hunger strikes had evolved since last summer. In June and July, they said, the
detainees were mostly complaining about their conditions at Guantanamo.

Several lawyers said that military officers there had negotiated with an
English-speaking Saudi detainee, Shaker Aamer, who is thought to be a leader of
the inmates, and that the detainees had agreed to stop their hunger strike in
return for various concessions.

Military officials denied that such negotiations had occurred. But military
officials and the lawyers agreed that when another wave of hunger strikes began
in early August they were more generally focused on the indefinite nature of the
detentions and that it was harder for the authorities there to address.

Colonel Martin said the number of hunger strikers peaked around Sept. 11 at 131,
but added that he could not speculate about why other than to note that "hunger
striking is an Al Qaeda tactic used to elicit media attention and also to bring
pressure on the U.S. government."

Until yesterday, Guantanamo officials had acknowledged only having forcibly
restrained detainees to feed them a handful of times. In those cases, the
officials said, doctors had restrained detainees on hospital beds using Velcro
straps.

Two military officials, who insisted on anonymity because they were not
authorized to discuss the question, said that the use of restraint chairs
started after it was found that some hunger strikers were deliberately vomiting
in their cells after having been tube-fed and that their health was growing
precarious.

In a telephone interview yesterday, the manufacturer of the so-called Emergency
Restraint Chair, Tom Hogan, said his small Iowa company shipped five $1,150
chairs to Guantanamo on Dec. 5 and 20 additional chairs on Jan. 10, using a
military postal address in Virginia. Mr. Hogan said the chairs were typically
used in jails, prisons and psychiatric hospitals to deal with violent inmates or
patients.

Mr. Hogan said that he did not know how they were used at Guantanamo and that
had not been asked how to use them by military representatives.

Detainees' lawyers said they believed that the tougher approach to the hunger
strikes was related to the passage in Congress of measure intended to curtail
the detainees' access to United States courts.

Federal district courts have put aside most lawyers' motions on the detainees'
treatment until questions about applying the measure have been litigated.

"Because of the actions in Congress, the military feels emboldened to take more
extreme measures vis-à-vis the hunger strikers," said one lawyer, Sarah Havens
of Allen & Overy. "The courts are going to stay out of it now."

Mr. Wilner, who was among the first lawyers to accept clients at Guantanamo and
represented them in a case in 2004 before the Supreme Court, said a Kuwaiti
detainee, Fawzi al-Odah, told him last week that around Dec. 20, guards began
taking away items like shoes, towels and blankets from the hunger strikers.

Mr. Odah also said that lozenges that had been distributed to soothe the hunger
strikers' throats had disappeared and that the liquid formula they were given
was mixed with other ingredients to cause diarrhea, Mr. Wilner said.

On Jan. 9, Mr. Odah told his lawyers, an officer read him what he described as
an order from the Guantanamo commander, Brig. Gen. Jay W. Hood of the Army,
saying hunger strikers who refused to drink their liquid formula voluntarily
would be strapped into metal chairs and tube-fed.

Mr. Odah said he heard "screams of pain" from a hunger striker in the next cell
as a thick tube was inserted into his nose. At the other detainee's urging, Mr.
Odah told his lawyers that he planned to end his hunger strike the next day.

Another lawyer, Joshua Colangelo-Bryan, said one of his three Bahraini clients,
Jum'ah al-Dossari, told him about 10 days ago that more than half of a group of
34 long-term hunger strikers had abandoned their protest after being strapped in
restraint chairs and having their feeding tubes inserted and removed so
violently that some bled or fainted.

"He said that during these force feedings too much food was given deliberately,
which caused diarrhea and in some cases caused detainees to defecate on
themselves," Mr. Colangelo-Bryan added. "Jum'ah understands that officers told
the hunger strikers that if they challenged the United States, the United States
would challenge them back using these tactics."

*


Washington Post --

February 5, 2006

SURVEILLANCE NET YIELDS FEW SUSPECTS

NSA's Hunt for Terrorists Scrutinizes Thousands
of Americans, but Most Are Later Cleared

By Barton Gellman, Dafna Linzer and Carol D. Leonnig

http://www.washingtonpost.com/wp-dyn/content/
article/2006/02/04/AR2006020401373.html

Intelligence officers who eavesdropped on thousands of Americans in overseas
calls under authority from President Bush have dismissed nearly all of them as
potential suspects after hearing nothing pertinent to a terrorist threat,
according to accounts from current and former government officials and private-
sector sources with knowledge of the technologies in use.

Bush has recently described the warrantless operation as "terrorist
surveillance" and summed it up by declaring that "if you're talking to a member
of al Qaeda, we want to know why." But officials conversant with the program
said a far more common question for eavesdroppers is whether, not why, a
terrorist plotter is on either end of the call. The answer, they said, is
usually no.

Fewer than 10 U.S. citizens or residents a year, according to an authoritative
account, have aroused enough suspicion during warrantless eavesdropping to
justify interception of their domestic calls, as well. That step still requires
a warrant from a federal judge, for which the government must supply evidence of
probable cause.

The Bush administration refuses to say -- in public or in closed session of
Congress -- how many Americans in the past four years have had their
conversations recorded or their e-mails read by intelligence analysts without
court authority. Two knowledgeable sources placed that number in the thousands;
one of them, more specific, said about 5,000.

The program has touched many more Americans than that. Surveillance takes place
in several stages, officials said, the earliest by machine. Computer-controlled
systems collect and sift basic information about hundreds of thousands of faxes,
e-mails and telephone calls into and out of the United States before selecting
the ones for scrutiny by human eyes and ears.

Successive stages of filtering grow more intrusive as artificial intelligence
systems rank voice and data traffic in order of likeliest interest to human
analysts. But intelligence officers, who test the computer judgments by
listening initially to brief fragments of conversation, "wash out" most of the
leads within days or weeks.

The scale of warrantless surveillance, and the high proportion of bystanders
swept in, sheds new light on Bush's circumvention of the courts. National
security lawyers, in and out of government, said the washout rate raised fresh
doubts about the program's lawfulness under the Fourth Amendment, because a
search cannot be judged "reasonable" if it is based on evidence that experience
shows to be unreliable. Other officials said the disclosures might shift the
terms of public debate, altering perceptions about the balance between privacy
lost and security gained.

Air Force Gen. Michael V. Hayden, the nation's second-ranking intelligence
officer, acknowledged in a news briefing last month that eavesdroppers "have to
go down some blind alleys to find the tips that pay off." Other officials,
nearly all of whom spoke on the condition of anonymity because they are not
permitted to discuss the program, said the prevalence of false leads is
especially pronounced when U.S. citizens or residents are surveilled. No
intelligence agency, they said, believes that "terrorist . . . operatives inside
our country," as Bush described the surveillance targets, number anywhere near
the thousands who have been subject to eavesdropping.

The Bush administration declined to address the washout rate or answer any other
question for this article about the policies and operations of its warrantless
eavesdropping.

Vice President Cheney has made the administration's strongest claim about the
program's intelligence value, telling CNN in December that eavesdropping without
warrants "has saved thousands of lives." Asked about that Thursday, Hayden told
senators he "cannot personally estimate" such a figure but that the program
supplied information "that would not otherwise have been available." FBI
Director Robert S. Mueller III said at the same hearing that the information
helped identify "individuals who were providing material support to terrorists."

Supporters speaking unofficially said the program is designed to warn of
unexpected threats, and they argued that success cannot be measured by the
number of suspects it confirms. Even unwitting Americans, they said, can take
part in communications -- arranging a car rental, for example, without knowing
its purpose -- that supply "indications and warnings" of an attack. Contributors
to the technology said it is a triumph for artificial intelligence if a fraction
of 1 percent of the computer-flagged conversations guide human analysts to
meaningful leads.

Those arguments point to a conflict between the program's operational aims and
the legal and political limits described by the president and his advisers. For
purposes of threat detection, officials said, the analysis of a telephone call
is indifferent to whether an American is on the line. Since Sept. 11, 2001, a
former CIA official said, "there is a lot of discussion" among analysts "that we
shouldn't be dividing Americans and foreigners, but terrorists and non-
terrorists." But under the Constitution, and in the Bush administration's
portrait of its warrantless eavesdropping, the distinction is fundamental.

Valuable information remains valuable even if it comes from one in a thousand
intercepts. But government officials and lawyers said the ratio of success to
failure matters greatly when eavesdropping subjects are Americans or U.S.
visitors with constitutional protection. The minimum legal definition of
probable cause, said a government official who has studied the program closely,
is that evidence used to support eavesdropping ought to turn out to be "right
for one out of every two guys at least." Those who devised the surveillance
plan, the official said, "knew they could never meet that standard -- that's why
they didn't go through" the court that supervises the Foreign Intelligence
Surveillance Act, or FISA.

Michael J. Woods, who was chief of the FBI's national security law unit until
2002, said in an e-mail interview that even using the lesser standard of a
"reasonable basis" requires evidence "that would lead a prudent, appropriately
experienced person" to believe the American is a terrorist agent. If a factor
returned "a large number of false positives, I would have to conclude that the
factor is not a sufficiently reliable indicator and thus would carry less (or
no) weight."

Bush has said his program covers only overseas calls to or from the United
States and stated categorically that "we will not listen inside this country"
without a warrant. Hayden said the government goes to the intelligence court
when an eavesdropping subject becomes important enough to "drill down," as he
put it, "to the degree that we need all communications."

Yet a special channel set up for just that purpose four years ago has gone
largely unused, according to an authoritative account. Since early 2002, when
the presiding judge of the federal intelligence court first learned of Bush's
program, he agreed to a system in which prosecutors may apply for a domestic
warrant after warrantless eavesdropping on the same person's overseas
communications. The annual number of such applications, a source said, has been
in the single digits.

Many features of the surveillance program remain unknown, including what becomes
of the non-threatening U.S. e-mails and conversations that the NSA intercepts.
Participants, according to a national security lawyer who represents one of them
privately, are growing "uncomfortable with the mountain of data they have now
begun to accumulate." Spokesmen for the Bush administration declined to say
whether any are discarded.

New Imperatives

Recent interviews have described the program's origins after Sept. 11 in what
Hayden has called a three-way collision of "operational, technical and legal
imperatives."

Intelligence agencies had an urgent mission to find hidden plotters before they
could strike again.

About the same time, advances in technology -- involving acoustic engineering,
statistical theory and efficient use of computing power to apply them -- offered
new hope of plucking valuable messages from the vast flow of global voice and
data traffic. And rapidly changing commercial trends, which had worked against
the NSA in the 1990s as traffic shifted from satellites to fiber-optic cable,
now presented the eavesdroppers with a gift. Market forces were steering as much
as a third of global communications traffic on routes that passed through the
United States.

The Bush administration had incentive and capabilities for a new kind of
espionage, but 23 years of law and White House policy stood in the way.

FISA, passed in 1978, was ambiguous about some of the president's plans,
according to current and retired government national security lawyers. But other
features of the eavesdropping program fell outside its boundaries.

One thing the NSA wanted was access to the growing fraction of global
telecommunications that passed through junctions on U.S. territory. According to
former senator Bob Graham (D-Fla.), who chaired the Intelligence Committee at
the time, briefers told him in Cheney's office in October 2002 that Bush had
authorized the agency to tap into those junctions. That decision, Graham said in
an interview first reported in The Washington Post on Dec. 18, allowed the NSA
to intercept "conversations that . . . went through a transit facility inside
the United States."

According to surveys by TeleGeography Inc., nearly all voice and data traffic to
and from the United States now travels by fiber-optic cable. About one-third of
that volume is in transit from one foreign country to another, traversing U.S.
networks along its route. The traffic passes through cable landing stations,
where undersea communications lines meet the East and West coasts; warehouse-
size gateways where competing international carriers join their networks; and
major Internet hubs known as metropolitan area ethernets.

Until Bush secretly changed the rules, the government could not tap into access
points on U.S. soil without a warrant to collect the "contents" of any
communication "to or from a person in the United States." But the FISA law was
silent on calls and e-mails that began and ended abroad.

Even for U.S. communications, the law was less than clear about whether the NSA
could harvest information about that communication that was not part of its
"contents."

"We debated a lot of issues involving the 'metadata,' " one government lawyer
said. Valuable for analyzing calling patterns, the metadata for telephone calls
identify their origin, destination, duration and time. E-mail headers carry much
the same information, along with the numeric address of each network switch
through which a message has passed.

Intelligence lawyers said FISA plainly requires a warrant if the government
wants real-time access to that information for any one person at a time. But the
FISA court, as some lawyers saw it, had no explicit jurisdiction over wholesale
collection of records that do not include the content of communications. One
high-ranking intelligence official who argued for a more cautious approach said
he found himself pushed aside. Awkward silences began to intrude on meetings
that discussed the evolving rules.

"I became aware at some point of things I was not being told about," the
intelligence official said.

'Subtly Softer Trigger'

Hayden has described a "subtly softer trigger" for eavesdropping, based on a
powerful "line of logic," but no Bush administration official has acknowledged
explicitly that automated filters play a role in selecting American targets. But
Sen. Arlen Specter (R-Pa.), who chairs the Judiciary Committee, referred in a
recent letter to "mechanical surveillance" that is taking place before U.S.
citizens and residents are "subject to human surveillance."

Machine selection would be simple if the typical U.S. eavesdropping subject took
part in direct calls to or from the "phone numbers of known al Qaeda"
terrorists, the only criterion Bush has mentioned.

That is unusual. The NSA more commonly looks for less-obvious clues in the
"terabytes of speech, text, and image data" that its global operations collect
each day, according to an unclassified report by the National Science Foundation
soliciting research on behalf of U.S. intelligence.

NSA Inspector General Joel F. Brenner said in 2004 that the agency's
intelligence officers have no choice but to rely on "electronic filtering,
sorting and dissemination systems of amazing sophistication but that are
imperfect."

One method in use, the NSF report said, is "link analysis." It takes an
established starting point -- such as a terrorist just captured or killed -- and
looks for associated people, places, things and events. Those links can be far
more tenuous than they initially appear.

In an unclassified report for the Pentagon's since-abandoned Total Information
Awareness program, consultant Mary DeRosa showed how "degrees of separation"
among the Sept. 11 conspirators concealed the significance of clues that linked
them.

Khalid Almihdhar, one of the hijackers, was on a government watch list for
terrorists and thus a known suspect. Mohamed Atta, another hijacker, was linked
to Almihdhar by one degree of separation because he used the same contact
address when booking his flight. Wail M. Alshehri, another hijacker, was linked
by two degrees of separation because he shared a telephone number with Atta.
Satam M.A. Al Suqami, still another hijacker, shared a post office box with
Alshehri and, therefore, had three degrees of separation from the original
suspect.

'Look for Patterns'

Those links were not obvious before the identity of the hijackers became known.
A major problem for analysts is that a given suspect may have hundreds of links
to others with one degree of separation, including high school classmates and
former neighbors in a high-rise building who never knew his name. Most people
are linked to thousands or tens of thousands of people by two degrees of
separation, and hundreds of thousands or millions by three degrees.

Published government reports say the NSA and other data miners use mathematical
techniques to form hypotheses about which of the countless theoretical ties are
likeliest to represent a real-world relationship.

A more fundamental problem, according to a high-ranking former official with
firsthand knowledge, is that "the number of identifiable terrorist entities is
decreasing." There are fewer starting points, he said, for link analysis.

"At that point, your only recourse is to look for patterns," the official said.

Pattern analysis, also described in the NSF and DeRosa reports, does not depend
on ties to a known suspect. It begins with places terrorists go, such as the
Pakistani province of Waziristan, and things they do, such as using disposable
cell phones and changing them frequently, which U.S. officials have publicly
cited as a challenge for counterterrorism.

"These people don't want to be on the phone too long," said Russell Tice, a
former NSA analyst, offering another example.

Analysts build a model of hypothetical terrorist behavior, and computers look
for people who fit the model. Among the drawbacks of this method is that nearly
all its selection criteria are innocent on their own. There is little precedent,
lawyers said, for using such a model as probable cause to get a court-issued
warrant for electronic surveillance.

Jeff Jonas, now chief scientist at IBM Entity Analytics, invented a data-mining
technology used widely in the private sector and by the government. He
sympathizes, he said, with an analyst facing an unknown threat who gathers
enormous volumes of data "and says, 'There must be a secret in there.' "

But pattern matching, he argued, will not find it. Techniques that "look at
people's behavior to predict terrorist intent," he said, "are so far from
reaching the level of accuracy that's necessary that I see them as nothing but
civil liberty infringement engines."

'A Lot Better Than Chance'

Even with 38,000 employees, the NSA is incapable of translating, transcribing
and analyzing more than a fraction of the conversations it intercepts. For
years, including in public testimony by Hayden, the agency has acknowledged use
of automated equipment to analyze the contents and guide analysts to the most
important ones.

According to one knowledgeable source, the warrantless program also uses those
methods. That is significant to the public debate because this kind of filtering
intrudes into content, and machines "listen" to more Americans than humans do.
NSA rules since the late 1970s, when machine filtering was far less capable,
have said "acquisition" of content does not take place until a conversation is
intercepted and processed "into an intelligible form intended for human
inspection."

The agency's filters are capable of comparing spoken language to a "dictionary"
of key words, but Roger W. Cressey, a senior White House counterterrorism
official until late 2002, said terrorists and other surveillance subjects make
frequent changes in their code words. He said, " 'Wedding' was martyrdom day and
the 'bride' and 'groom' were the martyrs." But al Qaeda has stopped using those
codes.

An alternative approach, in which a knowledgeable source said the NSA's work
parallels academic and commercial counterparts, relies on "decomposing an audio
signal" to find qualities useful to pattern analysis. Among the fields involved
are acoustic engineering, behavioral psychology and computational linguistics.

A published report for the Defense Advanced Research Projects Agency said
machines can easily determine the sex, approximate age and social class of a
speaker. They are also learning to look for clues to deceptive intent in the
words and "paralinguistic" features of a conversation, such as pitch, tone,
cadence and latency.

This kind of analysis can predict with results "a hell of a lot better than
chance" the likelihood that the speakers are trying to conceal their true
meaning, according to James W. Pennebaker, who chairs the psychology department
at the University of Texas at Austin.

"Frankly, we'll probably be wrong 99 percent of the time," he said, "but 1
percent is far better than 1 in 100 million times if you were just guessing at
random. And this is where the culture has to make some decisions."

Researcher Julie Tate and staff writer R. Jeffrey Smith contributed to this
report.

*


Newsweek / MSNBC --

PALACE REVOLT

They were loyal conservatives, and Bush appointees. They fought
a quiet battle to rein in the president's power in the war on
terror. And they paid a price for it. A NEWSWEEK investigation.

By Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas

http://www.msnbc.msn.com/id/11079547/site/newsweek/

Feb. 6, 2006 issue - James Comey, a lanky, 6-foot-8 former prosecutor who looks
a little like Jimmy Stewart, resigned as deputy attorney general in the summer
of 2005. The press and public hardly noticed. Comey's farewell speech, delivered
in the Great Hall of the Justice Department, contained all the predictable, if
heartfelt, appreciations. But mixed in among the platitudes was an unusual
passage. Comey thanked "people who came to my office, or my home, or called my
cell phone late at night, to quietly tell me when I was about to make a mistake;
they were the people committed to getting it right -- and to doing the right
thing -- whatever the price. These people," said Comey, "know who they are. Some
of them did pay a price for their commitment to right, but they wouldn't have it
any other way."

One of those people -- a former assistant attorney general named Jack Goldsmith
-- was absent from the festivities and did not, for many months, hear Comey's
grateful praise. In the summer of 2004, Goldsmith, 43, had left his post in
George W. Bush's Washington to become a professor at Harvard Law School. Stocky,
rumpled, genial, though possessing an enormous intellect, Goldsmith is known for
his lack of pretense; he rarely talks about his time in government. In liberal
Cambridge, Mass., he was at first snubbed in the community and mocked as an
atrocity-abetting war criminal by his more knee-jerk colleagues. ICY WELCOME FOR
NEW LAW PROF, headlined The Harvard Crimson.

They had no idea. Goldsmith was actually the opposite of what his detractors
imagined. For nine months, from October 2003 to June 2004, he had been the
central figure in a secret but intense rebellion of a small coterie of Bush
administration lawyers. Their insurrection, described to NEWSWEEK by current and
former administration officials who did not wish to be identified discussing
confidential deliberations, is one of the most significant and intriguing untold
stories of the war on terror.

These Justice Department lawyers, backed by their intrepid boss Comey, had stood
up to the hard-liners, centered in the office of the vice president, who wanted
to give the president virtually unlimited powers in the war on terror. Demanding
that the White House stop using what they saw as farfetched rationales for
riding rough-shod over the law and the Constitution, Goldsmith and the others
fought to bring government spying and interrogation methods within the law. They
did so at their peril; ostracized, some were denied promotions, while others
left for more comfortable climes in private law firms and academia. Some went so
far as to line up private lawyers in 2004, anticipating that the president's
eavesdropping program would draw scrutiny from Congress, if not prosecutors.
These government attorneys did not always succeed, but their efforts went a long
way toward vindicating the principle of a nation of laws and not men.

The rebels were not whistle-blowers in the traditional sense. They did not want
-- indeed avoided -- publicity. (Goldsmith confirmed public facts about himself
but otherwise declined to comment. Comey also declined to comment.) They were
not downtrodden career civil servants. Rather, they were conservative political
appointees who had been friends and close colleagues of some of the true
believers they were fighting against. They did not see the struggle in terms of
black and white but in shades of gray -- as painfully close calls with
unavoidable pitfalls. They worried deeply about whether their principles might
put Americans at home and abroad at risk. Their story has been obscured behind
legalisms and the veil of secrecy over the White House. But it is a quietly
dramatic profile in courage. (For its part the White House denies any internal
strife. "The proposition of internal division in our fight against terrorism
isn't based in fact," says Lea Anne McBride, a spokeswoman for Vice President
Dick Cheney. "This administration is united in its commitment to protect
Americans, defeat terrorism and grow democracy.")

The chief opponent of the rebels, though by no means the only one, was an
equally obscure, but immensely powerful, lawyer-bureaucrat. Intense, workaholic
(even by insane White House standards), David Addington, formerly counsel, now
chief of staff to the vice president, is a righteous, ascetic public servant.
According to those who know him, he does not care about fame, riches or the
trappings of power. He takes the Metro to work, rather than use his White House
parking pass, and refuses to even have his picture taken by the press. His
habitual lunch is a bowl of gazpacho, eaten in the White House Mess. He is
hardly anonymous inside the government, however. Presidential appointees quail
before his volcanic temper, backed by assiduous preparation and acid sarcasm.

Addington, 49, has worked as an adviser to Dick Cheney off and on since Cheney
was a member and Addington a staffer on the House Intelligence Committee in the
mid-'80s. When Cheney became secretary of Defense in the Bush 41 administration,
Addington served at the Pentagon as general counsel. When Cheney became vice
president to Bush 43, he brought Addington into the White House as his lawyer.
Counsel to the vice president is, in most administrations, worth less than the
proverbial bucket of warm spit, but under Prime Minister Cheney, it became a
vital power center, especially after 9/11.

Like his boss, Addington has long believed that the executive branch was
pitifully weakened by the backlash from Vietnam and the Watergate scandal.
Fearful of investigative reporters and congressional subpoenas, soldiers and
spies had become timid -- "risk averse" in bureaucratic jargon. To Addington and
Cheney, the 9/11 attacks -- and the threat of more and worse to come -- were
perfect justification for unleashing the CIA and other long-blunted weapons in
the national-security arsenal. Secretary of Defense Donald Rumsfeld, who
disdains lawyers, was ready to go. So, too, was CIA Director George Tenet -- but
only if his spooks had legal cover, so they wouldn't be left holding the bag if
things went wrong.

Addington and a small band of like-minded lawyers set about providing that cover
-- a legal argument that the power of the president in time of war was virtually
untrammeled. One of Addington's first jobs had been to draft a presidential
order establishing military commissions to try unlawful combatants -- terrorists
caught on the global battlefield. The normal "interagency process" -- getting
agreement from lawyers at Defense, State, the intelligence agencies and so forth
-- proved glacial, as usual. So Addington, working with fellow conservative
Deputy White House Counsel Timothy Flanigan, came up with a solution: cut
virtually everyone else out. Addington is a purist, not a cynic; he does not
believe he is in any way ignoring or twisting the law. It is also important to
note that Addington was not sailing off on some personal crusade; he had the
full backing of the president and vice president, who shared his views. But,
steeped in bureaucratic experience and clear in his purpose, Addington was a
ferocious infighter for his cause. (Addington declined to comment. But McBride,
the vice president's spokeswoman, said, "David Addington has a long,
distinguished record of public service. He's committed to the president's
agenda.")

Inexperienced in national-security law, White House Counsel Alberto Gonzales was
steered by more-expert lawyers like Addington and Flanigan. Others, like John
Bellinger, the National Security Council's top lawyer, were simply not told what
was going on. Addington and the hard-liners had particular disregard for
Bellinger, who was considered a softie -- mocked by Addington because he had
lunch once a month or so with a pillar of the liberal-leaning legal
establishment, the late Lloyd Cutler. When Addington and Flanigan produced a
document -- signed by Bush -- that gave the president near-total authority over
the prosecution of suspected terrorists, Bellinger burst into Gonzales's office,
clearly upset, according to a source familiar with the episode. But it was too
late.

Addington was just getting started. Minimizing dissent by going behind the backs
of bureaucratic rivals was how he played the game. A potentially formidable
obstacle, however, was the Justice Department's Office of Legal Counsel. The OLC
is the most important government office you've never heard of. Among its bosses
-- before they went on the Supreme Court -- were William Rehnquist and Antonin
Scalia. Within the executive branch, including the Pentagon and CIA, the OLC
acts as a kind of mini Supreme Court. Its carefully worded opinions are regarded
as binding precedent -- final say on what the president and all his agencies can
and cannot legally do.

Addington found an ally in an OLC lawyer whose name -- John Yoo -- would later
become synonymous with the notion that power is for the president to use as he
sees fit in a time of war. Shortly after 9/11, Yoo wrote, in a formal OLC
opinion, that Congress may not "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."

The brainy, pleasant and supremely self-confident Yoo became Addington's main
man at Justice, a prolific author of legal opinions granting the president
maximum power during wartime. In the winter of 2002, the CIA began catching top
Qaeda terrorists -- so-called High Value Targets -- like Abu Zubaydah. These
hard-case jihadists proved resistant to normal methods of interrogation. In the
fevered atmosphere of the time, the Bush administration feared a "second wave"
attack from Qaeda sleeper cells still inside the United States. The CIA wanted
legal permission to use "coercive methods."

An August 2002 OLC memo, signed by the then head of the OLC -- Jay Bybee -- but
drafted by Yoo, gave the agency what it needed. The controversial document,
which became famous as the "torture memo" when it leaked two years later,
defined torture so narrowly that, short of maiming or killing a prisoner,
interrogators had a free hand. What's more, the memo claimed license for the
president to order methods that would be torture by anyone's definition -- and
to do it wholesale, and not just in specific cases. A very similar Yoo memo in
March 2003 was even more expansive, authorizing military interrogators
questioning terror suspects to ignore many criminal statutes -- as well as the
strict interrogation rules traditionally used by the military. Secretary of
Defense Rumsfeld put some limits on interrogation techniques, and they were
intended to be used only on true terror suspects. Perhaps inevitably, however,
"coercive interrogation methods" spread from Guantanamo Bay, which housed terror
suspects, into prisons like Abu Ghraib, where detainees could be almost anyone.
(Poor leadership in the chain of command and on the ground was partly to blame,
as well as loose or fuzzy legal rules.) The result: those grotesque images of
Iraqis being humiliated by poorly trained and sadistic American prison guards,
not to mention prisoners who have been brutalized and in some cases killed by
interrogators in Afghanistan and elsewhere.

In the summer of 2003, Yoo, who stands by his body of work, left the Justice
Department and returned to teaching law. His departure came in the midst of a
critical power struggle. Addington and Gonzales had both wanted to make Yoo head
of the OLC when Bybee went off to take a federal judgeship in March 2003, but
Attorney General John Ashcroft balked. Ashcroft's reasons were apparently
bureaucratic. (He declined to speak for this story.) According to colleagues, he
resented Yoo's going behind his back to give the White House a private pipeline
into the OLC. Yoo denied circumventing Ashcroft. "OLC kept the attorney general
or his staff fully informed of all of its work in the war on terrorism," he
said.

Jack Goldsmith, a law professor who was working in the general counsel's office
at the Pentagon, was the eventual compromise choice to head the OLC. Goldsmith
seemed like a natural fit. He was brilliant, a graduate of Oxford and Yale Law
School, and he was conservative. Like Yoo, he was tagged a "New Sovereigntist"
for his scholarly argument that international laws including prohibitions on
human-rights abuses should not be treated as binding law by the U.S. courts.

But somehow, in the vetting of Goldsmith, one of his important views was
overlooked. Goldsmith is no executive-power absolutist. What's more, his friends
say, he did not intend to be a patsy for Addington and the hard-liners around
Cheney. Goldsmith was not the first administration lawyer to push back against
Addington & Co. At the CIA, general counsel Scott Muller had caused a stir by
ruling that CIA agents could not join with the military in the interrogation of
Iraqi prisoners. But Goldsmith became a rallying point for Justice Department
lawyers who had legal qualms about the administration's stance.

Goldsmith soon served notice of his independence. Shortly after taking over the
OLC in October 2003, he took the position that the so-called Fourth Geneva
Convention -- which bars the use of physical or moral coercion on prisoners held
in a militarily occupied country -- applied to all Iraqis, even if they were
suspected of belonging to Al Qaeda.

Addington soon suffered pangs of buyer's remorse over Goldsmith. There was no
way to simply ignore the new head of the OLC. Over time, Addington's heartburn
grew much worse. In December, Goldsmith informed the Defense Department that
Yoo's March 2003 torture memo was "under review" and could no longer be relied
upon. It is almost unheard-of for an administration to overturn its own OLC
opinions. Addington was beside himself. Later, in frequent face-to-face
confrontations, he attacked Goldsmith for changing the rules in the middle of
the game and putting brave men at risk, according to three former government
officials, who declined to speak on the record given the sensitivity of the
subject.

Addington's problems with Goldsmith were just beginning. In the jittery
aftermath of 9/11, the Bush administration had pushed the top-secret National
Security Agency to do a better and more expansive job of electronically
eavesdropping on Al Qaeda's global communications. Under existing law -- the
Foreign Intelligence Surveillance Act, or FISA, adopted in 1978 as a post-
Watergate reform -- the NSA needed (in the opinion of most legal experts) to get
a warrant to eavesdrop on communications coming into or going out of the United
States. Reasoning that there was no time to obtain warrants from a secret court
set up under FISA (a sometimes cumbersome process), the Bush administration
justified going around the law by invoking a post-9/11 congressional resolution
authorizing use of force against global terror. The eavesdropping program was
very closely held, with cryptic briefings for only a few congressional leaders.
Once again, Addington and his allies made sure that possible dissenters were cut
out of the loop.

There was one catch: the secret program had to be reapproved by the attorney
general every 45 days. It was Goldsmith's job to advise the A.G. on the legality
of the program. In March 2004, John Ashcroft was in the hospital with a serious
pancreatic condition. At Justice, Comey, Ashcroft's No. 2, was acting as
attorney general. The grandson of an Irish cop and a former U.S. attorney from
Manhattan, Comey, 45, is a straight arrow. (It was Comey who appointed his
friend -- the equally straitlaced and dogged Patrick Fitzgerald -- to be the
special prosecutor in the Valerie Plame leak-investigation case.) Goldsmith
raised with Comey serious questions about the secret eavesdropping program,
according to two sources familiar with the episode. He was joined by a former
OLC lawyer, Patrick Philbin, who had become national-security aide to the deputy
attorney general. Comey backed them up. The White House was told: no
reauthorization.

The angry reaction bubbled up all the way to the Oval Office. President Bush,
with his penchant for put-down nicknames, had begun referring to Comey as
"Cuomey" or "Cuomo," apparently after former New York governor Mario Cuomo, who
was notorious for his Hamlet-like indecision over whether to seek the Democratic
presidential nomination in the 1980s. A high-level delegation -- White House
Counsel Gonzales and chief of staff Andy Card -- visited Ashcroft in the
hospital to appeal Comey's refusal. In pain and on medication, Ashcroft stood by
his No. 2.

A compromise was finally worked out. The NSA was not compelled to go to the
secret FISA court to get warrants, but Justice imposed tougher legal standards
before permitting eavesdropping on communications into the United States. It was
a victory for the Justice lawyers, and it drove Addington to new levels of
vexation with Goldsmith.

Addington is a hard man to cross. Flanigan, his former White House colleague,
described his M.O.: "David could go from zero to 150 very quickly. I'm not sure
how much is temper and how much is for effect. At a meeting with government
bureaucrats he might start out very calm. Then he would start with the sarcasm.
He could say, 'We could do that, but that would give away all of the president's
power.' All of a sudden here comes David Addington out of his chair. I'd think
to myself we're not just dancing a minuet, there's a little slam dancing going
on here." But Addington "usually had the facts, the law and the precedents on
his side," says Flanigan. He had another huge advantage. He never needed to
invoke Cheney's name, but everyone knew that he spoke for the vice president.

Addington was particularly biting with Goldsmith. During a long struggle over
the legality of the August 2002 torture memo, Addington confronted Goldsmith,
according to two sources who had heard accounts of the conversation: "Now that
you've withdrawn legal opinions that the president of the United States has been
relying on, I need you to go through all of OLC's opinions [relating to the war
on terror] and let me know which ones you still stand by," Addington said.

Addington was taking a clever dig at Goldsmith -- in effect, accusing him of
undermining the entire edifice of OLC opinions. But he was not making a
rhetorical point. Addington began keeping track of opinions in which he believed
Goldsmith was getting wobbly -- carrying a list inside his suit pocket.

Goldsmith was not unmoved by Addington's arguments, say his friends and
colleagues. He told colleagues he openly worried that he might be putting
soldiers and CIA officers in legal jeopardy. He did not want to weaken America's
defenses against another terrorist attack. But he also wanted to uphold the law.
Goldsmith, known for putting in long hours, went to new extremes as he reviewed
the OLC opinions. Colleagues received e-mails from him at all hours of the
night. His family -- his wife, 3-year-old son and newborn baby boy -- saw him
less and less often. Sometimes he would take his older boy down to the Justice
Department's Command Center on Saturdays, just to be near him.

By June 2004, the crisis came to a head when the torture memo leaked to The
Washington Post. Goldsmith was worn out but still resolute. He told Ashcroft
that he was formally withdrawing the August 2002 torture memo. With some
prodding from Comey, Ashcroft again backed his DOJ lawyers -- though he was not
happy to engage in another battle with the White House. Comey, with Goldsmith
and Philbin at his side, held a not-for-attribution background briefing to
announce that the Justice Department was disavowing the August 2002 torture
memo. At the same time, White House officials held their own press conference,
in part to counter what they saw as Comey's grandstanding. A fierce behind-the-
scenes bureaucratic fight dragged on until December, when the OLC issued a new
memo that was hardly to the taste of human-rights activists but contained a much
more defensible (and broader) definition of torture and was far less expansive
about the power of the president to authorize coercive interrogation methods.
The author of the revised memo, senior Justice Department lawyer Daniel Levin,
fought pitched battles with the White House over its timing and contents; yet
again, Comey's intervention was crucial in helping Levin and his allies carry
the day.

By then, Goldsmith was gone from Justice. He and his wife (who is a poet) and
two children had moved to Cambridge, where Goldsmith had taken a job on the
Harvard Law faculty. Other dissenting lawyers had also moved on. Philbin, who
had been the in-house favorite to become deputy solicitor general, saw his
chances of securing any administration job derailed when Addington, who had come
to see him as a turncoat on national-security issues, moved to block him from
promotion, with Cheney's blessing; Philbin, who declined to comment, was
planning a move into the private sector. Levin, whose battles with the White
House took their toll on his political future as well, left for private
practice. (Levin declined to comment.) Comey was working for a defense
contractor.

But the national security/civil liberties pendulum was swinging. Bellinger, who
had become legal adviser to Secretary of State Condoleezza Rice, began pushing,
along with lawyers in the Pentagon, to roll back unduly harsh interrogation and
detention policies. After the electronic eavesdropping program leaked in The New
York Times in December 2005, Sen. Arlen Specter announced that the Senate
Judiciary Committee would hold hearings that will start next week. The federal
courts have increasingly begun resisting absolutist assertions of executive
authority in the war on terror. After Cheney's chief of staff, Scooter Libby,
pleaded not guilty to perjury charges in the Plame leak case, Addington took
Libby's place. He is still a force to be reckoned with in the councils of power.
And he still has the ear of the president and vice president; last week Bush was
out vigorously defending warrantless eavesdropping. But, thanks to a few quietly
determined lawyers, a healthy debate has at last begun.

*

The National Journal --

February 3, 2006

EMPTY EVIDENCE

By Corine Hegland

http://nationaljournal.com/about/njweekly/stories/2006/0203nj4.htm


"If you think of the people down there, these are people, all of whom were
captured on a battlefield. They're terrorists, trainers, bomb makers,
recruiters, financiers, [Osama bin Laden's] bodyguards, would-be suicide
bombers, probably the 20th 9/11 hijacker."

-- Defense Secretary Donald Rumsfeld, June 27, 2005


Some of the men Rumsfeld described -- the terrorists, the trainers, the
financiers, and the battlefield captures -- are indeed at Guantanamo. But
National Journal's detailed review of government files on 132 prisoners who have
asked the courts for help, and a thorough reading of heavily censored
transcripts from the Combatant Status Review Tribunals conducted in Guantanamo
for 314 prisoners, didn't turn up very many of them. Most of the "enemy
combatants" held at Guantanamo -- for four years now -- are simply not the worst
of the worst of the terrorist world.

Many of them are not accused of hostilities against the United States or its
allies. Most, when captured, were innocent of any terrorist activity, were
Taliban foot soldiers at worst, and were often far less than that. And some,
perhaps many, are guilty only of being foreigners in Afghanistan or Pakistan at
the wrong time. And much of the evidence -- even the classified evidence --
gathered by the Defense Department against these men is flimsy, second-, third-,
fourth- or 12th-hand. It's based largely on admissions by the detainees
themselves or on coerced, or worse, interrogations of their fellow inmates, some
of whom have been proved to be liars.

Thomas Wilner, a partner at the Washington law firm Shearman and Stearling who
is representing six Kuwaitis at Guantanamo, summarized the evidence against
them: "Bullshit hearsay.... The information in some cases is, at best, hearsay
allegations [obtained] long after capture."

One thing about these detainees is very clear: Notwithstanding Rumsfeld's
description, the majority of them were not caught by American soldiers on the
battlefield. They came into American custody from third parties, mostly from
Pakistan, some after targeted raids there, most after a dragnet for Arabs after
9/11.

Much of the evidence against the detainees is weak. One prisoner at Guantanamo,
for example, has made accusations against more than 60 of his fellow inmates;
that's more than 10 percent of Guantanamo's entire prison population. The
veracity of this prisoner's accusations is in doubt after a Syrian prisoner,
Mohammed al-Tumani, 19, who was arrested in Pakistan, flatly denied to his
Combatant Status Review Tribunal that he'd attended the jihadist training camp
that the tribunal record said he did.

Tumani's denial was bolstered by his American "personal representative," one of
the U.S. military officers -- not lawyers -- who are tasked with helping
prisoners navigate the tribunals. Tumani's enterprising representative looked at
the classified evidence against the Syrian youth and found that just one man --
the aforementioned accuser -- had placed Tumani at the terrorist training camp.
And he had placed Tumani there three months before the teenager had even entered
Afghanistan. The curious U.S. officer pulled the classified file of the accuser,
saw that he had accused 60 men, and, suddenly skeptical, pulled the files of
every detainee the accuser had placed at the one training camp. None of the men
had been in Afghanistan at the time the accuser said he saw them at the camp.

The tribunal declared Tumani an enemy combatant anyway.

Guilt by Wristwatch

"It's the Salem witchcraft trials," said Marc Falkoff of Covington and Burling's
New York City office, who represents 17 Yemenis, several of them fingered --
falsely, according to Falkoff -- by different accusers. "You get one guy to
start making accusations, and whether it's believable or not doesn't matter."
Front-line military interrogators might know that the accusations are false, but
their superiors reading the files later do not.

The government has given Falkoff access to the complete files for 16 of his
clients. Of those men, he says, "you bring them into any court of law right now,
and a judge is going to release them. It doesn't matter what the standard of
review is going to be -- I'm not even talking about guilt beyond a reasonable
doubt."

At least eight prisoners at Guantanamo are there even though they are no longer
designated as enemy combatants. One perplexed attorney, whose client does not
want public attention, learned that the man was no longer considered an enemy
combatant only by reading a footnote in a Justice Department motion asking a
federal judge to put a slew of habeas corpus cases on hold. The attorney doesn't
know why the man is still in Cuba.

"The people you've been going up against in court have been saying he's the
worst of the worst, Osama's right-hand man," said Anant Raut, an attorney with
the Washington firm of Weil, Gotshal, & Manges. "Then you go in there, and it's
a guy who is as confused as you are as to why he is there." Raut has one client,
a Saudi, who is classified as an enemy combatant largely because he spent a
couple of weeks on a Taliban bean farm. The man says the Taliban imprisoned him
there because they thought he was a Saudi government spy.

National Journal could review only the unclassified parts of detainee files,
consisting of memos, a summary of the evidence, and a transcript of the
Combatant Status Review Tribunal proceeding. But federal courts ordered the
Defense Department to give the volunteer lawyers the classified evidence by
which their clients were found to be enemy combatants. The lawyers cannot
discuss specifics of that evidence, but they uniformly say that nothing
additional is there, just details and sourcing relating to the unclassified
evidence.

"There is no smoking gun," said John Chandler, a partner in the Atlanta office
of Sutherland Asbill & Brennan. One of his Guantanamo clients, picked up in
Pakistan, is designated an enemy combatant in part because he once traveled on a
bus with wounded Taliban soldiers in Afghanistan. The prisoner denies it, saying
it was only a public bus. But then there's the prisoner's Casio watch. According
to the Defense Department files, his watch is similar to another Casio model
that has a circuit board that Al Qaeda has used for making bombs. The United
States is using the Qaeda-favored Casio wristwatch as evidence against at least
nine other detainees. But the offending model is sold in sidewalk stands around
the world and is worn by one National Journal reporter. The primary difference
between Chandler's client's watch and the Casio in question is that the
detainee's model hasn't been manufactured for years, according to the U.S.
military officer who was his personal representative at the tribunal.

Guilt by Association

Baher Azmy of Seton Hall Law School represents Murat Kurnaz, a Turk who is at
Guantanamo. "The government has no case against him," Azmy says. Kurnaz was
plucked off a bus in Pakistan and subsequently accused of being friends with a
suicide bomber. The government did not tell Kurnaz's tribunal that his friend is
alive and therefore could not be the referenced suicide bomber. In March,
Kurnaz's file was accidentally, and briefly, declassified: According to the
Washington Post, it consisted of memos from domestic and foreign intelligence
sources stating that Kurnaz posed no threat. The file, however, contained one
anonymous memo contradicting the rest and claiming he was connected to Al Qaeda.
In January 2005, a federal judge singled out Kurnaz's case as evidence of the
lack of due process in the Guantanamo tribunals. The judge said that his
tribunal had ignored exculpatory evidence and relied instead on the single
anonymous memo that was not credible.

Julia Tarver Mason, a partner with Paul, Weiss, a firm based in New York City,
represents a number of detainees, including a Saudi -- an amputee -- whom
Afghanistan's Northern Alliance turned over to the Americans. The alliance had
taken him from a hospital. She says that the classified evidence against the men
she represents has "details, but no meat." The evidence might say, for example,
that somebody said someone was a member of an aid group, and that aid group has
been known to have some links to Al Qaeda, Mason says. "It's all 12 steps
removed."

George Brent Mickum, a partner with Washington law firm Keller and Heckman,
represents two British residents held at Guantanamo. "I can tell you what's not
there," Mickum said of the classified evidence against his clients. "What's not
there is any evidence that any of my clients was associated with Al Qaeda in any
way." The men were arrested on a business trip to Gambia. According to press
reports, British intelligence suspected at the time that the two men intended to
establish a terrorist training facility there. But today, the accusation against
both men is only that they were associated with Abu Qatada, a radical but
popular London cleric who is now in prison in Britain.

Neither man denies the friendship with Qatada: One of the detainees, Bisher al-
Rawi, says he served as a liaison between Qatada and British intelligence at the
request of the MI-5 domestic intelligence agency. The tribunal for the other
man, Jamil el-Banna, met four times before deciding that he was an enemy
combatant. Even so, el-Banna's personal representative, who had access to the
classified files, objected. The British government was well aware of el-Banna's
actions on British soil, the officer wrote, and the record is "insufficient to
show [the detainee] should be classified as an enemy combatant for his actions
in Gambia."

To Protect the Soldiers

If many of the men held at Guantanamo were not caught in battle, and have not
been tied directly to hostilities against the United States, why are they there?

"I think the standards for sending someone to Guantanamo in 2002 and early 2003
were not as high as they should have been," said Mark Jacobson, who was an
assistant for detainee policy in Rumsfeld's office from November 2002 through
August 2003. When National Journal described some of the men in this story to
Jacobson, he said he suspected that there was more information that was not
referenced in the classified or the declassified files. But if the files were
accurate, he said, "then it's reasonable and likely" that those men were in the
batches taken to Guantanamo early on in 2002.

The filtering process for deciding who was sent to Guantanamo wasn't perfect,
Jacobson said, nor should it have been. To protect U.S. soldiers still fighting
in Afghanistan it was better to err on the side of caution and to send more,
rather than fewer, men to Guantanamo. "If it's the other way around, then you're
doing it wrong."

But nuance didn't exactly survive the air convoys to Cuba. The men in the orange
jumpsuits, President Bush said, were terrorists. They were the most dangerous,
best-trained, vicious killers on the face of the earth, Rumsfeld said. They were
so vicious, if given the chance they would gnaw through the hydraulic lines of a
C-17 while they were being flown to Cuba, said Air Force Gen. Richard Myers,
chairman of the Joint Chiefs of Staff.

But the CIA didn't see it that way. By the fall of 2002, it was common knowledge
around CIA circles that fewer than 10 percent of Guantanamo's prisoners were
high-value terrorist operatives, according to Michael Scheuer who headed the
agency's bin Laden unit through 1999 and resigned in 2004. Most of the men were
probably foot soldiers at best, he said, who were "going to know absolutely
nothing about terrorism." Guantanamo prisoners might be pumped for information
about how they learned to fight, which could help American soldiers facing
trained Islamic insurgencies. But the Defense Department and FBI interrogators
at Guantanamo were interested more in catastrophic terrorism than in combat
practicalities. They kept asking "every one of these guys about 9/11 and when
was the next attack," questions most of these low-level prisoners couldn't
answer, Scheuer said.

Even as the CIA was deciding that most of the prisoners at Guantanamo didn't
have much to say, Pentagon officials were getting frustrated with how little the
detainees were saying. So they ramped up the pressure and gave interrogators
more license.

The questions to the detainees about 9/11 and Al Qaeda and about each other were
so constant, so repetitive, so oppressive that some prisoners, out of
exasperation or fatigue or fear, just gave in and said, sure, I'm a terrorist.
False confessions and false accusations are rampant, according to the lawyers
and the Defense Department records.

One man slammed his hands on the table during an especially long interrogation
and yelled, "Fine, you got me; I'm a terrorist." The interrogators knew it was a
sarcastic statement. But the government, sometime later, used it as evidence
against him: "Detainee admitted he is a terrorist" reads his tribunal evidence.
The interrogators were so outraged that they sought out the detainee's personal
representative to explain it to him that the statement was not a confession.

A Yemeni, whom somebody fingered as a bin Laden bodyguard, finally said in
exasperation during one long interrogation, "OK, I saw bin Laden five times:
Three times on Al Jazeera and twice on Yemeni news." And now his "admission"
appears in his enemy combatant's file: "Detainee admitted to knowing Osama bin
Laden."

By June 2004 conditions were so bad at Guantanamo that the International
Committee of the Red Cross, the only civilian group allowed to meet with
detainees, sent a furious confidential report to the White House charging that
the entire system in Cuba was "devised to break the will of prisoners at
Guantanamo," making them "wholly dependent on their interrogators" through
"humiliating acts, solitary confinement, temperature extremes, use of forced
positions," according to a Defense report leaked to the New York Times. The
report called the operations "tantamount to torture."

Pentagon officials, meanwhile, were citing the "safe, humane, and professional
detention operation at Guantanamo that is providing valuable information in the
war on terrorism."

Wrong Questions, Wrong People

The one question nobody seemed to ask at Guantanamo was whether they were asking
the right questions of the right people in the first place. After all, despite
the rhetoric, most of the men at Guantanamo, or at least the 132 with court
records and the 314 with redacted transcripts, came into American custody by way
of third parties who had their own motivations for turning people in, including
paybacks and payoffs.

In Afghanistan, from late 2001 through the early months of 2003, local and
tribal informers played on America's naivete by reporting their enemies as Qaeda
members, according to a former intelligence operative there. The Americans, upon
investigating, would find that a man did have weapons and assume that he was,
indeed, Al Qaeda. "They wouldn't know the factions," the operative said, "and
they wouldn't think, 'This is Afghanistan. Of course he has weapons.' "

Ignorance of local politics might explain how, for example, an Arabic-speaking
Iraqi Shiite ended up at Guantanamo accused of serving as the regional
intelligence director for the Pashto-speaking Sunni Taliban.

Some of the men at Guantanamo came from targeted, U.S.-guided raids in Pakistani
cities, and the cases against those men tend to be fairly strong. But the
largest single group at Guantanamo Bay today consists of men caught in
indiscriminate sweeps for Arabs in Pakistan. Once arrested, these men passed
through several captors before being given to the U.S. military. Some of the men
say they were arrested after asking for help getting to their embassies; a few
say the Pakistanis asked them for bribes to avoid being turned over to America.

Others assert that they were sold for bounties, a charge substantiated in 2004
when Sami Yousafzai, a Newsweek reporter then stringing for ABC's "20/20,"
visited the Pakistani village where five Kuwaiti detainees were captured. The
locals remembered the men. They had arrived with a larger group of a hundred
refugees a few weeks after Qaeda fighters had passed through. The villagers said
they had offered the group shelter and food, but somebody in the village sold
out the guests. Pretty soon, bright lights came swooping down from the skies.
"Helicopters ... were announcing through loud speakers: 'Where is Arab? Where is
Arab?' And, 'Please, you get $1,000 for one Arab,' " one resident told
Yousafzai.

"The one thing we were never clear of was where they came from," Scheuer said of
the Guantanamo detainees. "DOD picked them up somewhere." When National Journal
told Scheuer that the largest group came from Pakistani custody, he chuckled.
"Then they were probably people the Pakistanis thought were dangerous to
Pakistan," he said. "We absolutely got the wrong people."

The sweeps in Pakistan did pick up a few Qaeda members, but most of them were
low level. People familiar with Pakistani politics agree that in the chaos of
the war, simple foot soldiers or innocent bystanders were more likely to wind up
in American custody than were senior operatives. "It was helter-skelter, and it
was perfectly possible innocents were arrested, while a lot of guilty guys knew
how to evade [capture] and had the means to do so," said Husain Haqqani, an
adviser to three former Pakistani prime ministers who now teaches international
relations at Boston University.

Tribes in the border region and operatives in Pakistan's intelligence service
were historically sympathetic to Al Qaeda and the Taliban. Almost certainly,
they aided senior Qaeda and Taliban members fleeing Afghanistan. At the same
time, Islamabad was eager to strengthen its new alliance with Washington. The
Americans wanted prisoners, and nobody was looking too closely at who those
prisoners were.

Add a healthy dollop of cash spread around by both hunters and prey, and a U.S.
military bureaucracy dedicated to protecting Americans against a threat from an
unfamiliar corner of the world, and you have an unsettling formula for
determining who got caught and who got away. It was "win-win," Haqqani said.
"The Americans get their prisoners, Pakistanis get their praise, the guy who
captures the prisoners gets his reward, and Al Qaeda gets its escape."


*

National Journal --

February 3, 2006

GUANTANAMO'S GRIP

By Corine Hegland

http://nationaljournal.com/about/njweekly/stories/2006/0203nj1.htm

You may have seen an image of Detainee 032. He came to Guantanamo Bay early on,
a slender 18-year-old Yemeni among the anonymous men who knelt, dressed in
orange, for the photographs viewed around the world. He was there on January 27,
2002, when Defense Secretary Donald Rumsfeld took four senators to see the "most
dangerous, best-trained, vicious killers on the face of the earth." He was there
two days later, when President Bush proudly declared in his State of the Union
address that the "terrorists who once occupied Afghanistan now occupy cells at
Guantanamo Bay," and he was there one week later when Bush firmly and finally
ruled out prisoner-of-war status for any of the men held at Guantanamo.

Like many of the men who came handcuffed to Cuba, Detainee 032 has never been
accused of fighting against America. He fell into U.S custody far away from any
battlefield. But today, after four years of interrogations and investigations,
he is still an "enemy combatant," even though he was never an enemy or a
combatant. He is something else: something that might be dangerous or might not.
But he's securely in our custody, and raise your hand if you want to be
responsible for releasing the man who next flies an airplane into a skyscraper.

In some other world, one where the earth still turned west to east instead of
inside out as it did on September 11, 2001, Detainee 032 would be finishing
college this year, like his brother, father, and uncle before him. In this
world, he's beginning his fifth year in prison, with neither charges nor freedom
in sight.

"No Court, Justice, Or Judge ... "

David Remes, a veteran litigator at the Washington law firm Covington and
Burling, spotted the first sign of trouble over his morning coffee on November 8
last year. He was reading a Washington Post story about the Supreme Court's
decision to accept a challenge to the military commissions that had been set up
to decide the fate of a handful of Guantanamo detainees. The military lawyers
defending the men had sued the government, arguing that the proposed proceedings
fell outside any military, criminal, civil, constitutional, or international law
that they had ever heard of. Turning to the jump page of the Post story, Remes
saw an unexpected item in the penultimate paragraph, a report that Sen. Lindsey
Graham, R-S.C., hoped to "add language to the Defense authorization bill that
would eliminate habeas rights for detainees captured during the terrorism fight,
to halt 'the never-ending litigation that is coming from Guantanamo.'"

Outside of the Ten Commandments, laws don't come much more primal than habeas
corpus. It's an ancient bulwark against imprisonment without charge; the
medieval Latin phrase, roughly translated, means "You have the body." Bringing a
habeas petition forces the jailer to explain why he's holding the petitioner.
Habeas corpus predates even the Magna Carta of 1215. The right is enshrined in
the U.S. Constitution, and on June 28, 2004, the Supreme Court said it extended
to the detainees at Guantanamo Bay.

Upon reading of Graham's intention, Remes, who has 17 habeas petitions in court
on behalf of Guantanamo prisoners -- including one for Detainee 032 -- fired off
an e-mail to the 500-plus lawyers volunteering their services for the detainees.
The lawyers started asking around: "Does anybody know anything about this?"

It was the first any of them had heard of Graham's proposal. "We're not
lobbyists, we're litigators," one lawyer later moaned, recounting the ensuing
panic. They had spent a year and a half duking it out in court with the Bush
administration's attorneys, slowly forcing the executive branch to explain why
it was holding individual men -- 132 such explanations so far. Two federal
judges had split over the habeas petitions. One declared that the men had a
right to court; a second said they did not and granted the government's motion
to dismiss the cases. Everybody was waiting for the U.S. Court of Appeals for
the D.C. Circuit to speak about the conflicting decisions, and whatever the
appeals court ruled would likely head to the Supreme Court. The lawyers had
simply never considered any role in this dispute for the third branch of
government, Congress. It was as though they were playing checkers and winning --
only to discover that the game was chess.

The attorneys scrambled into a full-court press, calling their senators, writing
editorials for local and national papers, walking the halls of Congress. But it
was already too late. A week later, Congress passed the Defense authorization
bill, including the amendment, which had been somewhat modified by Sen. Carl
Levin, D-Mich. President Bush signed the bill into law on December 30, and on
January 6 the Justice Department began asking judges to dismiss the cases.

But the game is not over yet. The Graham amendment leaves detainees one avenue
of judicial appeal. They can challenge the process by which they were designated
"enemy combatants" before the U.S. Court of Appeals for D.C., although the
court's jurisdiction stops when the men are removed from Guantanamo Bay. The
appeals court typically takes months, if not years, to work through a case.
Furthermore, a narrow interpretation of the amendment means that the men might
be able to challenge only the process -- the dotting of i's and the crossing of
t's -- not the underlying facts.

More promising for the advocates, the Center for Constitutional Rights, which
has coordinated the pro bono detainee effort since 2002, filed habeas petitions
on behalf of every remaining man at Guantanamo before Bush signed the bill. The
lawyers intend to argue that the legislation can't strip courts of their ability
to hear pending cases, a position bolstered somewhat by Levin's contention that
the bill was never intended to affect those pending petitions.

The amendment's language, though, is stark: "No court, justice, or judge shall
have jurisdiction to hear or consider an application for a writ of habeas corpus
filed by or on behalf of an alien detained by the Department of Defense at
Guantanamo Bay, Cuba."

Law Of War
Most of the lawyers who represent the detainees say they volunteered their
services because of a gut impulse about the importance of due process; they
didn't spend a lot of time musing about why due process exists. Their
prospective clients, they thought, were probably terrorists, the infamous "worst
of the worst." They may have killed Americans in Afghanistan; they may have
helped to kill Americans in America. Still, even terrorists are entitled to
their day in court. Lawyers don't take kindly to being told that their skills
aren't needed.

"These are people picked up off the battlefield in Afghanistan. They weren't
wearing uniforms, they weren't state-sponsored, but they were there to kill,"
President Bush said last June, after Amnesty International criticized Guantanamo
as the "gulag of our times."

But a battlefield implies stark lines of separation: Here, I'm trying to kill
you. There, you're trying to kill me. Battlefield justice is swift, proximity
implies culpability, and buzzing bullets brush aside legal niceties. The farther
you move from the bullets, however, the grayer and messier the lines become. If
the law of war surrounds the battlefield, and you know what to do with men who
are captured with guns in hand, then consider this: More than 3,000 Taliban
fighters surrendered to Gen. Rashid Dostum, a U.S. ally in the anti-Taliban
coalition, at Konduz, Afghanistan, in November 2001. The agreed-upon surrender
terms were that Afghan nationals would be allowed to put down their weapons and
go home but that any foreign fighters would be placed in U.N. custody. Instead,
Dostum, acting in accordance with his historical disregard for human life,
locked them all into airtight container trucks. Some sympathetic Afghan drivers
punched holes in the trucks and passed water to the prisoners when the general's
men weren't looking, a crime for which one driver was brutally beaten, they
later told Newsweek. When the trucks finally arrived at the Sheberghan prison in
northwest Afghanistan, dead bodies spilled out. How many of the men died isn't
clear: Nobody has exhumed their mass grave, although both the United Nations and
the Physicians for Human Rights have identified its location as only a few
minutes from the prison.

Some of the men who survived that convoy are at Guantanamo, and clearly, they
were captured on a battlefield. But if proximity implies culpability, how do you
justify the detention of so many others in Cuba who were arrested far from any
Afghanistan front? How about the aid worker sleeping at home in Karachi,
Pakistan? How about the men arrested in Sarajevo and sent by the Americans to
Guantanamo even though they were clutching their exoneration-from-terrorism
papers issued by the judge who had reviewed their cases? How about miscellaneous
Arabs -- some fighters, some not -- who together with other refugees passed
through Afghanistan's borders as war arrived? How about two British Muslims
arrested as they stepped off a plane in Gambia? How about a hypothetical little
old lady in Switzerland who writes checks to a charity, not knowing it's a
terrorist front, but who a government lawyer nevertheless conceded in court
could be properly termed an enemy combatant? The law of war has come far in a
century of genocides and massacres and nuclear bombs. But has it come so far
that when Al Qaeda made the entire world a battlefield, all of the world's
population fell under the law of war?

As the U.S. government started putting its cards on the table, explaining why
the men described above, and others like them, were still behind bars, the
habeas lawyers started to ponder more deeply what happens to justice -- even in
a wartime setting -- when you strip away due process and the presumption of
innocence.

The government told the lawyers that their clients were all well-trained liars.
But as the lawyers read the files, they started to wonder whether they were
facing an impossible paradox: After all, if a well-trained liar looks like an
innocent man, what does an innocent man look like, if not a well-trained liar?

Detainee 032

Back before everything happened, before the world came unhinged, Detainee 032
was a boy of 16 living in Yemen with his mother, his father, his four sisters,
and his five brothers. His name was Farouq Ali Ahmed, and he studied Islamic law
in high school.

One day, the boy made a solemn vow before God: If it was God's will that Farouq
commit the Koran to memory, more than 6,000 verses in all, he would spend a
year, before he went off to college, teaching the holy texts, in Afghanistan. A
man who did this thing, he'd been told, would be rewarded by God.

Any number of young men in those years set off for Afghanistan with their heads
full of God. The land of the Hindu Kush mountains was a broken Islamic nation,
in desperate need of succor. Some tales say that the Taliban rose to power after
young ethnic Pashtuns executed an Afghan warlord for raping two young girls;
others say a single young boy was the victim. Regardless, the men from the
eastern mountains had rallied under the name of the Taliban, "the students of
the book," and they promised stability and a return of piety in a country sick
to death of two decades of war. Fighting continued in the north, with the
Northern Alliance and the Taliban trading atrocities as they traded ground, but
the land under the Taliban's control remained stable, if barbaric.

World governments shunned the Taliban, which gained diplomatic recognition from
only three countries -- Pakistan, Saudi Arabia, and the United Arab Emirates --
but conservative and radical imams throughout the Islamic world exhorted
followers to help their Afghan brothers defend Islam against those who would
destroy it: the Tajiks, Uzbeks, and apostate Shiite Hazara of the Northern
Alliance. Osama bin Laden came early on; his Arab fighters helped the Taliban
soldiers and trained new arrivals.

Nearly all of the foreigners who came to Afghanistan for jihad came to fight not
the United States but the Northern Alliance. Some put in a few months of
fighting in the north before returning home, their Islamic duty done; some
stayed longer. One man in Guantanamo, asked whether he was a member of Al Qaeda,
replied simply, "I do not know. I am an Arab fighter."

Others didn't go to Afghanistan to fight but to help in other ways, or just to
work and live. The Arabs in Afghanistan, according to Barnett Rubin of New York
University, who has studied the country since the 1980s when the United States
funded the mujahedeen fighting the Soviets, weren't all jihadist fighters, any
more than all Westerners in Afghanistan at the time were CIA operatives --
although many in both groups properly fell under those assumptions. "Arabs went
there for a lot of reasons," Rubin said. "There were humanitarian organizations,
religious missions, and adventure-seekers." A Christian nonprofit group, Save
the Children, had workers providing schooling and medical care. Muslim
organizations ran clinics and schools and dispensed what aid they could; U.N.
workers provided daily bread for more than 3 million people.

And some Arab men went to Afghanistan to teach the Koran in an Islamic land
where few could read the word of God.

Such was Allah's will that in the spring of 2001, Farouq, then 17, set off for
Afghanistan. He took a little room in a big house in Kabul and began teaching 7-
and 8-year-olds, gathering four or five of them together and reciting Allah's
words until the children had them memorized. It wasn't easy work. The Koran is
always taught in Farouq's native language, Arabic, which the Afghan children
didn't understand, and Farouq didn't speak their language. But he had made an
oath to Allah. After a few months, he moved to the city of Khost, where he
continued to teach out of a mosque until the Taliban fell and the cities were no
longer safe for Arabs. One day, his host told him that if he stayed any longer,
his life would be in danger. He had left his passport in Kabul for safekeeping,
but he was told there was no time to get it back. He was taken to Pakistan,
where Afghans have long sought haven from their never-ending wars.

Once across the border, Farouq encountered the Pakistani military. "One of the
soldiers pointed a weapon toward me," Farouq told his Combatant Status Review
Tribunal. The Defense Department established the tribunals after the Supreme
Court ruled that the detainees could challenge their imprisonment. "The
Pakistani officer took me and said, don't be mad at him, we are Muslim, we will
take care of you. He asked me about my parents. He said, you are a kid, you are
going to the Yemen Embassy, and you shouldn't have any problems getting back to
Yemen. After that, they took me to a jail, and there were lots of people. They
put handcuffs on our hands."

Farouq spent time in two Pakistani prisons before the government handed him over
to American forces in Afghanistan. As a foreigner without a passport, he met the
U.S. criteria for Guatanamo, and he was quickly whisked onto a plane headed for
the sunny Caribbean jail that most military people refer to simply as "The Bay."
In the chaos of post-9/11 Afghanistan, military leaders say, there wasn't time
for much consideration of anomalies like Farouq. The United States was pulling
Arabs, Afghans, Pakistanis, Chinese into detention centers, some tens of
thousands in all. U.S. intelligence agents weren't able to debrief every
prisoner; just keeping them secure was difficult, as Afghans gathered outside
temporary holding facilities and clamored for blood. They had never much liked
the foreigners, whose idea of Islamic law was sometimes harsher than even the
Taliban's.

Incentives

But Cuba wasn't much less chaotic. Interpreters were scarce; facilities were
rudimentary, with buckets for drinking and urinating. Background information
about anything -- detainees, Islam, Al Qaeda -- was hard to come by. The
American military officers had been ordered to set up a prison at Guantanamo
practically overnight. Intelligence agents there were asked mainly to certify,
in short order, that the president "had reason to believe" that each shackled
man was involved in terrorism. The agents rapidly reported back, according to
New York Times accounts of that time, that they didn't have enough information
to do even that.

"If we had any information, many times [the detainees] had multiple identities
and multiple passports," recalled Army Maj. Gen. Michael Dunlavey, who headed
the interrogation effort at Guantanamo through November 2002.

So the interrogators started asking routine questions of all the prisoners; many
of the sessions were documented in FBI memos released to the American Civil
Liberties Union under a Freedom of Information Act lawsuit last year: Where are
you from? Why were you in Afghanistan? What do you think of jihad, of Osama bin
Laden? When did you hear about 9/11? What do the detainees talk about? What do
you know of attacks planned on the United States? Have you heard whispers about
attacking the Guantanamo guards? Do you know any of the other detainees? More
than 24,000 interrogations have now taken place among the 800 men who have been
held at The Bay.

The prisoners were shown photographs, too, large books containing mug shots of
all the men held at Guantanamo: Do you recognize any of these men? Can you tell
me about them?

If a man talked, if he cooperated, he received rewards: tobacco, a game of
chess, a milk shake, free time in a room with movies and books, the chance to
have a countryman put into the neighboring cell to ease the loneliness, a
promise of a return home. Simply attending a Qaeda training camp before 9/11, an
FBI interrogator told a detainee, "did not constitute a crime." Just talk to us,
was the interrogators' refrain.

But many of the men wouldn't talk, according to Dunlavey. Citing the so-called
"Manchester document," a Qaeda training manual discovered in England that
advises captured jihadists to lie about their identity, stick to a cover story,
and claim torture, Dunlavey said: "They followed it to a 'T.' "

The Americans came up with inducements for those who wouldn't talk: A prisoner
could be chained in a strobe-lit room with Metallica or Britney Spears playing
at full volume; interrogated for 16 hours straight; awakened every few hours for
a move to a new cell; questioned while shivering in full-blast air conditioning;
stroked by a woman who whispered that his situation was hopeless. In July of
last year, the Defense Department released a report on allegations of abuse at
Guantanamo Bay: All of the above tactics were used, and were acceptable at the
time, according to the report. Other tactics deemed unacceptable were also used,
according to the report, FBI memos, and the International Committee of the Red
Cross.

For one special prisoner who wouldn't talk, interrogators employed further
inducements. Detainee 063, a Saudi, had stubbornly claimed that he had gone to
Afghanistan merely for love of falconry. By July 2002, the FBI knew that in
August 2001 he had flown from a foreign country to Orlando, where a customs
agent turned him away while a cohort, Mohamed Atta, the lead 9/11 hijacker,
waited for him outside. On August 8, 2002, Detainee 063 was moved into an
"isolation facility," where he stayed for the next 160 days, his cell
continually flooded with light, his only human contact with interrogators and
guards. He was questioned for 18 to 20 hours a day for 48 out of 54 straight
days; he was threatened with a menacing dog; he was forced to wear a bra while
thong panties were placed upon his head; he was leashed and ordered to perform
dog tricks; he was stripped naked in front of women; he was taunted that his
sister and mother were whores and that he was gay. Most of these techniques
would later show up in Iraq, at Abu Ghraib prison.

By late November 2002, an FBI agent wrote, Detainee 063, Mohamed al-Kahtani, was
"evidencing behavior consistent with extreme psychological trauma (talking to
nonexistent people, reporting hearing voices, cowering in a corner of his cell
covered with a sheet for hours on end.)"

Think about it. Whether you know something or not, whether you did something or
not, you know what the interrogators want you to say. You know what another has
said about you, because that is the information being presented to you. Was it
the truth? Was it a lie? Did you simply have the bad luck to be the mug shot
under a finger when another inmate wanted to end the endless questions?

You've been told that the truth will set you free, but while interrogators come
and go, you don't know anyone from your home country who has been released. Say
one thing, and you might have a cigarette and a night's sleep. Say nothing, and
you might spend the night shackled to the floor with Metallica ringing in your
ears. Stay neutral, and it's more endless days of monotony, washing on command,
exercising on command, eating on command, losing your mattress and blanket if
you argue with the men in command.

What would you do?

Farouq's Review

On September 27, 2004, Detainee 032, Farouq Ali Ahmed, presented his case to
Combatant Status Review Tribunal Number 8. He came alone except for a U.S.
military officer, his designated "personal representative." Rules forbid
detainees from having attorneys at the tribunal proceedings, although a
practicing lawyer of the Judge Advocate General's Corps, the military's legal
service, generally presents the government's case.

Farouq stood accused of being associated with the Taliban and of having been a
member of Al Qaeda. The government's case cited the following:

* Detainee admitted to giving his passport to a person known by him to be a
member of the Taliban.

* Detainee admitted to lodging at an official Taliban residence in Kabul, with a
Taliban representative he met in Quetta, Pakistan.

* Detainee was observed carrying an AK-47 and wearing fatigues at Osama bin
Laden's private airport in Kandahar, Afghanistan.

* Detainee was captured by Pakistani forces as part of an organized group of 30
mujahedeen after the fall of Tora Bora.

The first two assertions, pointing toward Farouq's association with the Taliban,
came from his own interrogations, when he said he wasn't sure, but, yes, the man
who took him to Kabul and the men in the house where he stayed were probably
members of the Taliban. The last two charges, suggesting that he was associated
with Al Qaeda, Farouq flatly denied. He insisted that he was never at an
airport, that he never carried a gun, and that he was captured alone. It was
hard for him to disprove the charges, however: The details of the accusations
were classified. He wasn't allowed to see them, and he wasn't told where they
had come from.

The vote by the three-member tribunal was unanimous. Detainee 032 was properly
designated as an enemy combatant because "he supported both Al Qaeda and Taliban
forces engaged in hostilities against the United States or its coalition
partners."

How could the officers on the tribunal vote otherwise? Soldiers are soldiers,
not judges. As soldiers, their lives are on the line, they make hard battlefield
decisions, and they are trained to follow orders.

The orders given to the Combatant Status Review Tribunals were as follows: The
men coming before them had been determined to be enemy combatants, "through
multiple levels of review by military officers and Officials of the Department
of Defense." The government's evidence in support of "a determination that the
detainee is an enemy combatant" was subject to a rebuttable presumption that it
was "genuine and accurate" -- in other words, the government's case was presumed
to be true unless the detainee could prove otherwise. The orders did not explain
how a man could rebut evidence if he wasn't allowed to know the details or
source of that evidence.

The officers serving on the tribunals were told that a handful of prisoners
released long before the tribunals began had subsequently appeared in battle,
one bragging of how he had convinced the Americans that he was a goat farmer.
The officers' friends and colleagues in uniform were dying every week in Iraq,
every month in Afghanistan.

And many, many prisoners had said they had gone to Afghanistan to teach the
Koran. "That's part of the 'Big Lie,'" Gen. Dunlavey said, when a reporter
outlined Farouq's case to him. How in the world, the general asked, can an
Arabic speaker teach the Koran to people who don't speak Arabic? "That's like
saying I'm going to memorize the Bible in Hebrew, and then I'm going to the U.S.
to teach it to the common masses," Dunlavey said.

Many of the foreigners in Afghanistan said they came to teach the Koran, the
general continued, a claim he could debunk by asking more questions, as any good
commander mindful of his men's lives would do. "I would ask immediately, do you
speak the language? No? How do you communicate? Where was your supply of Korans?
Where did you learn to teach? There was no purpose, nothing that could be
verified, there was no backup on it."

But Muslims believe that the Koran is the direct word of God, as uttered in
Arabic by Muhammad, according to Akbar Ahmed, chair of Islamic studies at
American University. Islam, unlike Christianity, is not based on accounts
written by disciples years after the prophet died. Muslims believe that every
word in the Koran came from Allah's lips to Muhammad's ears. That's why every
Muslim prays five times a day in the same haunting Arabic syllables. That's why
Taliban textbooks, such as they were, were written in Dari and Pashto -- except
for the Koranic texts, which were in Arabic. That's why the Koran is taught
through recitation. And that's why Muslims who don't understand another word of
Arabic memorize, in their entirety, the sounds of God in Arabic.

And that's why Farouq Ali Ahmed went to Afghanistan in the spring of 2001,
according to two individuals who reviewed his entire file, including the
classified sources and details of the evidence against him.

Farouq's personal representative, an Army officer, was disgusted with the
tribunal's verdict. He took the unusual step of submitting a written protest, a
redacted version of which was filed with Farouq's habeas proceedings.

The government's sole evidence that Farouq had been at bin Laden's airport in
Kandahar was the statement of another detainee. The Army officer, a lieutenant
colonel, had given the tribunal an FBI memo indicating that the other detainee
had lied, not only about Farouq, but about other Yemeni detainees as well. The
other detainee claimed he had seen the Yemenis at times and in places where they
simply could not have been.

"I do feel with some certainty that [the accuser] has lied about other detainees
to receive preferable treatment and to cause them problems while in custody,"
the lieutenant colonel wrote. "Had the tribunal taken this evidence out as
unreliable, then the position we have taken is that a teacher of the Koran (to
the Taliban's children) is an enemy combatant (partially because he slept under
a Taliban roof.)"

What Have We Done?

Farouq's habeas attorneys are Covington and Burling's David Remes and Marc
Falkoff, a young associate who had abandoned pursuit of a Ph.D. in literature
because he found academia "too political" but who brought 17 Guantanamo cases to
the prestigious firm. The lawyers provided National Journal with the
declassified versions of letters they wrote on behalf of 10 detainees, after
viewing their classified files, to the Administrative Review Board. After a
Combatant Status Review Tribunal designates a Guantanamo prisoner as an enemy
combatant, he goes before the review board, which decides whether he should be
released because he is no longer a threat to America.

"Farouq is not now and never has been associated with Al Qaeda," the letter from
his attorneys read. "The only evidence of such an association comes from a
proven liar and from another detainee who was abused and coerced into making
statements inculpating other men." The identity of the "proven liar," the man
also referred to in Farouq's personal representative's memo, was redacted from
the attorneys' letter, but that of the "abused and coerced" detainee was not:
Detainee 063, Mohamed al-Kahtani. At some point after facing a snarling dog,
donning women's underwear, and gibbering under a sheet, Kahtani had apparently
pointed to a mug shot of Farouq and said he was one of the 30 mujahedeen
intercepted at the border after the battle of Tora Bora.

The Covington and Burling lawyers flew to Yemen to meet with Farouq's family, a
step the Defense Department had not taken. Farouq's account of how he came to
Afghanistan, they wrote to the board, was the truth.

Farouq wasn't the only one of the lawyers' clients fingered by Kahtani. Remes
and Falkoff cited Detainee 063 as a source of the allegations against two of
their other clients, as well. In the cases of two clients, including Farouq,
they cited the same snitch identified in Farouq's personal representative's memo
as the source of allegations. On behalf of another detainee, the lawyers
identified yet another snitch, who had reportedly told tales during physically
severe questioning in Afghanistan.

Falkoff and Remes, who looked into all of their clients' stories in Yemen,
maintain that none of them ever fought against America or ever thought to fight
against America. The men's families, in contact with their loved ones only
through Red Cross letters passed through U.S. military censors, had
independently given the lawyers accounts of how the men came to be in
Afghanistan that matched the stories later revealed in U.S. government files.
There was the medical assistant who had previously worked in his brother's
clinic in Yemen and went to Afghanistan to work in a civilian clinic; the boy
who went to Afghanistan to get training to fight in Yemen's tribal wars; the
four men who were told that the Taliban was building a good Islamic society and
so went to defend their Muslim brothers against the murderous warlords of the
Northern Alliance; the man who had imported medicine for a charity in
Afghanistan whose local outposts -- but not the one where he worked -- were
later linked to Al Qaeda. All the tales checked out, the two lawyers say.

Sure, the men and their families could have worked out these cover stories in
advance. Or the stories could be true. It doesn't matter. Once in Guatanamo, by
virtue of having been Arabs in Afghanistan (except for the man who was asleep at
home in Pakistan), the men became enemy combatants and so found themselves
beyond the reach of the American courts, and even beyond the law of war, with
its Geneva Convention protections.

Four years later, they are still there. That's what happens when a man is
presumed guilty until proven innocent; when associating with people who
associate with bad people is sufficient grounds for guilt; when hearsay
statements, whether offered from truth, coercion, or boredom, are taken as
genuine until proven otherwise; when being on the wrong side of a local war when
America enters the picture is proof of fighting against America; when U.S.
military commanders charged with keeping us safe from harm are asked to sit in
judgment.

"Indeed, the evidence considered persuasive by the tribunal is made up almost
entirely of hearsay evidence recorded by unidentified individuals with no
firsthand knowledge of the events they describe," wrote Cmdr. James Crisfield, a
Navy judge advocate general and the legal adviser to the Combatant Status Review
Tribunals, in response to one tribunal decision. Crisfield scolded the tribunal
for rejecting a detainee's request that a witness be allowed to present hearsay
evidence. "There should not be a double standard for the government's ability to
present hearsay and the detainee's ability to present hearsay evidence."

On October 21, 2005, Farouq went before the Administrative Review Board, whose
officers are charged with assessing whether an enemy combatant still presents a
threat to America. As it happened, Farouq's attorneys were in Guantanamo that
day, but his request that they be allowed to accompany him was denied.

The board told Farouq that a new piece of evidence had turned up against him, he
later told his lawyers. Somebody had said, at some point in the past four years,
that they had heard the name "Farouq" over a walkie-talkie during the battle of
Tora Bora.

That may have happened. In fact, it probably did happen. The name "Farouq" is as
common in the Arab world as "George" is in America. It's a first name, in fact,
that is shared by the foreign minister of Syria, the culture minister of Egypt,
the political director of the Palestinian Fatah party, the major general in
charge of earthquake relief in Pakistan. And it is the last name of a top Qaeda
operative who had escaped from the Bagram air base in July 2005.

The Defense Department, following orders and procedures, still considers Farouq
Ali Ahmed, Detainee 032, a threat to America. Two months after his review board,
on December 18, Farouq turned 22, passing his fourth straight birthday behind
bars in Guantanamo.

Who would do differently? Who would raise their hand to release the man who
might fly into the next skyscraper?

*


National Journal --

February 3, 2006

WHO IS AT GUANTANAMO BAY

By Corine Hegland

http://nationaljournal.com/about/njweekly/stories/2006/0203nj2.htm

As a result of the habeas corpus petitions filed by attorneys representing
Guantanamo detainees, the Defense Department has had to file court documents on
132 of the enemy combatants, or just under a quarter of the prison's population.
National Journal undertook a detailed review of the unclassified files to
develop profiles of the 132 men. NJ separately reviewed transcripts for 314
prisoners who pleaded their cases before Combatant Status Review Tribunals at
Guantanamo. Taken together, the information provides a picture of who, exactly,
has been taken prisoner in the war on terror and is being held in an anomalous
U.S. military prison on an island belonging to one of America's bitterest
enemies.

Shortly after the September 11, 2001, terrorist attacks, President Bush issued a
military order that authorized the Defense Department to detain noncitizens
suspected of having ties with Al Qaeda or other terrorists. As a result,
hundreds of so-called "enemy combatants" were rounded up and taken to prisons in
Guantanamo Bay, Cuba. Since early 2002, lawyers working on a volunteer basis
have filed papers with U.S. courts asking the government to explain why it is
holding individual prisoners. These habeas corpus petitions have forced
disclosures by the Defense Department that shed light on some of the details
surrounding the estimated 500 prisoners currently in U.S. captivity.

The Defense Department declined a request to release comparable statistics for
all of the detainees held at Guantanamo Bay.

The first thing that jumps out of the statistics is that a majority of the
detainees in both groups are not Afghans -- nor were they picked up in
Afghanistan as U.S. troops fought the Taliban and Al Qaeda, nor were they picked
up by American troops at all. Most are from Arab countries, and most were
arrested in Pakistan by Pakistani authorities.

Seventy-five of the 132 men, or more than half the group, are -- like Farouq Ali
Ahmed, the subject of National Journal's accompanying story -- not accused of
taking part in hostilities against the United States or its coalition partners.
(The 75 include 10 detainees whom the U.S. government "no longer" considers
enemy combatants, although at least eight of the 10 are still being held at
Guantanamo.) Typically, documents describe these men as "associated" with the
Taliban or with Al Qaeda -- sometimes directly so, and sometimes through only
weak or distant connections. Several men worked for charities that had some ties
to Al Qaeda; Farouq lived in a house associated with the Taliban.

Some of the "associated" men are said to have attended jihadist training camps
before September 11, an accusation admitted by some and denied by others. The
U.S. government says that some of the suspected jihadists trained in
Afghanistan, even though other records show that they had not yet entered the
country at the time of the training camps. Just 57 of the 132 men, or 43
percent, are accused of being on a battlefield in post-9/11 Afghanistan.

The government's documents tie only eight of the 132 men directly to plans for
terrorist attacks outside of Afghanistan.

One of the eight, an Australian fundamentalist Muslim, admitted that he trained
several of the 9/11 hijackers and intended to hijack a plane himself; another of
the eight, a Briton, is said to have targeted 33 Jewish organizations in New
York City. Both men were released to their home governments in January 2005.
Neither one is facing charges at home.

The Australian says he falsely confessed while undergoing torture in Egypt; the
Australian government, which was watching him well before 9/11, has revoked his
passport but has said it lacks sufficient information to press terrorism charges
against him. The British man was cleared after a few hours of questioning in
London.

The remaining six of the eight were arrested in Sarajevo, Bosnia, after being
accused of planning to attack the American Embassy there; the charge was
investigated and dismissed by a judge. The country's human-rights chamber issued
an order prohibiting the men from being taken out of the country. The Americans
seized them anyway.

The Defense Department accusations fall into only two categories -- those who
participated in hostilities and those who did not. But the boundaries between
the two categories can be fuzzy. In the nonhostile category, for example, is a
suspected Qaeda financier picked up in Pakistan. In the hostile group, on the
other hand, are a few men whose most direct link to hostilities appears to be
getting wounded by one of the thousands of American bombs dropped on
Afghanistan.

One hundred and fifteen of the files also note where the detainees were
captured. Only 35 percent of the 115 were arrested in Afghanistan; 55 percent
were captured by Pakistani forces in Pakistan.

At least 39 of the arrests made in Pakistan came in the border region, where
Qaeda fighters, along with civilian Afghan refugees and nonfighting Arabs, were
stampeding out of the country in the fall of 2001, desperate to escape the war.
Many of the enemy combatants arrested in that region say they fled the sudden
chaos of Afghanistan without retrieving their passports and identification
papers and that when they asked to be taken to their embassies, they were taken
to prison instead. Many of the men who detailed their capture described being
taken through one, two, or three Pakistani prisons before they were delivered to
the Americans.

Many, though not all, of the remaining 24 arrests made in Pakistan came in
targeted raids on senior Qaeda leaders between January and September 2002. The
senior suspects captured in these raids immediately disappeared into CIA custody
-- they are not at Guantanamo. But their lesser companions, or others arrested
in the same town on the same night, were delivered to Cuba.

Also in this group are at least three men who were picked off Pakistani buses in
apparently random sweeps for foreigners, and one man who says he answered a
knock on the door of the apartment next to his.

The 314 transcripts released to the Associated Press under a Freedom of
Information Act lawsuit give similar results. The 314 men described there
included 97 Afghans who were arrested in Afghanistan. But they also included 211
foreigners, 152 of whom -- or more than 70 percent -- were arrested outside of
Afghanistan. And 145 of those men were captured in Pakistan.

*


Washington Post --

January 30, 2006

AL QAEDA DETAINEE'S MYSTERIOUS RELEASE
Moroccan Spoke Of Aiding Bin Laden During 2001 Escape

By Craig Whitlock

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/29/
AR2006012901044.html

RABAT, Morocco -- For more than a decade, Osama bin Laden had few soldiers more
devoted than Abdallah Tabarak. A former Moroccan transit worker, Tabarak served
as a bodyguard for the al Qaeda leader, worked on his farm in Sudan and helped
run a gemstone smuggling racket in Afghanistan, court records here show.

During the battle of Tora Bora in December 2001, when al Qaeda leaders were
pinned down by U.S. forces, Tabarak sacrificed himself to engineer their escape.
He headed toward the Pakistani border while making calls on Osama bin Laden's
satellite phone as bin Laden and the others fled in the other direction.

Tabarak was captured and taken to the U.S. Navy base at Guantanamo Bay, Cuba,
where he was classified as such a high-value prisoner that the Pentagon
repeatedly denied requests by the International Committee of the Red Cross to
see him. Then, after spending almost three years at the base, he was suddenly
released.

Today, the al Qaeda loyalist known locally as the "emir" of Guantanamo walks the
streets of his old neighborhood near Casablanca, more or less a free man. In a
decision that neither the Pentagon nor Moroccan officials will explain publicly,
Tabarak was transferred to Morocco in August 2004 and released from police
custody four months later.

Tabarak's odyssey from Afghanistan to Guantanamo and back to his native land
illustrates the grit and at times fanatical determination of one bin Laden
recruit. Yet his story also shows how little is known publicly about al Qaeda
figures who were captured after the Sept. 11, 2001, attacks on New York and the
Pentagon. Major gaps remain in his account, and terrorism experts and
intelligence officials continue to debate whether he was a member of al Qaeda's
inner circle or its rank and file.

His case also highlights mysteries of U.S. priorities in deciding who to keep
and who to let go. As the Pentagon gears up to hold its first military tribunals
at Guantanamo after four years of preparations, it has released a prisoner it
called a key operative. At the same time, it retains under heavy guard men whose
background and significance are never discussed.

Eighteen months after he left Guantanamo, Tabarak, 50, still faces minor
criminal offenses in Rabat, the capital, such as passport forgery and
conspiracy. But his attorney predicts that it's only a matter of time before the
case is dropped and all allegations of terrorist activities are dismissed.

The attorney, Abdelfattah Zahrach, said his client's importance as an al Qaeda
figure has been exaggerated, although he acknowledged that Tabarak knew bin
Laden and worked for one of his companies.

"He was in bin Laden's environment, but he didn't play an operational role,"
Zahrach said. "Do you think that if he was really the bodyguard of bin Laden
that the Americans would have let him come back to Morocco?"
A Family Affair


A review of Moroccan court documents, including records of his interrogations by
Moroccan investigators, shows the U.S. military had good reason to consider
Tabarak a valuable catch. In addition to his firsthand knowledge of how bin
Laden survived Tora Bora, he had worked for the al Qaeda leader since 1989 and
was often at his side as he built the terrorist network from bases in
Afghanistan, Pakistan and Sudan.

According to the documents, details of which other foreign intelligence
officials confirmed, Tabarak served as a jack-of-all-trades for members of the
inner circle. For several years, he received his orders and a regular salary
from Saeed Masri, an al Qaeda financier, military training camp leader and
relative of bin Laden.

Tabarak also dedicated his family to the cause. One daughter, Asia, married a
top al Qaeda operations commander, Abu Feraj Libi, who was captured in Pakistan
in May 2005 and is blamed for assassination plots against Pakistan's president,
Gen. Pervez Musharraf.

A son, Omar, fought alongside the Taliban in Afghanistan in late 2001 and was
captured by Afghan allies of the Americans. When he was released in a prisoner
swap, bin Laden threw a feast to celebrate, according to Tabarak's statements to
interrogators.

Defense Department officials declined to say why Tabarak was released from
Guantanamo, in August 2004, when he and four other Moroccan detainees were
handed over to authorities in Rabat. "The decision to transfer or release a
detainee is based on many factors, including whether the detainee is of further
intelligence value to the United States and whether the detainee is believed to
pose a continuing threat to the United States if released," said Navy Lt. Cmdr.
J.D. Gordon, a Pentagon spokesman.

According to interviews in Rabat with people who are familiar with Tabarak's
case, however, Moroccan officials had pressed the U.S. military for many months
to hand over Tabarak, arguing that they would have a better chance of persuading
him to reveal secrets about al Qaeda.

Moroccan interrogators visited Tabarak and other Moroccan detainees at
Guantanamo on two occasions and urged them to cooperate, according to his
attorney and two fellow prisoners. "They came to see us and brought us coffee
and sandwiches," said Mohammed Mazouz, one of the Moroccans who was later
released with Tabarak. "But the Americans, they would just abuse us."

During a courtroom appearance in Rabat last year, Tabarak looked gaunt and wore
a black baseball cap low on his forehead. After consenting to an interview
through his attorney, he changed his mind at the last minute; guards in the
courthouse audibly warned him not to speak with an American reporter.

In interviews with Arab journalists, Tabarak has given conflicting accounts,
sometimes denying membership in al Qaeda or ties to bin Laden. But interrogation
records show that he has described in detail to authorities a long and intimate
connection with the network.

He left Morocco in 1989, he has said, on the advice of a mentor from a
Casablanca mosque who urged him to become involved with Islamic fighters who
were battling the communist-backed Afghan government.

After first making a pilgrimage to Saudi Arabia, Tabarak recounted, he traveled
to Pakistan, a staging area for guerrillas fighting in Afghanistan, and joined
bin Laden's network. He received military training at two camps near Khost,
Afghanistan, and met with bin Laden at a guest house in the Pakistani city of
Peshawar.

Tabarak told his interrogators that he received the equivalent of $250 a month
to help funnel foreign fighters into Afghanistan. When Pakistani authorities
decided to crack down on outsiders in their country, he followed bin Laden to
Sudan. There he worked on a farm raising cattle, served as a bodyguard and
performed other tasks.

By the time bin Laden returned to Afghanistan in 1996, Tabarak was taking on
more important roles. He said he worked for a while in a "precious stones"
smuggling operation that raised money for al Qaeda. Eventually, he joined bin
Laden's personal security detail, accompanying the Saudi on trips across the
country to meet with other figures from al Qaeda and the Taliban movement.
Escape From Tora Bora


Tabarak said he had no warning of the Sept. 11, 2001, attacks but helped protect
bin Laden after U.S. forces went to war in Afghanistan the following month. He
said he spent 20 days hiding with bin Laden and other al Qaeda leaders in Tora
Bora, in rugged mountainous terrain near the Pakistani border, as U.S. forces
and their Afghan militia proxies closed in.

According to Moroccan and other foreign intelligence officials, Tabarak
sacrificed himself so the others could escape. He took bin Laden's satellite
phone, which the al Qaeda leader apparently assumed was being tracked by U.S.
spy technology, and walked toward the Pakistani border as the al Qaeda
leadership fled in the opposite direction. The ruse worked, although Tabarak and
others were captured.

"I escaped as part of a group that included mostly Saudis and Yemenis towards
Pakistan, until we were arrested by Pakistani authorities at a border crossing
point and then afterwards handed over to American authorities," he told Moroccan
interrogators in August 2004.

Zahrach, Tabarak's attorney, confirmed that his client was caught near the
border and handed over to the U.S. military. But he denied Tabarak helped bin
Laden escape from Tora Bora. He dismissed the interrogation reports as
forgeries. He said Moroccan officials have no evidence for their allegations but
are too embarrassed to admit it.

"They have to charge him with something in Morocco to prevent him from talking,"
Zahrach said. "They have to keep him tied up in court and keep him under
pressure." Tabarak's next scheduled court appearance is Friday in Rabat.
Officials with the Moroccan Communications Ministry declined to comment on the
case.

Mohammed Darif, a Moroccan terrorism analyst and political science professor,
said Moroccan intelligence officials have overstated Tabarak's role in al Qaeda.
He said bin Laden relied almost exclusively on fellow Saudis and tribal
relatives from Yemen to provide for his personal safety and was unlikely to
accept an uneducated, poor Moroccan into his inner circle.

"People who have known him all along say that Tabarak was a serious player but
that perhaps his reputation is a little overblown," said Darif, who interviewed
Tabarak after his release from Guantanamo. "He may have been a loyal worker, but
he's not sophisticated. When you talk to him, you see pretty clearly that the
guy does not have a strong personality."

But other intelligence sources in Europe and the Middle East suggest that his
behavior at Guantanamo is further confirmation of his importance. There, they
say, he developed a reputation as a tough-minded leader among the detainees.
Moroccan officials have described him as an "emir" of the camp who resisted his
American interrogators and catalyzed hunger strikes among prisoners.

Defense Department memos obtained by The Washington Post in 2004 show that
Guantanamo officials repeatedly prevented inspectors from the International
Committee of the Red Cross from seeing Tabarak.

Although the Red Cross was supposed to have access to all persons in military
custody, Maj. Gen. Geoffrey Miller told Red Cross inspectors on Oct. 9, 2003,
that they could not visit Tabarak or three other detainees "because of military
necessity," according to the memos. On a follow-up visit Feb. 2, 2004, Miller
informed Red Cross officials that they could see anyone at the base, except
Tabarak. Miller once again cited "military necessity." A Defense Department
spokesman declined to comment on the memos.

Tabarak has told his attorney and other detainees that he was kept in an
isolation cell during most of his stay at Guantanamo. For about one year, he
said, he was interrogated only while blindfolded, so he could not see his
captors or even know for certain if he was in Cuba or another country.

[ Staff writer Scott Higham and researcher Julie Tate in Washington contributed
to this report. ]

© 2006 The Washington Post Company

*


Los Angeles Times --

January 29, 2006

CIA EXPANDS USE OF DRONES IN TERROR WAR

* 'Targeted killing' with missile-firing Predators is a way to hit Al Qaeda
in remote areas, officials say. Host nations are not always given notice.

By Josh Meyer

http://www.latimes.com/news/nationworld/world/
la-fg-predator29jan29,0,5819230.story

WASHINGTON -- Despite protests from other countries, the United States is
expanding a top-secret effort to kill suspected terrorists with drone-fired
missiles as it pursues an increasingly decentralized Al Qaeda, U.S. officials
say.

The CIA's failed Jan. 13 attempt to assassinate Al Qaeda second-in-command Ayman
Zawahiri in Pakistan was the latest strike in the "targeted killing" program, a
highly classified initiative that officials say has broadened as the network
splintered and fled Afghanistan.

The strike against Zawahiri reportedly killed as many as 18 civilians, many of
them women and children, and triggered protests in Pakistan. Similar U.S.
attacks using unmanned Predator aircraft equipped with Hellfire missiles have
angered citizens and political leaders in Afghanistan, Iraq and Yemen.

Little is known about the targeted-killing program. The Bush administration has
refused to discuss how many strikes it has made, how many people have died, or
how it chooses targets. No U.S. officials were willing to speak about it on the
record because the program is classified.

Several U.S. officials confirmed at least 19 occasions since Sept. 11 on which
Predators successfully fired Hellfire missiles on terrorist suspects overseas,
including 10 in Iraq in one month last year. The Predator strikes have killed at
least four senior Al Qaeda leaders, but also many civilians, and it is not known
how many times they missed their targets.

Critics of the program dispute its legality under U.S. and international law,
and say it is administered by the CIA with little oversight. U.S. intelligence
officials insist it is one of their most tightly regulated, carefully vetted
programs.

Lee Strickland, a former CIA counsel who retired in 2004 from the agency's
Senior Intelligence Service, confirmed that the Predator program had grown to
keep pace with the spread of Al Qaeda commanders. The CIA believes they are
branching out to gain recruits, financing and influence.

Many groups of Islamic militants are believed to be operating in lawless pockets
of the Middle East, Asia and Africa where it is perilous for U.S. troops to try
to capture them, and difficult to discern the leaders.

"Paradoxically, as a result of our success the target has become even more
decentralized, even more diffused and presents a more difficult target -- no
question about that," said Strickland, now director of the Center for
Information Policy at the University of Maryland.

"It's clear that the U.S. is prepared to use and deploy these weapons in a
fairly wide theater," he said.

Current and former intelligence officials said they could not disclose which
countries could be subject to Predator strikes. But the presence of Al Qaeda or
its affiliates has been documented in dozens of nations, including Somalia,
Morocco and Indonesia.

High-ranking U.S. and allied counter-terrorism officials said the program's
expansion was not merely geographic. They said it had grown from targeting a
small number of senior Al Qaeda commanders after the Sept. 11 attacks to a more
loosely defined effort to kill possibly scores of suspected terrorists,
depending on where they were found and what they were doing.

"We have the plans in place to do them globally," said a former counter-
terrorism official who worked at the CIA and State Department, which coordinates
such efforts with other governments.

"In most cases, we need the approval of the host country to do them. However,
there are a few countries where the president has decided that we can whack
someone without the approval or knowledge of the host government."

The CIA and the Pentagon have deployed at least several dozen of the Predator
drones throughout Iraq, Afghanistan and along the borders of Pakistan, U.S.
officials confirmed. The CIA also has sent the remote-controlled aircraft into
the skies over Yemen and some other countries believed to be Al Qaeda havens,
particularly those without a strong government or military with which the United
States can work in tandem, a current U.S. counter-terrorism official told The
Times.

Such incursions are highly sensitive because they could violate the sovereignty
of those nations and anger U.S. allies, the official said, speaking on condition
of anonymity.

The Predator, built by General Atomics Aeronautical Systems Inc. of San Diego,
is a slender craft, 27 feet long with a 49-foot wingspan. It makes a clearly
audible buzzing sound, and can hover above a target for many hours and fly as
low as 15,000 feet to get good reconnaissance footage. They are often operated
by CIA or Pentagon officials at computer consoles in the United States.

The drones were designed for surveillance and have been used for that purpose
since at least the mid-1990s, beginning with the conflict in the Balkans. After
the Sept. 11 attacks, President Bush ordered a rapid escalation of a project to
arm the Predators with missiles, an effort that had been mired in bureaucratic
squabbles and technical glitches.

Now the Predator is an integral part of the military's counter-insurgency
effort, especially in Iraq. But the CIA also runs a more secretive -- and more
controversial -- Predator program that targets suspected terrorists outside
combat zones.

The CIA does not even acknowledge that such a targeted-killing program exists,
and some attacks have been explained away as car bombings or other incidents. It
is not known how many militants or bystanders have been killed by Predator
strikes, but anecdotal evidence suggests the number is significant.

In some cases, the destruction was so complete that it was impossible to
establish who was killed, or even how many people.

Among the senior Al Qaeda leaders killed in Predator strikes were military
commander Mohammed Atef in Afghanistan in November 2001 and Qaed Sinan Harithi,
a suspected mastermind of the bombing of the U.S. destroyer Cole in Yemen, in
2002. Last year, Predators took out two Al Qaeda leaders in Pakistan: Haitham
Yemeni in May and Abu Hamza Rabia in December, one month after another missile
strike missed him.

The attack on Rabia in North Waziristan also killed his Syrian bodyguards and
the 17-year-old son and the 8-year-old nephew of the owner of the house that was
struck, according to a U.S. official and Amnesty International, which has lodged
complaints with the Bush administration following each suspected Predator
strike.

Another apparent Predator missile strike killed a former Taliban commander, Nek
Mohammed, in South Waziristan in June 2004, along with five others. A local
observer said the strike was so precise that it didn't damage any of the
buildings around the lawn where Mohammed was seated. At the time, the Pakistani
army said Mohammed had been killed in clashes with its soldiers.

Michael Scheuer, the former chief of the CIA's special unit hunting Osama bin
Laden and Al Qaeda, said he was aware of at least four successful targeted-
killing strikes in Afghanistan alone by November 2004, when he left the agency.

In the attack on Zawahiri, word spread quickly that a U.S. plane had been
buzzing above the target beforehand. Afterward, villagers reportedly found
evidence of U.S. involvement.

The missiles intended for Bin Laden's chief deputy incinerated several houses in
Damadola, a village near Pakistan's northwestern border with Afghanistan. But
Zawahiri was not there, U.S. officials now believe. Pakistan said it was
investigating whether the strikes killed other high-ranking militants.

There were some well-publicized failures before the Zawahiri strike. In February
2002, a Predator tracked and killed a tall man in flowing robes along the
Pakistan-Afghanistan border. The CIA believed it was firing at Bin Laden, but
the victim turned out to be someone else.

Before the Sept. 11 attacks, the U.S. government had targeted Bin Laden in at
least one Cruise missile strike. But the CIA was reluctant to engage in targeted
killings because it said the laws regarding assassinations were too vague and
the agency could face criminal charges.

Even today, documents and interviews suggest that the U.S. policy on targeted
killings is still evolving.

Some critics, including a U.N. human rights watchdog group and Amnesty
International, have urged the Bush administration to be more open about how it
decides whom to kill and under what circumstances.

A U.N. report in the wake of the 2002 strike in Yemen called it "an alarming
precedent [and] a clear case of extrajudicial killing" in violation of
international laws and treaties. The Bush administration, which did not return
calls seeking comment for this story, has said it does not recognize the mandate
of the U.N. special body in connection with its military actions against Al
Qaeda, according to Amnesty International.

"Zawahiri is an easy case. No one is going to question us going after him," said
Juliette N. Kayyem, a former U.S. government counter-terrorism consultant and
Justice Department lawyer. "But where can you do it and who can you do it
against? Who authorizes it? All of these are totally unregulated areas of
presidential authority."

"Paris, it's easy to say we won't do it there," said Kayyem, now a Harvard
University law professor specializing in terrorism-related legal issues. "But
what about Lebanon?"

Paul Pillar, a former CIA deputy counter-terrorism chief, said the authority
claimed by the Bush administration was murky.

"I don't think anyone is dealing with solid footing here. There is legal as well
as operational doctrine that is being developed as we go along," Pillar said.
"We are pretty much in uncharted territory here."

Pillar, who was also the CIA's National Intelligence Officer for the Near East
and South Asia before retiring in mid-2005, said there had long been
disagreement within the intelligence community over whether targeted killings
were legally permissible, or even a good idea.

Before Sept. 11, Pillar said, CIA officers were issued vaguely worded guidelines
that seemed to give them authority to kill Bin Laden, but only during an attempt
to capture him.

The 9/11 commission investigating the attacks in New York and Washington
concluded that such vaguely worded laws and policies gave little reassurance to
those who might be pulling the trigger that they would not face disciplinary
action -- or even criminal charges.

Although presidents Ford and Reagan issued executive orders in 1976 and 1981
prohibiting U.S. intelligence agents from engaging in assassinations, the Bush
administration claimed the right to kill suspected terrorists under war powers
given to the president by Congress after the Sept. 11 attacks.

It is the same justification Bush has used for a recently disclosed domestic
spying program that has the National Security Agency eavesdropping on American
citizens without warrants, and a CIA "extraordinary rendition" program to seize
suspected terrorists overseas and transport them to other countries with
reputations for torture.

Strickland, like some other officials, said the Predator program served as a
deterrent to foreign governments, militias and other groups that might be
harboring Al Qaeda cells.

"You give shelter to Al Qaeda figures, you may well get your village blown up,"
Strickland said. "Conversely, you have to note that this can also create local
animosity and instability."

The CIA's lawyers play a central role in deciding when a strike is justified,
current and former U.S. officials said. The lawyers analyze the credibility of
the evidence, how many bystanders might be killed, and whether the target is
enough of a threat to warrant the strike.

Other agencies, including the Justice Department, are sometimes consulted,
Strickland said. "The legal input is broad and extensive," he said.

Scheuer said he believed the process was too cumbersome, and that the agency had
lost precious opportunities to slay terrorists because it was afraid of killing
civilians.

But others said they had urged the Bush administration to adopt a multi-agency
system of checks and balances similar to that used by Israel, which for decades
has convened informal tribunals to assess each proposed targeted killing before
carrying it out.

Amos N. Guiora, a senior Israeli military judge advocate who participated in
such tribunals, said that although the failed Zawahiri strike itself appeared to
be justifiable, the result suggested a lack of adequate deliberations on the
quality of the intelligence.

"I think [the] attack was a major screw-up, because so many kids died. It raises
questions about the entire process," said Guiora, who now a professor at Case
Western Law School and director of its Institute for Global Security Law and
Policy.

"It shows the absolute need to have a well-thought-through and developed process
that examines the action from a legal perspective, an intelligence perspective
and an operational perspective. Because the price you pay here is that you are
going to have to be hesitant the next time you pull the trigger."

*


Newsday / AP --

January 23, 2006
NEW YORK JUDGE ORDERS RELEASE OF GUANTANAMO DETAINEE IDs
By Larry Neumeister

http://www.newsday.com/news/local/wire/newyork/
ny-bc-ny--guantanamo-detain0123jan23,0,552014.story

NEW YORK -- The Department of Defense must release the identities of hundreds of
Guantanamo Bay, Cuba, detainees, a judge said Monday.

U.S. District Judge Jed S. Rakoff said the government must provide The
Associated Press with unredacted copies of transcripts and documents related to
558 military hearings in which detainees were permitted to challenge their
incarcerations. Most of the hundreds of prisoners at the U.S. prison camp in
eastern Cuba have been held since investigations were begun into the Sept. 11,
2001, attacks without being charged or publicly identified, which has troubled
human rights groups.

The AP filed its Freedom of Information Act lawsuit seeking the documents last
year. The government then turned over the transcripts of 558 tribunals but
redacted facts about each detainee's identity.

Earlier this month, the judge rejected government arguments that the detainees'
names should be kept secret to protect their privacy rights. He gave the
government an opportunity to change his mind a final time.

In response, the government argued that releasing the identities could subject
the families, friends and associates of the detainees to embarrassment and
retaliation.

In a written ruling Monday, the judge said the government had never properly
raised the argument before and, even if it had, it must be rejected because the
government had not remotely proved it.

"It is theoretically possible, of course, that the family of a detainee may not
want his or their names and whereabouts revealed because of fears of
embarrassment or retaliation; but how can this be said to be a privacy interest,
when they never had any reasonable expectation that the detainee and/or his
captors would not reveal his and their names?" the judge wrote.

He noted that each detainee was given the option not to testify before the
tribunal and was not required to divulge identifying information about religion,
background or associates.

He said the government had not introduced "the slightest evidence" that
detainees or their families were likely to suffer embarrassment or retaliation
but had relied upon "wholly conclusory and grossly speculative assertions."

Many of the detainees were captured in Afghanistan. They are from there, the
Persian Gulf, Russia and other countries.

A spokeswoman for federal prosecutors, Heather Tasker, said Monday the
government had not seen the ruling and had no response.

AP attorney David A. Schulz said the government was expected to appeal.

"The judge has rejected the defense department's effort to use the privacy
interests of detainees to prevent the public from learning information about the
actions taken at Guantanamo Bay," he said. "The order is important because Judge
Rakoff rejected the notion that the department was entitled to categorically
exempt from disclosure personal information from all detainees on blanket claims
of privacy."

The judge gave the government until Wednesday to announce its intention to
appeal and to ask him to suspend his order until an appeal can be heard by the
2nd U.S. Circuit Court of Appeals.

Last year, the judge ordered the government to ask each detainee whether he or
she wanted personal identifying information to be turned over to the AP as part
of the lawsuit.

Of 317 detainees who received the form, 63 said yes, 17 said no, 35 returned the
form without answering and 202 declined to return the form.

The judge said none of the detainees, not even the 17 who said they did not want
their identities exposed, had a reasonable expectation of privacy during the
tribunals.

*


Los Angeles Times --

CHARGES SOUGHT AGAINST OFFICER AT ABU GHRAIB

* Lt. Col. Steven L. Jordan would be the first to be held criminally liable in
the Iraq abuse scandal. His supervisor, granted immunity, may testify.

By Richard A. Serrano and Mark Mazzetti

http://www.latimes.com/news/nationworld/world/la-fg-
abuse13jan13,0,6680380.story?coll=la-headlines-world

WASHINGTON -- Army investigators have recommended that criminal charges be filed
against a supervising military officer in the abuse of detainees at Iraq's Abu
Ghraib prison, according to Pentagon officials and legal documents obtained
Thursday.

Charges against Lt. Col. Steven L. Jordan, who was the top Army supervisor at
the prison where detainees were frequently abused and sexually humiliated, would
mark the first instance in which the Pentagon has sought to hold an officer
criminally liable for the scandal that ignited a sharp anti-U.S. furor in the
Arab world in 2004.

Nine low-level members of an Army Reserve military police unit have been
convicted in connection with the abuse.

A Pentagon official said the Army's Criminal Investigative Command had reviewed
allegations against Jordan and recommended that he be charged with offenses that
might include dereliction of duty and making false statements to military
investigators about incidents at the prison outside Baghdad.

In addition, documents in upcoming courts-martial of two Army dog handlers
accused of threatening detainees with their animals show that Jordan's immediate
supervisor, Col. Thomas M. Pappas, has been granted immunity from prosecution so
he can testify in "any court-martial resulting from the investigation into
alleged offenses committed by Lt. Col. Steven L. Jordan."

A Pentagon official, speaking on condition of anonymity, said: "Jordan is the
next guy in the scope. They're looking to prosecute him."

In the cases against the dog handlers, Army Maj. Gen. Geoffrey Miller, a top
detention commander who led a team of experts to Abu Ghraib in 2003 to overhaul
interrogation procedures, invoked his right against self-incrimination when
called to testify.

Miller's attorney denied that the move suggested possible wrongdoing.

The Pentagon official said that Miller, once considered a rising star in the
Army, was planning to retire.

Jordan, who could not be reached for comment, has been reassigned to duty in
Washington. His commanding officer, Maj. Gen. Guy C. Swan III, must decide
whether to act on the Criminal Investigative Command's recommendations to bring
charges. If action is taken, Jordan could face a court-martial and a possible
prison term.

Alan Chaset, a Washington lawyer who represented Jordan after revelations of the
abuses at Abu Ghraib, said that the officer had been waiting for months to learn
whether he would be prosecuted.

"It's moved from the CID stage, and I wish I could speculate, but I have no
specific information" about whether he will be charged, Chaset said.

At Abu Ghraib, Jordan supervised the interrogation task force. According to
accounts by those around him, Jordan failed to follow Army guidelines on the
legal rights of prisoners, not reporting abuses he witnessed, The Times has
previously reported.

He was described as someone who worked to exhaustion, sometimes losing his
composure and contributing to the chaotic situation at the crowded, understaffed
facility.

Jordan earlier invoked his right against self-incrimination when called to
testify against lower-ranking soldiers in pretrial hearings in the Abu Ghraib
case. In sworn statements, however, he has said that Pappas gave him too much
authority and never properly supervised him. Pappas in his own sworn statements
has called Jordan a "loner" and said "I failed in not reining him in."

In nonjudicial punishment, Pappas last year was formally reprimanded and fined
$8,000 for his role at the prison. He did not face criminal charges. His
immunity deal in the dog handlers' case was reached Tuesday, the same day that
Miller invoked his right against self-incrimination. Miller's decision and
Pappas' immunity offer were first reported Thursday by the Washington Post.

Miller's visit to Abu Ghraib in 2003 has been the subject of intense scrutiny,
and several officers implicated in the scandal -- including Pappas -- have said
that Miller recommended using military guard dogs to intimidate prisoners during
interrogations. Miller has denied doing so in statements to military
investigators.

Maj. Michelle Crawford, a lawyer for the general, wrote in a statement to
reporters Thursday that Miller stood by his previous testimony to investigators
and to the Senate Armed Services Committee.

Crawford added that neither she nor Miller were aware of Pappas' immunity deal
when Miller invoked his right against self-incrimination.

Last year, an investigation into abuses at the U.S. military prison at
Guantanamo Bay, Cuba, recommended that Miller be reprimanded for failing to
monitor abusive interrogation sessions. Miller was the commander of the
Guantanamo prison at the time the interrogations occurred.

The recommendation for a reprimand was rejected by Miller's supervising officer,
Army Gen. Bantz J. Craddock.

*


New York Times --

January 10, 2006
DETAINEE CASE HITS ON LIMITS OF PRESIDENCY
By Linda Greenhouse

http://www.nytimes.com/2006/01/10/politics/politicsspecial1/10scotus.html

WASHINGTON, Jan. 9 - When the Supreme Court agreed two months ago to hear an
appeal from a Yemeni detainee at Guantanamo Bay, Cuba, named Salim Ahmed Hamdan,
it was evident that an important test of the limits of presidential authority to
conduct the war on terror was under way. Now that the final briefs have begun to
arrive at the court, in advance of a late March argument, the dimensions of that
test appear greater than ever.

Several of the two dozen briefs filed on Mr. Hamdan's behalf late Friday address
an issue that was not even part of the case when the justices granted review on
Nov. 7: whether the court has jurisdiction to proceed or whether Congress, in a
measure that President Bush supported and signed into law on Dec. 30, has
succeeded in shutting the federal courthouse doors on Mr. Hamdan and 150 other
Guantanamo detainees whose cases are pending at various levels of the federal
court system.

If that proved to be the case, the result would be "a nightmare scenario," a
group of prominent law professors told the Supreme Court in one of the briefs.
"The keys to the courthouse will be placed in the exclusive control of the
executive," the brief says, creating "the legal equivalent of incommunicado
detention of Japanese aliens in a relocation camp in Idaho." The professors were
Burt Neuborne and Norman Dorsen of New York University, Judith Resnik of Yale,
and Frank Michelman and David Shapiro of Harvard.

Another brief, filed by the Center for National Security Studies, a civil
liberties group, and the Constitution Project, a bipartisan study group, asserts
flatly that if the new law, the Detainee Treatment Act of 2005, does in fact
strip the Supreme Court of jurisdiction over the Hamdan case, then the law is
unconstitutional.

The Bush administration has not yet responded to such assertions; its brief is
not due until early next month. But it appears both from the president's
statement upon signing the measure, which originated as Section 1005 of a
military spending bill, and from motions the administration has filed in the
lower courts that government lawyers do take the view that the new law applies
to pending cases and that the justices must dismiss the Hamdan appeal.

When he signed the bill into law, Mr. Bush added a written statement that said
"the executive branch shall construe Section 1005 to preclude the federal courts
from exercising subject matter jurisdiction over any existing or future action,
including applications for writs of habeas corpus, described in Section 1005."

The section provides that "no court, justice or judge shall have jurisdiction to
hear or consider" habeas corpus petitions or "any other action" that relates to
"any aspect of the detention" of individuals in military custody at the Navy
base at Guantanamo Bay.

Boiled down, the question is whether this abolition of jurisdiction is
prospective only, or whether it applies to pending cases. If the second case,
the question is whether it applies only to the 150 or so Guantanamo cases
pending in the lower courts, or whether it also divests the Supreme Court of
jurisdiction to hear a case it has already agreed to decide. That conclusion
would have significant implications for the separation of powers, among other
issues.

The statute itself does not address these issues in its text; the accompanying
legislative history contains statements from Democratic senators describing the
bill as prospective only, and Republicans saying that it applies to pending
cases.

The case before the Supreme Court, Hamdan v. Rumsfeld, No. 05-184, challenges
the validity of the military commission procedure by which the administration
proposes to try Mr. Hamdan and, currently, 11 other Guantanamo detainees on
various terrorism-related charges.

Lawyers for Mr. Hamdan, once a bodyguard and driver for Osama bin Laden in
Afghanistan, are arguing that the president lacked explicit and inherent
authority to establish the military commissions. They also say the commissions'
procedures fail to give defendants the protections to which civilian, military
and international law entitle them.

In urging the justices to reject the case last fall, the administration argued
that Mr. Hamdan should have to wait until after his trial to challenge the
commission. But a pretrial challenge to the validity of detention is at the
"historical core" of the writ of habeas corpus, the Center for National Security
Studies-Constitution Project brief argues.

The brief notes that Congress has suspended the availability of habeas corpus
only three times in the country's history, each time explicitly and for a
limited period, and that the new law did not assert the existence of a
"rebellion or invasion," the ground specified by the Constitution for suspending
habeas corpus.

A brief submitted by a committee of the Bar of England and Wales, describing the
ancient origins of habeas corpus, says that in "innumerable cases stretching
back to early times," English courts have treated military detentions as "core
areas requiring habeas review."

*


New York Times Magazine --

January 8, 2006
THE BUSH ADMINISTRATION VS. SALIM HAMDAN
By Jonathan Mahler

http://www.nytimes.com/2006/01/08/magazine/08yemen.html

In 1996, Salim Hamdan, a 26-year-old Yemeni with a thick mustache and kinky
black hair, was working part time as a taxi driver, dividing his modest income
between the mattress he rented in a crowded boardinghouse in the dirty, bustling
city of Sana and his daily supply of khat leaves, the stimulant that most Yemeni
men chew by the fistful. Then one day the low-hanging horizon of his life
lifted: he was recruited for jihad. He joined about 35 other Muslims, mostly
Yemenis, who were preparing to leave for Tajikistan to fight alongside that
country's small Islamic insurgency against its Russian-backed government.

One of the group's leaders was a self-assured young man named Nasser al-Bahri.
Hamdan, an orphaned only child from a rural tribal village in southern Yemen,
was naturally drawn to strong personalities. Although two years his junior, al-
Bahri, who grew up in an upper-middle-class family in Jidda, Saudi Arabia, was
far more worldly and sophisticated than Hamdan and was without question the most
educated person he had ever met. Al-Bahri had studied business in college, but
he was also deeply steeped in the Koran, having become a devout Muslim as a
teenager in rebellion against his bourgeois upbringing. He spoke comfortably and
forcefully about the plight of Muslims all over the world, and he had traveled
extensively, to places as far as Bosnia and Somalia, to defend his oppressed
Islamic brethren.

Hamdan, who had the rough equivalent of a fourth-grade education, wasn't
especially religious and had no grand plans for his life other than the hope
that he might someday be married, but he nevertheless embraced the idea of
becoming a holy warrior. It didn't hurt that the trip was to be paid for - al-
Bahri told him that the group had raised money from a handful of Saudi-based
Muslim charities - and that Hamdan would also receive a salary.

The jihadis convened in Jalalabad, Afghanistan, and started working their way
north toward Tajikistan, first by jeep and then, when the roads were impassable,
on foot. After six months traversing Afghanistan's mountainous, often snow-
covered terrain, they were turned back at the Tajik border.

At loose ends, one of the jihadis suggested that they go see a man named Osama
bin Laden, a well-known sheik among radical Islamists who led a militant group
of itinerant Muslim holy warriors called Al Qaeda. Having only recently been
expelled from Sudan, bin Laden had relocated to Afghanistan, where he planned to
rebuild Al Qaeda with the help of his new hosts, the Taliban. Bin Laden earned
his reputation during the anti-Soviet campaign in Afghanistan in the 1980's, but
he was now enlisting soldiers for his new crusade to drive the United States
from the Arabian Peninsula.

Al-Bahri, Hamdan and the rest of the group made their way back through
Afghanistan to bin Laden's home in Farm Hada, a village outside Jalalabad, not
far from the Khyber Pass. They arrived in late 1996 shortly before Ramadan, the
holiest time of year. For three days, bin Laden preached to his prospective
recruits about the religious imperative of reversing America's corrosive
presence in the gulf. Seventeen of the original 35 jihadis decided to stay;
Hamdan and al-Bahri were among them.

For the next several years, both men worked for bin Laden, first in Farm Hada,
then, when he relocated for security reasons in 1997, to a better-fortified
compound in the desert outside Kandahar. In 1999, al-Bahri and Hamdan's lives
became further entwined. At bin Laden's urging and with his financial help, they
married Yemeni sisters in Sana and returned to Afghanistan with their new wives.

By Sept. 11, 2001, however, al-Bahri and Hamdan's paths had diverged. Al-Bahri
was in prison in Yemen for his suspected links to Al Qaeda's bombing of an
American Naval destroyer, the U.S.S. Cole, in 2000. Hamdan was still with bin
Laden, though not for long. In late November 2001, with America's military
campaign in Afghanistan well under way, he was picked up near the border of
Pakistan by a group of Afghan warlords. They hogtied him with electrical wire
and within a matter of days turned him over to the Americans for a $5,000
bounty. The interrogations started, and Hamdan was soon identified as Saqr al-
Jedawi, his alias during his years with bin Laden. He spent the next six months
in U.S. prison camps in Bagram and Kandahar, before being flown to Guantanamo
Bay in May 2002.

Today, Salim Hamdan lives in a 6-by-9-foot cell in Guantanamo, awaiting trial by
a special military tribunal established by presidential order in the aftermath
of 9/11. If everything goes according to the government's plans, the Bush
administration will prosecute Hamdan for violating the laws of war by conspiring
to commit acts of terrorism against the United States. The government has
revealed little about its case against Hamdan - my portrait is drawn principally
from his lawyers, family members and al-Bahri - but it has charged him with
serious offenses, including transporting weapons and serving as a bodyguard to
bin Laden. If convicted on all charges, Hamdan could receive a life sentence.

Hamdan's attorneys, a government-appointed Navy lawyer and a professor at
Georgetown University Law Center, don't deny that their client worked directly
for bin Laden, but they play down his importance to Al Qaeda, portraying him as
an employee, an uneducated and far-from-devout driver and mechanic who was
grateful for a paycheck but generally ignorant of the terrorist enterprise for
which he worked. Moreover, they say that the tribunals, known officially as
military commissions, are illegal and have sued the American government to block
them from going forward.

This spring, the detainee's lawyers will have the chance to make their case to
the Supreme Court, when it hears Hamdan v. Rumsfeld. The name alone guarantees
that it will be one of the most closely watched arguments of the year, and the
eventual ruling will have far-reaching implications not just for Hamdan and the
rest of the Guantanamo detainees, but also for presidential war powers and quite
possibly for the future of democracy in the Middle East. If the war on terror
is, at its heart, a battle to show the Islamic world that there is an
alternative to oppressive theocracies and autocratic dictators, nothing is more
important than how the United States government dispenses justice to detainees
like Salim Hamdan. Until now, America's wartime practice has been to hold onto
captured combatants until the end of hostilities, when there is no longer a
threat of them returning to the battlefield. In this case, though, the
battlefield is unmapped and the hostilities could continue for decades. For the
moment, the government has broadly classified nearly all of the more than 500
detainees at Guantanamo as enemy combatants, but eventually it's going to have
to start sorting them out. This will entail answering some difficult questions.
Are all Muslim men who answered the call to jihad equally guilty? Which
detainees represent a threat to the United States? Who is worth prosecuting, and
how?


Just outside the Old City of Sana, a maze of densely packed, intricately adorned
stone houses and centuries-old shops that rise like drip castles from narrow
cobblestone streets, sits the modern Martyrs' Mosque. If the Old City evokes
Yemen's prosperous, cosmopolitan days at the center of the world's spice trade,
the Martyrs' Mosque, an imposing, ash-colored monolith, speaks to its present as
the poorest and most primitive of the Arabian Peninsula states.

The big open square that fronts the mosque is a gathering place for the
dispossessed. Homeless people lie on flattened cardboard boxes with gasoline
cans repurposed as water jugs beside them. Dababs, minivans stuffed with
passengers, career around Sana's crowded streets, jockeying for fares. Drivers
struggle to be heard above the music issuing from loudspeakers on the three-
wheeled cycles pedaled by cassette vendors. The smells of grilling meat and corn
on the cob commingle with perfumed oil, urine and exhaust.

There are no women in sight here, only young men and boys, a reflection of
Yemen's conservative Islamic culture. And although roughly 40 percent of all
Yemeni men are unemployed, everyone here seems to be in a big hurry, hustling
around, often holding hands, always in standard Yemeni dress: sandals, white
robes and Western-style blazers with the labels showing on the outside of the
left sleeve, just above the cuff. Long curved daggers known as jambiyas,
reminders of the country's enduring tribal culture, hang from belts. Cheeks
bulge with khat, which brightens the mood and sends the mind in every direction,
an apt emblem of the combination of aimlessness and restlessness on display.

Ten years ago, Salim Hamdan was one of these men. He was born in about 1970 (no
one, including Hamdan himself, knows for sure), hundreds of miles from Sana in
the Wadi Hadhramaut, a 100-mile oasis in the mountainous desert of southeastern
Yemen. His father was a farmer and shopkeeper, and the family lived modestly in
a small, mud-brick home in a cliff town overhanging the fertile valley below. He
was still a child when his parents died from illness, one a few years after the
other. With no other family nearby, Hamdan went to live with relatives in
Mukalla, a bleak port city of about 150,000 on Yemen's southern coast. By that
point, Hamdan had already quit school, which is not unusual in Hadhramaut, where
the imperatives of helping your family earn money far outweigh the comparatively
abstract virtues of an education.

Within a few years he was on his own, living on the streets of Mukalla and
working odd jobs. In 1990, Yemen, which had long been divided into two separate
nations, the Islamic north and Marxist south, was officially unified. Hamdan,
who was then 20, joined the mass migration north in search of work. There was a
widespread sense that Sana, the new nation's capital, would soon be booming. As
it turned out, the job prospects were not so promising, particularly for someone
with Hamdan's limited qualifications. He soon found his way to the Martyrs'
Mosque - where he picked up work driving a dabab - and then, six years later, to
jihad.

Jihad - literally, "struggle" - is a slippery concept, one that has been
subjected to almost endless interpretation, violent and nonviolent alike,
emanating from a Muslim's basic religious duty to encourage the spread of Islam.
In recent years, though, it often has come to be understood as a violent
religious crusade against the United States. Hamdan and al-Bahri's routes to
jihad could not have been more different, but in many ways each is emblematic of
the men's respective countries, which represent the two biggest contingents at
Guantanamo. In Saudi Arabia, jihad resonated with particular force with the
educated, affluent and devout; in Yemen, it exerted an especially strong pull on
the country's poor. Nearly half of the country's population lives below the
poverty line; unlike its neighbors in the gulf, Yemen has very little oil, and
what it does have is hoarded by the government. "Unless they are the sons of
sheiks or political leaders, the young people have no way to use their
energies," Nabil al-Sofee, a former spokesman for Islah, Yemen's Islamic party,
told me recently in his office in Sana. "The one option that is in front of
anyone who wants to achieve anything is jihad."

Jihad has an almost mythic appeal in Yemen. Its roots run all the way back to
the seventh century, when the Prophet Muhammad is said to have declared, "Allah,
give me fighters from behind me," his back turned conspicuously to Yemen. In its
more modern incarnation, jihad can be traced to 1967, when Yemen was still
divided and the British withdrew from its southern half. Finally free of its
longtime occupiers, South Yemen quickly established ties to the Soviet Union,
Cuba and China, and in 1970 became the Arab world's first Communist state.

South Yemen's new identity inaugurated two decades of hostilities with North
Yemen, a Muslim state whose allegiances were to Saudi Arabia and Egypt. It
didn't take long for North Yemen's rulers - including the president of today's
unified Yemen, Ali Abdullah Saleh - to exploit the conflict's religious
undertones. By the time the Soviets invaded Afghanistan in 1979, many young
North Yemenis already accepted that it was their duty as Muslims to confront
Communist unbelievers. And so, over the next several years, scores of young
Yemeni men answered their clerics' calls for jihad. Afghanistan's mujahedeen
received support from many Arab countries, in addition to the United States, but
the Yemenis were among the fiercest of the so-called Afghan-Arab fighters.
Unlike the jihadis from wealthier states in the Persian Gulf, they were
accustomed to hard living, and the rugged, mountainous terrain of Afghanistan
was similar to that of Yemen.

When the Soviets withdrew from Afghanistan in 1989, the leaders of many Arab
countries, understandably worried about the combustible mix of religious
zealotry and combat experience in which these men had been steeped, discouraged
the jihadis from returning home. North Yemen, for its part, not only welcomed
back its own fighters, it opened its borders to jihadis from other Arab
countries as well. The heroic stature of these fighters was cemented in 1994,
when the still-simmering tensions between Yemen's Islamists and Marxists erupted
into a full-fledged civil war and President Saleh called on the ex-jihadis to
help defeat the Communists. The north emerged victorious, and Saleh rewarded
many of these men for their efforts. For his help mobilizing the troops, Sheik
Abdul Majid al-Zindani, an ex-Arab-Afghan warrior and bin Laden's onetime
spiritual mentor, was awarded the chancellorship of Iman University in Sana, a
platform from which he has since steered countless young Yemeni men toward the
path of jihad.

The Yemeni government did little to stanch the flow of jihadis, even in the face
of increasing international pressure. A consummate pragmatist, President Saleh
gave the U.S. permission to use its ports to refuel in the 1990's, but to the
Arab world he presented himself as a leader who was not afraid to stand up to
the West. In the wake of the attack on the U.S.S. Cole in Yemen in 2000, Saleh
scoffed at rumors that the U.S. was planning to intensify its military presence
in the country: "Yemen is a graveyard for the invaders," he told Al Jazeera.
After 9/11, however, President Saleh went to Washington to pledge his support
for the war on terror. But having spent so many years nurturing and exploiting
the country's culture of jihad, he had to be careful about how he went about
dismantling it. Extraditing Islamic radicals, or even putting them in jail for
more than a couple of years, would provoke the country's powerful extremist
element.

The centerpiece of Saleh's solution was to appoint a respected jurist and
cleric, Hamoud al-Hitar, to meet with imprisoned extremists and persuade them
that Islam does not, in fact, condone acts of terrorism. When I visited al-Hitar
at his heavily guarded home in Sana one night last fall, he explained to me how
the so-called Committee on Thoughtful Dialogue works. He called it "intellectual
surgery" and described it as a simple process: he leads radicals through a
series of questions about their beliefs, using the Koran or the hadith, a
collection of the Prophet Muhammad's teachings, to show them how they have been
misled. At the end of the program, those participants who vow not to take part
in future acts of terrorism are granted presidential pardons and set free. To
the obvious question - Why believe that they'll honor the vow? - Judge al-Hitar
gave the obvious answer: These are men who take their ideology seriously; they
would never sign a pledge renouncing their beliefs if they didn't mean it. A
couple of years ago, President Saleh released hundreds of men with connections
to Al Qaeda under the auspices of Judge al-Hitar's dialogue program. One of
those men was Nasser al-Bahri.


Al-Bahri declined to see me for the better part of the two weeks I spent in
Yemen. Then, the night before I was scheduled to fly home, he agreed to meet me
the following evening at a relative's home in Sana. A tall, rangy man with a
receding hairline and a neatly trimmed beard, al-Bahri looked older than his 33
years. He sat on a floor cushion, his long legs extending from the bottom of his
creaseless white robe. Early in our conversation, which lasted more than five
hours, the power failed. For the rest of the night, the narrow room was
illuminated by two candles. Al-Bahri apologized for excusing himself repeatedly
to urinate, explaining that he was diabetic.

According to al-Bahri, his decision to renounce Al Qaeda and terrorism had
nothing to do with Judge al-Hitar's dialogue program, which he doubts has truly
changed any minds. Rather, he said that during his two years in prison in Yemen,
almost half of which was spent in solitary confinement, he had the chance to do
a lot of reading and thinking. He continues to believe that America is
oppressing and exploiting Muslims, but he no longer accepts that the random
murder of innocent people is a legitimate expression of jihad, which, he said,
"has its time and place, like prayer." There was also the issue of maturity.
"When we reach our 30's, we come to regret what we did in our 20's," he told me
matter-of-factly, like an ex-campus radical reflecting on a minor act of civil
disobedience in his distant past.

Al-Bahri was not eager to talk about Hamdan; because he feels responsible for
his brother-in-law's fate, he said that discussing him was too depressing. Not
surprisingly, what he did say distanced Hamdan from the military operations of
Al Qaeda. Al-Bahri described Hamdan as almost childlike, a cheerful, simple-
minded man. According to al-Bahri, Hamdan at first seemed excited about jihad,
but he lacked both the zeal of a holy warrior and the religious grounding or
inclination to grasp the ideology of the movement. As al-Bahri tells it, Hamdan
went to Tajikistan for jihad but stayed in Afghanistan because working as a
driver and mechanic in bin Laden's motor pool paid better than driving a dabab
in Sana.

If al-Bahri was quick to exonerate Hamdan, he showed no hesitation implicating
himself as a senior member of what may be the most notorious terrorist
organization the world has ever known. Al-Bahri sounded neither nostalgic nor
remorseful talking about his years as one of bin Laden's chief bodyguards; he
could have been a retired executive dispassionately recollecting his years with
the firm. Yet he was, in one sense, cautious: while he was willing to answer any
question I asked, he explicitly disassociated himself from each specific attack
that took place during his time with bin Laden.

Al-Bahri's future had come into focus as a teenager in Jidda, when he first fell
under the influence of radical Saudi clerics. "I saw that my function was to
carry guns and defend Muslims wherever they were," he told me. "That was the
holy work that would lead me to paradise." Having grown up in Saudi Arabia,
Islam's holiest land, he responded personally when he heard bin Laden describe
his country as an agent of the Americans and pledge to drive America from the
Arabian Peninsula. What's more, al-Bahri had left Saudi Arabia for Bosnia in the
early 90's and had been without the guidance of a religious leader ever since.
In bin Laden, al-Bahri said, he had found "a new spiritual father."

Al-Bahri rose quickly through the ranks of Al Qaeda. Under the alias Abu Jandal,
he helped create new training camps that bore little resemblance to the kind he
attended as a young man in Bosnia, where jihadis learned such conventional
skills as assembling and firing weapons and reading maps. The focus now was on
fighting in cities and preparing for martyrdom operations, which meant learning
how to blend in with local populations and attack civilian targets. Bin Laden
was clear about the goals. "He would say over and over again that we must carry
out painful attacks on the United States until it becomes like an agitated
bull," al-Bahri recalled, "and when the bull comes to our region, he won't be
familiar with the land, but we will." During the late 90's, al-Bahri fought with
the Taliban against the Northern Alliance and served as one of bin Laden's
personal bodyguards during his frequent tours of Qaeda training camps around
Afghanistan.

After the attacks on the U.S. embassies in East Africa in the summer of 1998,
al-Bahri said, bin Laden placed him in charge of the organization's guest houses
in Kabul and Kandahar, where it was his duty to help inspire and train new
recruits to undertake terrorist operations against the United States. It was at
this point, al-Bahri says, that he started having second thoughts about Al
Qaeda, not because he doubted its mission, but because he wasn't convinced these
recruits were prepared to carry it out.

Jihad, it occurred to al-Bahri, had evolved from a genuine religious mission to
a cattle call for any and all Muslims. Even years later, having renounced
terrorism, he seemed irritated by what he characterized as Al Qaeda's failures
of management. "We were getting young people who were not committed to jihad,
also very young people, 15 or 16 years old," he told me. "What could we do with
them? I said we should accept only religious young people. Only the religious
understand what jihad means. But my voice was not being heard." Al-Bahri told me
that bin Laden knew he was becoming disillusioned, and that's why he encouraged
him and Hamdan to marry sisters in 1999; in al-Bahri's interpretation, by tying
him to Hamdan, who had fewer options and was thus less likely to leave, bin
Laden would have a better chance of keeping al-Bahri in the fold.

During the summer of 2000, Hamdan and al-Bahri came back to Sana for a brother-
in-law's wedding. Within a matter of weeks, several Qaeda operatives in a small
boat filled with explosives rammed the U.S.S. Cole, which was on a refueling
stop in Yemen. Shortly after the attack, Yemeni intelligence agents started
rounding up suspected extremists. Al-Bahri tried to flee but was arrested at the
airport trying to return to Afghanistan. Hamdan had already taken his wife and
her parents on a pilgrimage to Mecca, and word quickly reached him in Saudi
Arabia that if he came back to Yemen he'd be picked up, too. Instead, he went
back to bin Laden, taking his wife with him.

In the wake of Sept. 11, al-Bahri told me, three F.B.I. agents came to the
prison where he was being held in Yemen to interrogate him. The transcripts from
their interviews are classified, but al-Bahri says they were mainly interested
in the structure and ideology of Al Qaeda. Asked if bin Laden had access to
chemical or nuclear weapons, al-Bahri replied that bin Laden had something far
more powerful: men who are determined to complete their covenant with God and
carry out martyrdom operations against the United States.


Detainees' lawyers estimate that there are currently about 100 Yemeni prisoners
in Guantanamo. If even a fraction of this many Americans had been imprisoned in
a foreign country for four years, the vast majority without charges, there would
be a national outcry. In Yemen, however, most of the detainees' families are
completely in the dark. Half of the people in the country are illiterate. Those
who can read find few stories about Guantanamo. Many of the papers are state-
run, and the rest are under intense pressure to toe the government line.
President Saleh knows that drawing attention to the detainees would only further
inflame anti-American sentiments and in so doing create more problems for him.

A Yemeni human rights group called HOOD has a rough list of Yemenis who are
being held at Guantanamo and has made contact with some of their relatives, but
the families are not in communication with anyone in the U.S. government. The
detainees' defense lawyers periodically come to Yemen to meet with the families
who have authorized them to represent their relatives, though in some cases the
detainees themselves doubt their American lawyers' good intentions. While I was
in Yemen, I spent several days visiting the families of detainees with David H.
Remes, a partner at the Washington firm Covington & Burling, which represents 17
of the Yemenis at Guantanamo. Remes prefaced several of his meetings by saying
that their sons, brothers or husbands would be very angry if they knew he was
there.

Hamdan, too, sent word through his lawyers that he didn't want me to contact his
family, but I was able to get in touch with his wife's brother, Muhammad al-
Qala, through HOOD. Al-Qala, a staff sergeant in the Yemeni army, invited me to
his home to meet his sister, Hamdan's wife, Um Fatima. Since her husband's
arrest, she and her two daughters have been living with her brother, his family
and their mother in a cramped two-story stone house in central Sana. Hamdan's
lawyers came to Yemen about a year and a half ago to see her, and the lawyer's
interpreter is in fairly regular contact with al-Qala, but no one whom Hamdan
left behind seems to have any real sense of the gravity of his situation or the
significance of his case: what could a superpower like the United States
possibly want with Salim?

Sitting perfectly straight on the shiny, floral-patterned blue floor cushions
that lined the small upstairs living room in her brother's home, Um Fatima spoke
for three hours through an interpreter about her husband. Al-Qala, a stocky man
with a dark mustache and glassy, expressionless eyes, sat beside her chain-
smoking Marlboros and working on a big wad of khat. Um Fatima and Hamdan's two
daughters, 6 and 4, raced in and out in T-shirts and sweatpants. Um Fatima's
full-length covering revealed only her eyes, but the difficulty of talking about
her husband was evident; several times, she became so upset that she had to
excuse herself and leave the room.

Um Fatima and Hamdan were married in Sana in 1999. She had not met him before
their wedding day but was nevertheless a happy bride. They stayed in Sana for a
few months before returning to Afghanistan. Um Fatima was reluctant to go, and
was shocked at the conditions once they arrived. Their mud-brick home had dirt
floors and no running water or electricity. It was also remote: Tarnak Farms,
the walled Qaeda complex in which they lived, was tucked into a vast expanse of
treeless desert and brush about 30 minutes outside Kandahar. Um Fatima's days
were spent alone inside the house with her infant daughter. Hamdan, she told me,
would return in the early evenings, often with clothes stained with grease from
his work fixing the various cars and trucks used on the farm. Um Fatima said she
would occasionally complain to him about their life there. "Salim would always
tell me to be patient, that someday we would return to Yemen," she said.

In her telling, Um Fatima was doing hardship duty for a few years so that her
husband could earn good money working for a sheik she'd never heard of. Even
now, years later, the fact that she had lived inside the walls of a heavily
fortified Qaeda compound while her husband worked for the most infamous
terrorist of our time does not seem to have penetrated her version of reality.

Um Fatima last saw her husband on Nov. 24, 2001. She was eight months pregnant.
At the time, U.S. forces were closing in on Kandahar, the Taliban's last
stronghold in Afghanistan. Hamdan, who had been away for a couple of months with
bin Laden, had recently returned to take Um Fatima and their daughter to
Pakistan. In a borrowed car, with American B-52's circling the skies overhead,
they made their way through the Maruf mountains toward the border. Hamdan
decided to let Um Fatima cross into Pakistan alone; security was tight, and even
if the border guards had no idea that he worked for bin Laden, being a Yemeni
man trying to leave was enough to cause suspicion. He told her he would find
another way through and come find her in a few days.

Over the course of the next few weeks, as Um Fatima traveled deeper into
Pakistan in the back of a pickup truck with a group of Afghan refugees, she
gradually lost hope that she would ever see her husband again. Entering her
ninth month of pregnancy, she became so hysterical, she told me, that some
sympathetic strangers in Karachi bought her a plane ticket home. At the airport
in Sana, she was interrogated for five hours about her husband's whereabouts. Um
Fatima said she assumed he was dead.

Two and a half months later, she received a letter from him on International
Committee of the Red Cross stationery. "My sweetheart, peace and blessings be
upon you," it began. "I did not die. Allah prescribed a new life for me. Now I
am a detainee with the Americans.. . ."

Um Fatima showed me all of the letters she has received from Hamdan since then.
Later that night, the interpreter who read the dozen or so letters to me told me
how unusual they were. Yemeni men tend to be commanding and aloof with their
wives. Hamdan's letters were emotive, like those of a longing schoolboy. There
are drawings of his dagger ("please take care of my jambiya for me"), simple
poems ("the bird danced and the bird sang. . .") and the promise to "see each
other very, very, very, very, very soon, God willing."

In a three-page military order issued on Nov. 13, 2001, President Bush
authorized the special tribunals before which Salim Hamdan and other non-
American enemy combatants are to be tried. The trials will held in Guantanamo
before panels of three to seven military officers selected by an administration
appointee. Two-thirds of a majority will be required for non-death-penalty
convictions. (A death sentence requires unanimity.) These are war-crimes
tribunals, though unlike the recent international tribunals in Rwanda and the
former Yugoslavia, the list of offenses pertain to acts of terrorism rather than
genocide.

The administration opted for these special tribunals over the U.S. criminal
courts for a number of practical reasons. Broadly speaking, certain rights that
would be considered fundamental in a civilian court wouldn't apply. If
defendants were suspected terrorists, for instance, they couldn't very well be
permitted to see all the evidence against them as some of it would no doubt be
classified for national-security reasons.

Practical considerations aside, the creation of the nation's first war-crimes
tribunals since World War II sent a symbolic message, putting the war against
Islamic extremism in the same class as the war against Nazism. Moreover, the
tribunals fit with the Bush administration's larger strategy to reassert and
expand presidential authority in the aftermath of 9/11. The executive branch
would have complete control. Not only was Congress - the body empowered by the
Constitution to convene military tribunals - left out of the decision to
establish them, but it also wasn't consulted on how the tribunals would work.
Instead, the administration's lawyers wrote all of the rules, from the
composition of the panels to the standards for admissible evidence to the
definition of a war crime. The judiciary branch was also cut out of the process:
contested verdicts would be reviewed not by a federal court of appeals but by a
three-member panel picked by Defense Secretary Donald H. Rumsfeld.

The first batch of defendants for the tribunals, Hamdan and three others, were
carefully selected and then repeatedly vetted on their journey up the chain of
command. Case summaries were passed from the military lawyers assigned to the
prosecution team to the Pentagon's adviser for the tribunals to Paul D.
Wolfowitz, then deputy defense secretary, to President Bush. Hamdan was
originally slated to be the first Arab tried.

While the government has not accused Hamdan of being a member of Al Qaeda per
se, it does say that he picked up and delivered weapons for use by Qaeda
associates, trained at a Qaeda camp and served as a bodyguard and driver for bin
Laden. The formal charge being brought against him is conspiracy, which the
administration defines as having "joined an enterprise of persons who shared a
common criminal purpose." In a sense, the conspiracy charge is a logical one for
prosecuting members of organizations like Al Qaeda that deliberately subdivide
tasks and inform very few people about operations. "To capture the nature of
some enterprises, to deconstruct what makes them effective, you have to focus on
the different kinds of contributions, from the target spotter to the weapons
transporter to the financier," says Ruth Wedgwood, a law professor at Johns
Hopkins who helped the Pentagon revise some of the rules for the tribunals.

In the U.S. criminal courts, conspiracy is especially popular among prosecutors
going after organized-crime rings; it gives them leverage to lean on foot
soldiers to testify against their superiors. In the context of war-crimes
tribunals, however, conspiracy becomes more complicated. Because it can be
applied to people at every level, it can create a moral equivalence between low-
level players and leaders. This very issue came up at Nuremberg, when an
assistant attorney general in the Roosevelt administration attacked a Pentagon
proposal to file conspiracy charges against German foot soldiers because it
might, in the world's eyes, weaken the impact of the charges against the Nazi
leaders. (The proposal was never adopted.) What's more, because conspiracy is
such a broad, catch-all charge, it's an easy one for prosecutors to fall back on
when their proof of guilt is thin. The U.S. criminal-court system has numerous
protections against this - jury trials, judges who are insulated from politics,
access to an independent court of appeals - most of which are absent from the
tribunals. "In the American criminal system, we can have a conspiracy doctrine
because we have this unique set of vibrant protections," says Neal Katyal, a
Georgetown law professor, the architect of Hamdan's lawsuit against the Bush
administration and a champion of the conspiracy charge in the criminal context.
"But when it comes to war-crimes trials, the international consensus is that
conspiracy is a no-no. When the U.S. Congress itself defined war crimes in two
statutes in 1996 and 1997, it didn't include conspiracy."

Brig. Gen. Thomas L. Hemingway, an Air Force judge advocate general who is
currently serving as the Pentagon's adviser on the tribunals, wouldn't discuss
the government's evidence against Hamdan other than to point out that the
prosecution has already given the defense 18,000 pages of discovery, including
incriminating photographs and summaries of Hamdan's numerous statements to
interrogators. "You want a one-word characterization of the case against
Hamdan?" General Hemingway asked me. "Solid."

The government is certainly aware that the first trials will be closely
scrutinized, and it seems improbable that it would choose a case that wasn't
airtight. Hamdan's story also has narrative appeal. Unlike the vast majority of
enemy combatants, who came to Afghanistan with the cresting wave of jihadis
after 1999, he worked for bin Laden from 1996 until his capture in November
2001, a stretch of time that spanned not just 9/11 but also the 1998 attacks on
two U.S. embassies in East Africa and the 2000 bombing of the U.S.S. Cole. And
while many jihadis never even met bin Laden, Hamdan has not disputed working
directly for him. A skilled prosecutor could turn his trial into the history of
Al Qaeda's decade-long war against America and in so doing illuminate the nature
of our enemy; the tribunals will be open to the press, except for when
classified evidence is presented. Whatever evidence the government may have
against Hamdan, it's hard to believe he could have worked for bin Laden for five
years, through several high-profile terrorist attacks, without the knowledge of
Al Qaeda's intentions or bin Laden's trust. And given that he has admitted to
being a driver, the progression to transporting weapons is hardly a leap.

Yet it seems clear that Hamdan was not a high-ranking officer of Al Qaeda. By
the time the United States decided to try him in 2003, there were certainly
people in custody suspected of more serious crimes. Why not prosecute the more
heinous offenders first? The government won't discuss how it settled on Hamdan,
but it's easy to make some logical inferences. It stands to reason that the more
hard-core the suspected terrorist, the more useful the information he possessed.
The government may not have been done questioning the "highest value" detainees
when it decided to issue its first indictments. (Hamdan's once-regular
interrogations, which started almost immediately after his arrest and continued
for the better part of two years, ceased in early 2004, shortly before the
government announced that he'd been selected for trial.) The United States was
also entering uncharted waters with the tribunals; terrorism is not yet codified
as a war crime in international law. It's possible that the government wanted to
wait to try its most prized detainees until it had the opportunity to test its
legal theories on smaller players.

The treatment of the prisoners may have been a factor as well. Lawyers for the
administration had long since built their legal defense of coercive
interrogations. Nevertheless, for the first tribunals the government may have
wanted "clean" - as in not mistreated or tortured - defendants, both to avoid
embarrassment and to prevent issues about the veracity of their statements to
interrogators. This, however, is not a point that Hamdan's lawyers intend to
concede. Hamdan has already implied in an affidavit that some of his statements
were coerced. He says he was punched and kicked after failing to answer certain
questions, and that one of his interrogators placed a pistol on the table
between them during their sessions.


In late November, a few weeks after the Supreme Court agreed to hear Hamdan v.
Rumsfeld, Hamdan was moved from his regular cellblock in Camp Delta to a
separate, smaller cellblock called Tango. When his lawyers learned about the
development in early December, they were not pleased. Not only had Hamdan's
relocation violated the explicit order of a federal judge that he be kept among
the general population at Delta, but he also would be right next to Ali Hamza
Ahmed Sulayman al-Bahlul, a supposed Qaeda propagandist with a reputation for
turning other detainees against their U.S. attorneys. "He's getting put with a
known advocate for firing lawyers - against a federal order - and I don't even
get told about it?" Katyal's co-counsel, Navy Lt. Cmdr. Charles Swift, told me
after Hamdan's move. Swift and Katyal promptly filed an emergency motion to have
their client returned to a normal cellblock, and the authorities at Guantanamo
complied.

Many detainees assume that their lawyers are American spies, a suspicion fed by
the fact that nearly every document or letter that they bring in or take out of
the camp has to pass through military censors. Hamdan's lawyers say they have a
good relationship with him; still, they worry about losing him to what they
consider to be the prison's more radical element. So while Katyal plots strategy
from his office near Capitol Hill in Georgetown, Swift, a voluble, boyish-
looking 44-year-old Navy JAG, shuttles back and forth to Guantanamo Bay with
their interpreter, Charles Schmitz, a soft-spoken professor of geography and an
expert in Yemeni culture, to reassure their client that they are on his side and
to persuade him to have faith in a legal system that he doesn't understand.


It was hard enough for Swift, who was appointed by the government, to earn
Hamdan's confidence when he first started meeting with him - in his Navy uniform
- in early 2004; he now finds himself having to constantly earn it back. As the
indefinite detentions of hundreds of Muslim men, many of whom were already
predisposed to Islamic extremism, enters its fifth year, Guantanamo is turning
into an anti-American hothouse. For the government, the radicalization of
Guantanamo is a complicated issue. The main form of protest in the camps is the
hunger strike, and a prisoner's starving himself to death would turn Guantanamo,
already a public-relations problem, into a full-scale disaster. (As of Dec. 30,
more than 30 detainees had been hospitalized and were being force-fed.)
Radicalization also undermines one of the principal goals of imprisonment:
deterrence. As Guantanamo's critics like to say, "If you weren't a terrorist
when you went in, you will be when you're let out."

But radicalization has its advantages for the Bush administration too. Last
summer, some detainees told their American lawyers that they would no longer
meet with them, and a number went so far as to formally fire them. The
government considers the legions of adversarial defense attorneys working pro
bono for the detainees - from corporate lawyers to human-rights lawyers to law
professors - to be an impediment to their ability to prosecute the war on
terror. Among other things, the lawyers have filed hundreds of habeas corpus
petitions in order to challenge their clients' continued detention without
recourse.

More broadly, radicalization helps validate Guantanamo's existence. The more
anti-American the detainees become, the greater the danger they pose and thus
the more necessary it is to continue to detain them. So when Swift first heard
about the decision to move Hamdan next to al-Bahul, he wondered whether it
wasn't deliberate. "If they succeed in radicalizing Salim," he said, "then
they've justified his trial." (The Pentagon would not comment on why an
individual detainee might have been moved.)

Last August, Hamdan joined a prisonwide hunger strike to protest the conditions
on Guantanamo. The detainees' numerous demands included the return of religious
books that had been taken from them. When Swift next visited Hamdan in late
August, he found him unusually intransigent. For two days, Hamdan refused to
meet with him altogether. Not long after Swift returned home to Northern
Virginia, he got a call from another lawyer at Guantanamo informing him that
Hamdan, a slight man to begin with, had passed out from dehydration in his cell
and was taken to the medical clinic at Delta and put on an IV drip. Swift flew
back down to Guantanamo Bay almost immediately and managed to persuade Hamdan to
start eating again by appealing to the same sense of solidarity that he says
prompted him to join the strike in the first place. The best way to help his
fellow detainees, Swift told him, was not to martyr himself but to follow
through on their challenge to the system.

Like the government, Hamdan's lawyers also see him as much more than a detainee;
to them, he represents the pretext for a historic and unconstitutional
presidential power grab. As Hamdan's lawyers and other critics see it, the
administration, by unilaterally creating the tribunals, defining the offenses
and handpicking the panels, is not only denying detainees fair trials, it is
also violating bedrock principles of the American government. To put an even
finer point on it, they say the Bush administration is undermining the very
values it purports to be defending in its war against Islamic extremism. They
would like to see Hamdan and other enemy combatants tried before a traditional
military court, a pre-existing legal system approved by Congress with built-in
provisions for the complications that arise during wartime.

Katyal, who served as Vice President Gore's co-counsel in the suit over the 2000
election, draws a sharp distinction between waging war, an act over which the
president should have broad authority, and meting out justice. And so, working
at his own expense with research support from a loose network of law students
from Georgetown, Yale and the University of Michigan along with attorneys from
the law firm Perkins Coie, Katyal has written more than a thousand pages of
briefs arguing that the president has neither the authority to create the
tribunals without explicit Congressional approval nor the right to deny Hamdan
status as a prisoner of war, and in so doing strip him of protections guaranteed
by the Geneva Conventions. "The Geneva Conventions were written precisely to
make it difficult for political leaders facing political pressure to suspend
basic rights and P.O.W. protections," Katyal says. "The moment we let a
president say he can determine whether someone is a prisoner of war, other
countries are going to start doing it back to us."

Katyal's arguments found traction in federal court in Washington in the fall of
2004. Just as Hamdan's second round of preliminary hearings were getting under
way at Guantanamo, Judge James Robertson, a former Naval officer, ruled in his
favor, declaring the tribunals illegal and abruptly halting the proceedings 30
minutes after they had begun. In July 2005, however, a three-judge appeals panel
that included John G. Roberts Jr., now chief justice of the Supreme Court,
overturned the decision. Katyal and Swift petitioned the Supreme Court for
review, and in November, after delaying action on the case for several weeks,
the court announced that it would hear Hamdan v. Rumsfeld.

This was not the final word, though. No sooner had the Supreme Court agreed to
consider Hamdan's case than a Republican senator from South Carolina, Lindsey
Graham, introduced a last-minute amendment to a defense-authorization bill
explicitly denying all Guantanamo detainees habeas corpus rights, or access to
the U.S. federal courts. This had been the administration's intent from the
moment it started sketching out its legal strategy in the war on terror in the
aftermath of 9/11, but the last time the issue came before the Supreme Court, in
the spring of 2004 in another detainee case, the court ruled against the
president (with a loud dissent from Justice Scalia). Now Graham was effectively
interceding on the administration's behalf in what amounted to an end run around
the Supreme Court.

Days later, however, Senator Carl Levin, a Michigan Democrat, persuaded Graham
to change the wording of the amendment so that it would not derail pending
cases, including Hamdan v. Rumsfeld. It has since passed both the House and the
Senate and at press time awaited the president's signature.


What about the hundreds of detainees who have not yet filed suits protesting
their imprisonments? Aside from trial or continuing detention, the only option
for the United States is to send them back to their respective nations. To date,
it has released about 260 men, including a handful of Yemenis, all of whom
remain in prison in Yemen, no doubt at the behest of the Bush administration.
But Yemen is an unpredictable ally. In November, the United States suspended it
from an aid program worth hundreds of millions of dollars, citing enduring
governmental corruption, fiscal irresponsibility and the failure to enact
democratic reform. Meanwhile, Islamic fundamentalism continues to gather
strength in Yemen. Recently, three of the country's best-known extremists,
including al-Zindani, one of bin Laden's spiritual mentors, called for a new
coalition dedicated to confronting Islam's enemies and promoting Muslim values.
The ongoing detention of 100 Yemenis at Guantanamo Bay may only help their cause
and increase their leverage with President Saleh. So the United States finds
itself trapped between two unappealing choices: hold these men as the
potentially endless war against terrorism goes on, or return them to a breeding
ground for Islamic radicalism in Yemen.

For his part, Hamdan's immediate concerns have more to do with day-to-day life
at Guantanamo Bay - how much time detainees are permitted to exercise and at
what time of day, what books they are allowed to read, what comfort items they
are allowed to keep in their cells - than with the future of his historic
lawsuit against the United States government. As Schmitz, his interpreter, told
me recently, "The most important thing to him is what we can deliver in the
camp, and that is zip."

Shortly after the Supreme Court agreed to hear Hamdan v. Rumsfeld, Swift visited
Hamdan's cell armed with several front-page newspaper articles about the
development. When Swift delivered the news, Hamdan smiled. Within a matter of
minutes, though, his mood had visibly darkened, Swift says. Then Hamdan asked
him, "What is this exactly that I've won?"

[ Jonathan Mahler, a contributing writer for the magazine, is working on a book
about the Hamdan case, to be published by Farrar, Straus & Giroux. ]

*


Washington Post --

January 8, 2006
EXECUTIVE DECISION
A key former Bush aide argues for wartime presidential clout.

THE POWERS OF WAR AND PEACE, By John Yoo
University of Chicago / 366 pp / $29

Reviewed by Neal Katyal

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/05/
AR2006010501653.html

John Yoo deserves much credit for helping open up a secretive subject for public
discussion, even when it has meant unpleasantness for himself. As the apparent
author of many of the Bush administration's post-9/11 policies, including those
that authorize the National Security Agency (NSA) to violate the wiretap statute
and strip Geneva Convention protections from anyone suspected of affiliation
with al Qaeda and the Taliban, Yoo lives in a firestorm. In the past few months
alone, international lawyers have called for his criminal indictment, students
have broken into his classroom at Berkeley (where the former deputy assistant
attorney general now teaches law) to stage a mock detainee hearing, and lecture
halls where he is scheduled to speak have been boycotted. Such political
grandstanding is shameful behavior; in fact, Yoo should be commended for not
hiding behind the standard Washington clich of saying, "That's classified; I
can't talk about it."

Of course, much of Yoo's work for the Justice Department is indeed still
classified, most important[ly] his opinions on NSA spying and those justifying
the legality of a military trial system at Guantanamo Bay. Nevertheless, Yoo's
new book is marketed as a defense of the administration's post-9/11 conduct. Yet
the book doesn't really accomplish that, or even attempt it. Rather, it is a
sometimes careful, academic work about presidential powers in wartime.

In particular, the book argues that the Constitution gives the president a much
larger role in foreign affairs and military operations than the other two
branches of the federal government, that the president does not need a
congressional declaration of war before placing troops on the ground and that
treaties ratified by the Senate have no legal impact unless Congress explicitly
passes laws saying that they do.

In advancing these claims, the book is burdened by its strange attempt to mix
constitutional claims grounded in the Founders' intent in 1787 with the
practicalities of living in an age of terrorism. Either one can take the
position of such conservative icons as Robert Bork and Justice Antonin Scalia --
that the original intentions of the Constitution's authors bind us today and
changes can only come through amendment -- or hold the view of more liberal
figures such as Justice Stephen Breyer that practical, functional considerations
create a living Constitution that adapts as times change. Both are perfectly
plausible. What isn't credible is a theory that cherry-picks from the two to
advance a particular thesis. And that's exactly what Yoo does at times.

Yoo is at his best in skewering the academics who believe that Congress must
formally declare war before the president can engage in military operations.
After all, hundreds of U.S. military operations have occurred without a
declaration of war. Yoo's argument here, and the history he marshals, is
contribution enough. There have been no declarations of war since World War II,
yet a majority of academics today still adhere to the position that such a
declaration is required before troops can be deployed.

Unfortunately, Yoo goes further, explaining that the president would not be made
all powerful by such a broad reading of his war-making power because Congress
could cut off funds or pass legislation to end the war. Yet it isn't remotely
plausible that Congress's funding power can check the president. As Yoo's main
academic opponent, former Stanford Law School dean John Hart Ely explains in his
book War and Responsibility , "Once the president had committed 'our boys' to
the battlefield, it would become emotionally and politically difficult to vote
to cut off their 'support.' " If the legislative branch really did use its
funding power in the way Yoo advertises, it would destroy his thesis, which is
built on the speed, unity and decisiveness of the executive branch compared to
Congress. It is jarring to watch a sober realist like Yoo ignore the obvious
reality that Congress is incapable of defunding a war when troops are already
engaged.

In the end, the most glaring failure of the book is its one-sided attack on the
courts and Congress, with no real attention paid to the failures of the
executive branch. The underlying message is that the executive doesn't need
checks on its activities, but that the other branches consistently do. Yet
presidents of both parties have made tremendous mistakes, and recent events have
shown that claims of unchecked power can lead to massive abuse. Yoo even
unwittingly refers to at least one recent miscalculation, in words that already
date the book, by stating that Iraq was "potentially armed with weapons of mass
destruction."

If scholars like Yoo want to exalt the executive, they will have to do a better
job of figuring out ways to develop checks and balances inside the executive
branch. Otherwise, faith in the executive is little more than a recipe for
unaccountable and poor decisionmaking. This wasn't the way the Constitution was
written; and I, for one, have more faith in our Founders than that.

[ Neal Katyal, a professor of law at Georgetown University, represents, pro
bono, a Guantanamo Bay detainee. He served as national security adviser at the
Justice Department in 1998-1999. ]

*


Washington Post --

January 6, 2006
CHENEY'S CHENEY
By David Ignatius

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/05/
AR2006010501902.html

Who is David Addington? The simple answer is that he's Vice President Cheney's
former legal counsel and, since the indictment and resignation of Scooter Libby
in October, Cheney's chief of staff. But behind the scenes, the polite but
implacable Addington has been a chief advocate for the interrogation and
surveillance policies that have created a legal crisis for the Bush
administration.

Addington, 48, is in many ways Cheney's Cheney. Like his boss, he has exercised
immense power without leaving many fingerprints. He operates with a decorous,
low-key manner, but colleagues say he can intimidate and sometimes bully
opponents. Though working out of the relative obscurity of the vice president's
office, he has been able to impose his will on Cabinet secretaries and other
senior administration officials. His influence rests on two pillars: his
unyielding conviction that the powers of the president cannot be abridged in
wartime, and the total support he receives from Cheney.

Addington's relationship with Cheney developed during the 1980s, when the two
learned the same hardball lessons about national security. Addington worked as
an assistant general counsel at Bill Casey's no-holds-barred CIA from 1981 to
'84, where a friend says he loved the culture of "go-go guys with a license to
hunt." He got to know Cheney when he moved to Capitol Hill as a staffer for the
House intelligence committee and later the Iran-contra committee. "David has
seared in his mind the restrictive amendments tying the president's hand in
funding the contras," remembers Bruce Fein, a Republican attorney who worked on
the Iran-contra committee. Addington moved with Cheney to the Pentagon as his
special assistant and later became Defense Department general counsel.

What drives Addington is a belief that the president's wartime powers are,
essentially, unfettered, argues Rep. Jane Harman, the ranking Democrat on the
House intelligence committee who has attended highly classified briefings with
him on detention and surveillance issues. "He believes that in time of war,
there is total authority for the president to waive any rules to carry out his
objectives. Those views have extremely dangerous implications." Harman's efforts
to negotiate compromises with Addington on interrogation issues were rebuffed,
she says, by his insistence that "it's dangerous to tie the president's hands in
any way."

Friends and former colleagues describe Addington as a man who thrives on his
invisibility. He lives in a modest house in Northern Virginia, takes the subway
to work, and shuns the parties and perks of office. He usually has the same
simple meal every day -- a bowl of gazpacho soup. Though born in Washington, he
styles himself as a "rugged Montana man" in the image of his boss, and he has a
photo in his office of Cheney shooting a gun.

Addington's role has been the hard man -- the ideological enforcer. Most
mornings during the first term, he would join the staff meeting in the White
House counsel's office -- and take potshots at anyone he regarded as
insufficiently committed to the president's agenda. "It was very surprising if
anyone took a position more conservative than David, and this was a very
conservative office," recalls one former colleague. "He was the hardest of the
hard-core."

A special target of Addington's needling during the first term was John B.
Bellinger III, at the time the chief legal adviser to national security adviser
Condoleezza Rice. Addington would attack any sign of caution or wariness from
Bellinger about proposed policies, breaking in to say, "That's too liberal," or
"You're giving away executive power," remembers a colleague. Bellinger is now
Rice's legal adviser at the State Department.

Addington's most bruising fights have been with colleagues at the Justice
Department and the Pentagon who challenged his views on interrogation of enemy
combatants. He pushed Justice's Office of Legal Counsel to prepare a 2002 memo
authorizing harsh interrogation methods. When that memo was later withdrawn,
Addington was furious. Last year, he successfully blocked the appointment of one
critic, Patrick Philbin, as deputy solicitor general, even though Attorney
General Alberto Gonzales wanted him in that role. Also last year, Addington was
so adamant in resisting the efforts of a Pentagon official named Matthew Waxman
to limit interrogation that Waxman eventually quit and is now moving to the
State Department.

"David is a fight-to-the-end kind of a guy," says one former colleague. "If you
made it clear that you opposed him, he'd go to war with you. David was not an
adversary you would want."

Even people who describe themselves as friends of Addington believe that he has
damaged President Bush politically by pressing anti-terrorism policies to the
legal breaking point. And for many Republicans who bear scars from Addington,
his story raises the ultimate question about the Bush White House: Who's in
charge here?

davidignatius@washpost.com

*


Washington Post --

January 5, 2006

SURVEILLANCE COURT IS SEEKING ANSWERS
Judges Were Unaware of Eavesdropping

By Carol D. Leonnig

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/04/
AR2006010401864.html

The members of a secret federal court that oversees government surveillance in
espionage and terrorism cases are scheduled to receive a classified briefing
Monday from top Justice Department and intelligence officials about a
controversial warrantless-eavesdropping program, according to sources familiar
with the arrangements.

Several judges on the Foreign Intelligence Surveillance Court said they want to
hear directly from administration officials why President Bush believed he had
the authority to order, without the court's permission, wiretapping of some
phone calls and e-mails after the Sept. 11, 2001, attacks. Of serious concern to
several judges is whether any information gleaned from intercepts by the
National Security Agency was later used to gain their permission for wiretaps
without the source being disclosed.

The court is made up of 11 judges who, on a rotating basis, hear government
applications for surveillance warrants. But only the presiding judge, currently
Colleen Kollar-Kotelly, was notified of the government eavesdropping program.
One judge, James Robertson, who also serves on the federal bench in Washington,
resigned his seat on the surveillance court in protest shortly after the
wiretapping was revealed by the New York Times in mid-December.

Kollar-Kotelly began pressing for a closed government briefing for the remaining
members of the court on Dec. 19, the day she learned of Robertson's concerns.
Other judges wanted to know, as Robertson had, whether the administration had
misled their court about its sources of information on possible terrorism
suspects.

Kollar-Kotelly had privately raised concerns in 2004 about the risk that the
government could taint the integrity of the court's work by using information it
gained via wiretapping to obtain warrants from judges under the Foreign
Intelligence Surveillance Act.

On Friday, an attorney for Seifullah Chapman, one of the men convicted as part
of the "Virginia jihad network," formally asked federal prosecutors in Virginia
to determine whether warrantless NSA wiretaps were used to gain information
about his client. Chapman, who is serving a 65-year sentence for conspiring to
provide material support to a foreign terrorist group, was the subject of a
secret FISA warrant.

"My feeling is they are a very professional organization. They would be equally
concerned that my client's rights are protected, and they'll want to find out
themselves," said John Zwerling, Chapman's attorney.

Some judges who spoke on the condition of anonymity yesterday said they want to
know whether warrants they signed were tainted by the NSA program. Depending on
the answers, the judges said they could demand some proof that wiretap
applications were not improperly obtained. Defense attorneys could have a valid
argument to suppress evidence against their clients, some judges said, if
information about them was gained through warrantless eavesdropping that was not
revealed to the defense.

Yesterday, Rep. Jane Harman (Calif.), the ranking Democrat on the House
intelligence committee, sent a letter to Bush charging that the limited nature
of congressional briefings on the monitoring program violated the National
Security Act. The White House informed the chairmen of the House and Senate
intelligence oversight committees and the two ranking Democrats about the
program.

The National Security Act requires the president to keep all members of the two
committees fully informed of intelligence activities with the exception of those
conducted covertly overseas. "In my view, failure to provide briefings to the
full congressional intelligence committees is a continuing violation of the
National Security Act," Harman wrote.

[ Staff writer Dafna Linzer contributed to this report. ]

*

Boston Globe --

January 5, 2006

3 GOP SENATORS BLAST BUSH BID TO BYPASS TORTURE BAN

By Charlie Savage

http://www.boston.com/news/nation/washington/articles/2006/01/05/
3_gop_senators_blast_bush_bid_to_bypass_torture_ban/

WASHINGTON Three key Republican senators yesterday condemned President Bush's
assertion that his powers as commander in chief give him the authority to bypass
a new law restricting the use of torture when interrogating detainees.

John W. Warner Jr., a Virginia Republican who chairs the Senate Armed Services
Committee, and Senator John McCain, an Arizona Republican, issued a joint
statement rejecting Bush's assertion that he can waive the restrictions on the
use of cruel, inhuman, and degrading treatment against detainees to protect
national security. "We believe the president understands Congress's intent in
passing, by very large majorities, legislation governing the treatment of
detainees," the senators said. "The Congress declined when asked by
administration officials to include a presidential waiver of the restrictions
included in our legislation. Our committee intends through strict oversight to
monitor the administration's implementation of the new law."

Separately, the third primary sponsor of the detainee treatment law, Senator
Lindsey O. Graham, Republican of South Carolina, told the Globe in a phone
interview that he agreed with everything McCain and Warner said "and would go a
little bit further."

"I do not believe that any political figure in the country has the ability to
set aside any . . . law of armed conflict that we have adopted or treaties that
we have ratified," Graham said. "If we go down that road, it will cause great
problems for our troops in future conflicts because [nothing] is to prevent
other nations' leaders from doing the same."

The White House did not return calls yesterday about the senators' statements.
On Friday, in signing the ban on torture, Bush issued a "signing statement,"
saying he would interpret the restrictions in the context of his broader
constitutional powers as commander in chief. A "signing statement" is an
official document in which a president lays out his interpretation of a new law.

A senior administration official later confirmed that the president believes the
Constitution gives him the power to authorize interrogation techniques that go
beyond the law to protect national security. But in enacting the law, Congress
intended to close every loophole and impose an absolute ban on all forms of
torture, no matter the circumstances, Graham said.

David Golove, a New York University law professor who specializes in executive
power issues, said the senators' statements "mean that the battle lines are
drawn" for an escalating fight over the balance of power between the two
branches of government.

"The president is pointing to his commander in chief power, claiming that it
somehow gives him the power to dispense with the law when he's conducting war,"
Golove said. "The senators are saying: 'Wait a minute, we've gone over this.
This is a law Congress has passed by very large margins, and you are compelled
and bound to comply with it.' "

Elisa Massimino, Washington director of Human Rights First, said the senators'
statement should send a clear warning to military and CIA interrogators that
they would be subject to criminal prosecution if they abuse a detainee.

"That power [to override the law] was explicitly sought by the White House, and
it was considered and rejected by the Congress," she said. "And any US official
who relies on legal advice from a government lawyer saying there is a
presidential override of a law passed by Congress does so at their peril. Cruel
inhuman and degrading treatment is illegal."

But Golove said that it is politically unlikely that Attorney General Alberto R.
Gonzales would prosecute an official for taking an action Bush ordered him to
take. Still, he said, Congress has a number of tools for compelling the
president to obey the law. Congress can withhold funds for programs. It can
subpoena administration officials to testify under oath. It can pass stricter
laws or block legislation Bush needs. In an extreme and politically unlikely
scenario, it can impeach the president.

Bush's interpretation of another detainee-related provision in the new law
sparked further friction yesterday with some lawmakers.

The provision stripped courts of the jurisdiction to hear most lawsuits from
detainees held at the US naval base at Guantanamo Bay, Cuba.

Citing that provision, the administration said this week that it would ask
courts to dismiss more than 180 Guantanamo lawsuits.

*


Boston Globe --

January 4, 2006

BUSH COULD BYPASS NEW TORTURE BAN
Waiver right is reserved

By Charlie Savage

http://www.boston.com/news/nation/articles/2006/01/04/
bush_could_bypass_new_torture_ban/

WASHINGTON When President Bush last week signed the bill outlawing the torture
of detainees, he quietly reserved the right to bypass the law under his powers
as commander in chief.

After approving the bill last Friday, Bush issued a "signing statement" an
official document in which a president lays out his interpretation of a new law
declaring that he will view the interrogation limits in the context of his
broader powers to protect national security. This means Bush believes he can
waive the restrictions, the White House and legal specialists said. "The
executive branch shall construe [the law] in a manner consistent with the
constitutional authority of the President . . . as Commander in Chief," Bush
wrote, adding that this approach "will assist in achieving the shared objective
of the Congress and the President . . . of protecting the American people from
further terrorist attacks."

Some legal specialists said yesterday that the president's signing statement,
which was posted on the White House website but had gone unnoticed over the New
Year's weekend, raises serious questions about whether he intends to follow the
law.

A senior administration official, who spoke to a Globe reporter about the
statement on condition of anonymity because he is not an official spokesman,
said the president intended to reserve the right to use harsher methods in
special situations involving national security.

"We are not going to ignore this law," the official said, noting that Bush, when
signing laws, routinely issues signing statements saying he will construe them
consistent with his own constitutional authority. "We consider it a valid
statute. We consider ourselves bound by the prohibition on cruel, unusual, and
degrading treatment."

But, the official said, a situation could arise in which Bush may have to waive
the law's restrictions to carry out his responsibilities to protect national
security. He cited as an example a "ticking time bomb" scenario, in which a
detainee is believed to have information that could prevent a planned terrorist
attack.

"Of course the president has the obligation to follow this law, [but] he also
has the obligation to defend and protect the country as the commander in chief,
and he will have to square those two responsibilities in each case," the
official added. "We are not expecting that those two responsibilities will come
into conflict, but it's possible that they will."

David Golove, a New York University law professor who specializes in executive
power issues, said that the signing statement means that Bush believes he can
still authorize harsh interrogation tactics when he sees fit.

"The signing statement is saying 'I will only comply with this law when I want
to, and if something arises in the war on terrorism where I think it's important
to torture or engage in cruel, inhuman, and degrading conduct, I have the
authority to do so and nothing in this law is going to stop me,' " he said.
"They don't want to come out and say it directly because it doesn't sound very
nice, but it's unmistakable to anyone who has been following what's going on."

Golove and other legal specialists compared the signing statement to Bush's
decision, revealed last month, to bypass a 1978 law forbidding domestic
wiretapping without a warrant. Bush authorized the National Security Agency to
eavesdrop on Americans' international phone calls and e-mails without a court
order starting after the terrorist attacks of Sept. 11, 2001.

The president and his aides argued that the Constitution gives the commander in
chief the authority to bypass the 1978 law when necessary to protect national
security. They also argued that Congress implicitly endorsed that power when it
authorized the use of force against the perpetrators of the attacks.

Legal academics and human rights organizations said Bush's signing statement and
his stance on the wiretapping law are part of a larger agenda that claims
exclusive control of war-related matters for the executive branch and holds that
any involvement by Congress or the courts should be minimal.

Vice President Dick Cheney recently told reporters, "I believe in a strong,
robust executive authority, and I think that the world we live in demands it. .
. . I would argue that the actions that we've taken are totally appropriate and
consistent with the constitutional authority of the president."

Since the 2001 attacks, the administration has also asserted the power to bypass
domestic and international laws in deciding how to detain prisoners captured in
the Afghanistan war. It also has claimed the power to hold any US citizen Bush
designates an "enemy combatant" without charges or access to an attorney.

And in 2002, the administration drafted a secret legal memo holding that Bush
could authorize interrogators to violate antitorture laws when necessary to
protect national security. After the memo was leaked to the press, the
administration eliminated the language from a subsequent version, but it never
repudiated the idea that Bush could authorize officials to ignore a law.

The issue heated up again in January 2005. Attorney General Alberto Gonzales
disclosed during his confirmation hearing that the administration believed that
antitorture laws and treaties did not restrict interrogators at overseas prisons
because the Constitution does not apply abroad.

In response, Senator John McCain, Republican of Arizona, filed an amendment to a
Defense Department bill explicitly saying that that the cruel, inhuman, and
degrading treatment of detainees in US custody is illegal regardless of where
they are held.

McCain's office did not return calls seeking comment yesterday.

The White House tried hard to kill the McCain amendment. Cheney lobbied Congress
to exempt the CIA from any interrogation limits, and Bush threatened to veto the
bill, arguing that the executive branch has exclusive authority over war policy.

But after veto-proof majorities in both houses of Congress approved it, Bush
called a press conference with McCain, praised the measure, and said he would
accept it.

Legal specialists said the president's signing statement called into question
his comments at the press conference.

"The whole point of the McCain Amendment was to close every loophole," said
Marty Lederman, a Georgetown University law professor who served in the Justice
Department from 1997 to 2002. "The president has re-opened the loophole by
asserting the constitutional authority to act in violation of the statute where
it would assist in the war on terrorism."

Elisa Massimino, Washington director for Human Rights Watch, called Bush's
signing statement an "in-your-face affront" to both McCain and to Congress.

"The basic civics lesson that there are three co-equal branches of government
that provide checks and balances on each other is being fundamentally rejected
by this executive branch," she said.

"Congress is trying to flex its muscle to provide those checks [on detainee
abuse], and it's being told through the signing statement that it's impotent.
It's quite a radical view."

*


Washington Post --

January 2, 2006
ALITO ONCE MADE CASE FOR PRESIDENTIAL POWER
By Christopher Lee

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/01/
AR2006010100788.html

As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr.
tried to help tip the balance of power between Congress and the White House a
little more in favor of the executive branch.

In the 1980s, the Reagan administration, like other White Houses before and
after, chafed at the reality that Congress's reach on the meaning of laws
extends beyond the words of statutes passed on Capitol Hill. Judges may turn to
the trail of statements lawmakers left behind in the Congressional Record when
trying to glean the intent behind a law. The White House left no comparable
record.

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in
the Office of Legal Counsel, outlined a strategy for changing that. It laid out
a case for having the president routinely issue statements about the meaning of
statutes when he signs them into law.

Such "interpretive signing statements" would be a significant departure from
run-of-the-mill bill signing pronouncements, which are "often little more than a
press release," Alito wrote. The idea was to flag constitutional concerns and
get courts to pay as much attention to the president's take on a law as to
"legislative intent."

"Since the president's approval is just as important as that of the House or
Senate, it seems to follow that the president's understanding of the bill should
be just as important as that of Congress," Alito wrote. He later added that "by
forcing some rethinking by courts, scholars, and litigants, it may help to curb
some of the prevalent abuses of legislative history."

The Reagan administration popularized the use of such statements and subsequent
administrations continued the practice. (The courts have yet to give them much
weight, though.)

President Bush has been especially fond of them, issuing at least 108 in his
first term, according to presidential scholar Phillip J. Cooper of Portland
State University in Oregon. Many of Bush's statements rejected provisions in
bills that the White House regarded as interfering with its powers in national
security, intelligence policy and law enforcement, Cooper wrote recently in the
academic journal Presidential Studies Quarterly.

The Bush administration "has very effectively expanded the scope and character
of the signing statement not only to address specific provisions of legislation
that the White House wishes to nullify, but also in an effort to significantly
reposition and strengthen the powers of the presidency relative to the
Congress," Cooper wrote in the September issue. "This tour d' force has been
carried out in such a systematic and careful fashion that few in Congress, the
media, or the scholarly community are aware that anything has happened at all."

Bush may be acting without fanfare for a reason. As Alito noted in his memo, the
statements "will not be warmly welcomed" on Capitol Hill.

"The novelty of the procedure and the potential increase of presidential power
are two factors that may account for this anticipated reaction," he wrote. "In
addition, and perhaps most important, Congress is likely to resent the fact that
the president will get in the last word on questions of interpretation."

*


New York Times --

January 1, 2006
JUSTICE DEPUTY RESISTED PARTS OF SPY PROGRAM
By Eric Lichtblau and James Risen

http://www.nytimes.com/2006/01/01/politics/01spy.html

WASHINGTON, Dec. 31 - A top Justice Department official objected in 2004 to
aspects of the National Security Agency's domestic surveillance program and
refused to sign on to its continued use amid concerns about its legality and
oversight, according to officials with knowledge of the tense internal debate.
The concerns appear to have played a part in the temporary suspension of the
secret program.

The concerns prompted two of President Bush's most senior aides - Andrew H. Card
Jr., his chief of staff, and Alberto R. Gonzales, then White House counsel and
now attorney general - to make an emergency visit to a Washington hospital in
March 2004 to discuss the program's future and try to win the needed approval
from Attorney General John Ashcroft, who was hospitalized for gallbladder
surgery, the officials said.

The unusual meeting was prompted because Mr. Ashcroft's top deputy, James B.
Comey, who was acting as attorney general in his absence, had indicated he was
unwilling to give his approval to certifying central aspects of the program, as
required under the White House procedures set up to oversee it.

With Mr. Comey unwilling to sign off on the program, the White House went to Mr.
Ashcroft - who had been in the intensive care unit at George Washington
University Hospital with pancreatitis and was housed under unusually tight
security - because "they needed him for certification," according to an official
briefed on the episode. The official, like others who discussed the issue, spoke
on the condition of anonymity because of the classified nature of the program.

Mr. Comey declined to comment, and Mr. Gonzales could not be reached.

Accounts differed as to exactly what was said at the hospital meeting between
Mr. Ashcroft and the White House advisers. But some officials said that Mr.
Ashcroft, like his deputy, appeared reluctant to give Mr. Card and Mr. Gonzales
his authorization to continue with aspects of the program in light of concerns
among some senior government officials about whether the proper oversight was in
place at the security agency and whether the president had the legal and
constitutional authority to conduct such an operation.

It is unclear whether the White House ultimately persuaded Mr. Ashcroft to give
his approval to the program after the meeting or moved ahead without it.

The White House and Mr. Ashcroft, through a spokeswoman, declined to comment
Saturday on the hospital meeting. A White House spokeswoman, Jeannie Mamo, said
she could not discuss any aspect of the meeting or the internal debate
surrounding it, but said: "As the president has stated, the intelligence
activities that have been under way to prevent future terrorist attacks have
been approved at the highest levels of the Justice Department."

The domestic eavesdropping program was publicly disclosed in mid-December by The
New York Times. President Bush, in acknowledging the existence of the program in
a televised appearance two weeks ago, said that tight controls had been imposed
over the surveillance operation and that the program was reviewed every 45 days
by top government officials, including at the Justice Department.

"The review includes approval by our nation's top legal officials, including the
attorney general and the counsel to the president," Mr. Bush said, adding that
he had personally reauthorized the program's use more than 30 times since it
began. He gave no indication of any internal dissent over the reauthorization.

Questions about the surveillance operation are likely to be central to a
Congressional hearing planned by Senator Arlen Specter, the Pennsylvania
Republican who heads the Judiciary Committee. Mr. Specter, like some other
Republicans and many Democrats in Congress, has voiced deep concerns about the
program and Mr. Bush's legal authority to bypass the courts to order domestic
wiretaps without warrants.

What is known is that in early 2004, about the time of the hospital visit, the
White House suspended parts of the program for several months and moved ahead
with more stringent requirements on the security agency on how the program was
used, in part to guard against abuses.

The concerns within the Justice Department appear to have led, at least in part,
to the decision to suspend and revamp the program, officials said. The Justice
Department then oversaw a secret audit of the surveillance program.

The audit examined a selection of cases to see how the security agency was
running the program. Among other things, it looked at how agency officials went
about determining that they had probable cause to believe that people in the
United States, including American citizens, had sufficient ties to Al Qaeda to
justify eavesdropping on their phone calls and e-mail messages without a court
warrant. That review is not known to have found any instances of abuses.

The warrantless domestic eavesdropping program was first authorized by President
Bush in the months after the Sept. 11, 2001, attacks, officials said. Initially,
it was focused on communications into and out of Afghanistan, including calls
between Afghanistan and the United States, people familiar with the operation
said. But the program quickly expanded.

Several senior government officials have said that when the special operation
first began, there were few controls on it. Some agency officials wanted nothing
to do with it, apparently fearful of participating in an illegal operation,
officials have said.

At its outset in 2002, the surveillance operation was so highly classified that
even Larry Thompson, the deputy attorney general to Mr. Ashcroft, who was active
in most of the government's most classified counterterrorism operations, was not
given access to the program.

That led to uncertainties about the chain of command in overseeing law
enforcement activities connected to the program, officials said, and it appears
to have spurred concerns within the Justice Department over its use. Mr.
Thompson's successor, Mr. Comey, was eventually authorized to take part in the
program and to review intelligence material that grew out of it, and officials
said he played a part in overseeing the reforms that were put in place in 2004.

But even after the imposition of the new restrictions last year, the agency
maintained the authority to choose its eavesdropping targets and did not have to
get specific approval from the Justice Department or other Bush officials before
it began surveillance on phone calls or e-mail messages. The decision on whether
someone is believed to be linked to Al Qaeda and should be monitored is left to
a shift supervisor at the agency, the White House has said.

The White House has vigorously defended the legality and value of the domestic
surveillance program, saying it has saved many American lives by allowing the
government to respond more quickly and flexibly to threats. The Justice
Department, meanwhile, said Friday that it had opened a criminal investigation
into the unauthorized disclosure of the existence of the program.

*


New York Times --

January 1, 2006
BEHIND THE EAVESDROPPING STORY, A LOUD SILENCE
By Byron Calame

http://www.nytimes.com/2006/01/01/opinion/01publiceditor.html

THE New York Times's explanation of its decision to report, after what it said
was a one-year delay, that the National Security Agency is eavesdropping
domestically without court-approved warrants was woefully inadequate. And I have
had unusual difficulty getting a better explanation for readers, despite the
paper's repeated pledges of greater transparency.

For the first time since I became public editor, the executive editor and the
publisher have declined to respond to my requests for information about news-
related decision-making. My queries concerned the timing of the exclusive Dec.
16 article about President Bush's secret decision in the months after 9/11 to
authorize the warrantless eavesdropping on Americans in the United States.

I e-mailed a list of 28 questions to Bill Keller, the executive editor, on Dec.
19, three days after the article appeared. He promptly declined to respond to
them. I then sent the same questions to Arthur Sulzberger Jr., the publisher,
who also declined to respond. They held out no hope for a fuller explanation in
the future.

Despite this stonewalling, my objectives today are to assess the flawed handling
of the original explanation of the article's path into print, and to offer a few
thoughts on some factors that could have affected the timing of the article. My
intention is to do so with special care, because my 40-plus years of
newspapering leave me keenly aware that some of the toughest calls an editor can
face are involved here - those related to intelligence gathering, election-time
investigative articles and protection of sources. On these matters, reasonable
disagreements can abound inside the newsroom.

(A word about my reporting for this column: With the top Times people involved
in the final decisions refusing to talk and urging everyone else to remain
silent, it seemed clear to me that chasing various editors and reporters
probably would yield mostly anonymous comments that the ultimate decision-makers
would not confirm or deny. So I decided not to pursue those who were not
involved in the final decision to publish the article - or to refer to Times
insiders quoted anonymously in others' reporting.)

At the outset, it's essential to acknowledge the far-reaching importance of the
eavesdropping article's content to Times readers and to the rest of the nation.
Whatever its path to publication, Mr. Sulzberger and Mr. Keller deserve credit
for its eventual appearance in the face of strong White House pressure to kill
it. And the basic accuracy of the account of the eavesdropping stands
unchallenged - a testament to the talent in the trenches.

But the explanation of the timing and editing of the front-page article by James
Risen and Eric Lichtblau caused major concern for scores of Times readers. The
terse one-paragraph explanation noted that the White House had asked for the
article to be killed. "After meeting with senior administration officials to
hear their concerns, the newspaper delayed publication for a year to conduct
additional reporting," it said. "Some information that administration officials
argued could be useful to terrorists has been omitted."

If Times editors hoped the brief mention of the one-year delay and the omitted
sensitive information would assure readers that great caution had been exercised
in publishing the article, I think they miscalculated. The mention of a one-year
delay, almost in passing, cried out for a fuller explanation. And the gaps left
by the explanation hardly matched the paper's recent bold commitments to readers
to explain how news decisions are made.

At the very least, The Times should have told readers in the article why it
could not address specific issues. At least some realization of this kicked in
rather quickly after publication. When queried by reporters for other news media
on Dec. 16, Mr. Keller offered two prepared statements that shed some additional
light on the timing and handling of the article.

The longer of Mr. Keller's two prepared statements said the paper initially held
the story based on national security considerations and assurances that everyone
in government believed the expanded eavesdropping was legal. But when further
reporting showed that legal questions loomed larger than The Times first thought
and that a story could be written without certain genuinely sensitive technical
details, he said, the paper decided to publish. (Mr. Keller's two prepared
statements, as well as some thoughtful reader comments, are posted on the Public
Editor's Web Journal.)

Times readers would have benefited if the explanation in the original article
had simply been expanded to include the points Mr. Keller made after
publication. And if the length of that proved too clunky for inclusion in the
article, the explanation could have been published as a separate article near
the main one. Even the sentence he provided me as to why he would not answer my
questions offered some possible insight.

Protection of sources is the most plausible reason I've been able to identify
for The Times's woeful explanation in the article and for the silence of Mr.
Sulzberger and Mr. Keller. I base this on Mr. Keller's response to me: "There is
really no way to have a full discussion of the back story without talking about
when and how we knew what we knew, and we can't do that."

Taken at face value, Mr. Keller seems to be contending that the sourcing for the
eavesdropping article is so intertwined with the decisions about when and what
to publish that a full explanation could risk revealing the sources. I have no
trouble accepting the importance of confidential sourcing concerns here. The
reporters' nearly one dozen confidential sources enabled them to produce a
powerful article that I think served the public interest.

With confidential sourcing under attack and the reporters digging in the
backyards of both intelligence and politics, The Times needs to guard the
sources for the eavesdropping article with extra special care. Telling readers
the time that the reporters got one specific fact, for instance, could turn out
to be a dangling thread of information that the White House or the Justice
Department could tug at until it leads them to the source. Indeed, word came
Friday that the Justice Department has opened an investigation into the
disclosure of classified information about the eavesdropping.

The most obvious and troublesome omission in the explanation was the failure to
address whether The Times knew about the eavesdropping operation before the Nov.
2, 2004, presidential election. That point was hard to ignore when the
explanation in the article referred rather vaguely to having "delayed
publication for a year." To me, this language means the article was fully
confirmed and ready to publish a year ago - after perhaps weeks of reporting on
the initial tip - and then was delayed.

Mr. Keller dealt directly with the timing of the initial tip in his later
statements. The eavesdropping information "first became known to Times
reporters" a year ago, he said. These two different descriptions of the
article's status in the general vicinity of Election Day last year leave me
puzzled.

For me, however, the most obvious question is still this: If no one at The Times
was aware of the eavesdropping prior to the election, why wouldn't the paper
have been eager to make that clear to readers in the original explanation and
avoid that politically charged issue? The paper's silence leaves me with
uncomfortable doubts.

On the larger question of why the eavesdropping article finally appeared when it
did, a couple of possibilities intrigue me.

One is that Times editors said they discovered there was more concern inside the
government about the eavesdropping than they had initially been told. Mr.
Keller's prepared statements said that "a year ago," officials "assured senior
editors of The Times that a variety of legal checks had been imposed that
satisfied everyone involved that the program raised no legal questions." So the
paper "agreed not to publish at that time" and continued reporting.

But in the months that followed, Mr. Keller said, "we developed a fuller picture
of the concerns and misgivings that had been expressed during the life of the
program" and "it became clear those questions loomed larger within the
government than we had previously understood."

The impact of a new book about intelligence by Mr. Risen on the timing of the
article is difficult to gauge. The book, "State of War: The Secret History of
the CIA and the Bush Administration," was not mentioned in the Dec. 16 article.
Mr. Keller asserted in the shorter of his two statements that the article wasn't
timed to the forthcoming book, and that "its origins and publication are
completely independent of Jim's book."

The publication of Mr. Risen's book, with its discussion of the eavesdropping
operation, was scheduled for mid-January - but has now been moved up to Tuesday.
Despite Mr. Keller's distancing of The Times from "State of War," Mr. Risen's
publisher told me on Dec. 21 that the paper's Washington bureau chief had talked
to her twice in the previous 30 days about the book.

So it seems to me the paper was quite aware that it faced the possibility of
being scooped by its own reporter's book in about four weeks. But the key
question remains: To what extent did the book cause top editors to shrug off the
concerns that had kept them from publishing the eavesdropping article for
months?

A final note: If Mr. Risen's book or anything else of substance should open any
cracks in the stone wall surrounding the handling of the eavesdropping article,
I will have my list of 28 questions (35 now, actually) ready to e-mail again to
Mr. Keller.

[ The public editor serves as the readers' representative. His opinions and
conclusions are his own. His column appears at least twice monthly in this
section. ]

---

E-mail:   public@nytimes.com

Phone:    (212) 556-7652

Address:  Public Editor
          The New York Times
          229 West 43rd St.
          New York, NY 10036-3959

*


New York Times --

Public Editor's Web Journal
MORE ON THE EAVESDROPPING ARTICLE

bcalame - 4:10 PM ET December 31, 2005 (#25 of 25)

http://forums.nytimes.com/top/opinion/readersopinions/forums/thepubliceditor/
publiceditorswebjournal/index.html?offset=25&fid=.f779788/25


The public editor's column in The Times of Jan. 1 takes a look at how the paper
explained to readers the decision-making that led to the publication on Dec. 16
of the article on the warrantless eavesdropping on Americans in the United
States.

In preparing the column, I got copies of two prepared statements from Bill
Keller, the executive editor, that the press office of The New York Times Co.
had disseminated in response to queries from other news media the day the
eavesdropping article appeared. Given the paucity of comment from The Times
about the article, I think readers might find these statements interesting.

Just after the Keller prepared statements, you will find some letters from
readers about the paper's decision to publish the article after a one-year
delay.

Finally, several news articles and commentaries about The Times's article have
appeared in print and online in the past two weeks. Here are links to news
stories that appeared in The Washington Post,

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/16/
AR2005121601716.html

the Los Angeles Times,

http://www.latimes.com/news/nationworld/nation/
la-na-media20dec20,1,3657594.story

The New York Observer,

http://www.observer.com/printpage.asp?iid=12123&ic=Off+the+Record

and on NPR.

http://www.npr.org/templates/story/story.php?storyId=5058710


Those who have commented include Jonathan Alter of Newsweek,

http://www.msnbc.msn.com/id/10536559/site/newsweek/

Tim Rutten of the Los Angeles Times,

http://www.latimes.com/news/columnists/cl-et-rutten24dec24,1,457836.column

Jack Shafer on Slate,

http://www.slate.com/id/2133356/

and Jay Rosen on his blog PressThink.

http://journalism.nyu.edu/pubzone/weblogs/pressthink/2005/12/24/spy_nyt.html


* Keller Prepared Statements on December 16, 2005...

[1]

We start with the premise that a newspaper's job is to publish information that
is a matter of public interest. Clearly a secret policy reversal that gives an
American intelligence agency discretion to monitor communications within the
country is a matter of public interest. From the outset, the question was not
why we would publish it, but why we would not.

A year ago, when this information first became known to Times reporters, the
Administration argued strongly that writing about this eavesdropping program
would give terrorists clues about the vulnerability of their communications and
would deprive the government of an effective tool for the protection of the
country's security. Officials also assured senior editors of The Times that a
variety of legal checks had been imposed that satisfied everyone involved that
the program raised no legal questions. As we have done before in rare instances
when faced with a convincing national security argument, we agreed not to
publish at that time.

We also continued reporting, and in the ensuing months two things happened that
changed our thinking.

First, we developed a fuller picture of the concerns and misgivings that had
been expressed during the life of the program. It is not our place to pass
judgement on the legal or civil liberties questions involved in such a program,
but it became clear those questions loomed larger within the government than we
had previously understood.

Second, in the course of subsequent reporting we satisfied ourselves that we
could write about this program -- withholding a number of technical details --
in a way that would not expose any intelligence-gathering methods or
capabilities that are not already on the public record. The fact that the
government eavesdrops on those suspected of terrorist connections is well-known.
The fact that the N.S.A. can legally monitor communications within the United
States with a warrant from the Foreign Intelligence Surveillance Court is also
public information. What is new is that the N.S.A. has for the past three years
had the authority to eavesdrop on Americans and others inside the United States
without a warrant. It is that expansion of authority -- not the need for a
robust anti-terror intelligence operation -- that prompted debate within the
government, and that is the subject of the article.


[2]

The story we published this morning is the product of hard work by two
reporters, Jim Risen and Eric Lichtblau, over the course of more than a year.
Its origins and its publication are completely independent of Jim's book. The
Times gave Jim a leave to work on his book, but otherwise has no connection to
it.

The publication was not timed to the Iraqi election, the Patriot Act debate,
Jim's forthcoming book or any other event. We published the story when we did
because after much hard work it was fully reported, checked and ready, and
because, after listening respectfully to the Administration's objections, we
were convinced there was no good reason not to publish it.

*


New York Times --

Public Editor's Web Journal
READERS RESPOND TO TIMING OF EAVESDROPPING ARTICLE

bcalame - 4:03 PM ET December 31, 2005 (#24 of 25)

http://forums.nytimes.com/top/opinion/readersopinions/forums/thepubliceditor/
publiceditorswebjournal/index.html?offset=24&fid=.f779788/24


Would it be possible for The New York Times to provide at least a rudimentary
timeline on the N.S.A. story?

Obviously, the big thing everyone wants to know is whether the story could have
run before the 2004 election. But I would also like to know if the temporary
suspension of the program referenced in the Sunday follow up story occurred
before the election or not. It might tell us a good bit about the sincerity or
cynicism of the administration. If (a big if) The Times found out about the
warrantless eavesdropping before the election and if (a big if) the government
suspended it before the election in order to give The New York Times a reason to
hold off, it would appear that politics trumped necessity. If, however, The
Times found out before the election, but the administration suspended the
practice after the election, it would at least indicate that politics was not a
primary consideration in the suspension.

The New York Times can answer at least some, if not all, of those timing
questions. Could you please help your readers out.

By the way, the paper is to be commended for the excellent reporting, and
probably does not deserve all the criticism it is getting over withholding the
information. I might not agree with the decision, but I can see how difficult a
choice lay before the editors. The lapses, if any, in this case do not seem to
be on the order of the reporting on the C.I.A leak and W.M.D. At least not given
what we know now.

John Downey
Winston-Salem, North Carolina

---


In the interest of greater transparency, readers deserve further explanation as
to why The Times delayed publication of this important domestic-surveillance
story for one year.

I would ask, why would those same concerns not be applicable today, one year
later? It seems to me that holding back helped perpetuate this infringement of
Fourth Amendment rights and further embolden an administration that reflexively
sanctions the amassing of unchecked powers. Yesterday's strong editorial called
for Mr. Bush to "retract and renounce his secret directive and halt any illegal
spying, or Congress should find a way to force him to do it. Perhaps the
Congressional leaders who were told about the program could get the ball
rolling." Perhaps this newspaper and powerful member of the Fourth Estate -- who
also knew about the program -- could move the ball along by addressing its own
lack of timely oversight -- a point conveniently overlooked in Sunday's
editorial. It is up to you, as the public editor, to look into this troubling
matter. The promise printed in the left-hand corner of every front page does not
read "All the News That's Fit to Print One Year Later."

Barbara Allen Kenney
Atlanta, Georgia

---


As you are probably aware, anti-Bush partisans are having a field day suggesting
that the Times story could have influenced the 2004 election had it not been
delayed. At the other end of the spectrum, pro-administration pundits have
suggested the story was carefully timed to correspond with both debate over
renewal of key parts of the USA Patriot Act and with the recent elections in
Iraq.

It would be of great interest to all of the Times' readers to know more about
the timing of the story's publication. Please look into this matter.

Christopher Zinsli
Bayonne, New Jersey

---


I am so disillusioned with The New York Times, more specifically with Mr.
Sulzberger and Mr. Keller. I just reread your column "When the Newspaper is the
News." Might I add that another thing The New York Times could do to assure
readers that it is fully honest with them is to actually be fully honest with
them.

Obviously, Mr. Keller and Mr. Sulzberger knew that finally publishing the
domestic spying story would raise a host of questions about their actions and
motives. They could have chosen to be upfront; they obviously did not. Readers
of The New York Times are left to scouring other news sources to try and find
the truth. If what we have read or heard so far is truthful, not only did Mr.
Sulzberger and Mr. Keller decide not to be forthcoming, they were willing to
obfuscate. Stating that The New York Times held the story for a year is quite
different from what I have read in other sources -- that the story had been held
since before the 2004 elections. Does this remind anyone else besides me of
Judith Miller's willingness to call Mr. Libby "a former Hill staffer".

The current strategy of declining to provide full and accurate information about
The New York Times's handling of this story, in fact declining to provide any
information, seems to be more the strategy of a politician caught in wrongdoing,
not newspapermen whose job it is to provide "all the news that's fit to print".

All this begs the question: What's wrong at The New York Times? This inquiring
reader would like to know. Sadly, I no longer trust The New York Times as a news
source. There is no way for me to know what's being withheld from me, or when
it's being withheld, so I must decide to distrust all.

Many years of experience have taught me one thing -- when there are this many
problems in an organization, look to the top for the source of problems.

Ralph D. Sikes
Houston, Texas

---


I was shocked to learn that The New York Times had sat on the N.S.A.
eavesdropping story for more than a year. I don't even recognize this paper
anymore. Jayson Blair, Judith Miller and now this? What else is NYT withholding?
And why hasn't the newspaper provided a full explanation of why it spiked this
story for more than a year. Your Dec. 4 column urged greater transparency when
The New York Times. I applauded your suggestions, but I'm wondering if the
editors at the paper even read it. I am horribly disappointed in the newspaper
I've been faithfully reading for more than 25 years! Perhaps it's time for
Sulzberger and his coterie of top editors to leave.

Lynn O'Shaughnessy
La Mesa, California

---


The New York Times learned of the government's secret surveillance program one
year ago. For an entire year, that is, the Times helped to veil a program that
it now suggests is illicit, at the behest of an administration that it already
suspected of exaggerating threats in order to accomplish policy goals.

Does not this silence amount to tacit approval? Or even collusion? At the least,
it shows a newspaper pliant and credulous where is should be skeptical. Again.

We deserve a forthright explanation of how this decision not to disclose took
place, as well as of the timing of the eventual disclosure.

Alexandra Huneeus
Oakland, California

* * *