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NEWS DIGEST 2006.06.01 - 2006.08.09
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Washington Post --

August 9, 2006
WAR CRIMES ACT CHANGES WOULD REDUCE THREAT OF PROSECUTION
By R. Jeffrey Smith

http://www.washingtonpost.com/wp-
dyn/content/article/2006/08/08/AR2006080801276.html

The Bush administration has drafted amendments to a war crimes law that would
eliminate the risk of prosecution for political appointees, CIA officers and
former military personnel for humiliating or degrading war prisoners, according
to U.S. officials and a copy of the amendments.

Officials say the amendments would alter a U.S. law passed in the mid-1990s that
criminalized violations of the Geneva Conventions, a set of international
treaties governing military conduct in wartime. The conventions generally bar
the cruel, humiliating and degrading treatment of wartime prisoners without
spelling out what all those terms mean.

The draft U.S. amendments to the War Crimes Act would narrow the scope of
potential criminal prosecutions to 10 specific categories of illegal acts
against detainees during a war, including torture, murder, rape and hostage-
taking.

Left off the list would be what the Geneva Conventions refer to as "outrages
upon [the] personal dignity" of a prisoner and deliberately humiliating acts --
such as the forced nakedness, use of dog leashes and wearing of women's
underwear seen at the U.S.-run Abu Ghraib prison in Iraq -- that fall short of
torture.

"People have gotten worried, thinking that it's quite likely they might be under
a microscope," said a U.S. official. Foreigners are using accusations of
unlawful U.S. behavior as a way to rein in American power, the official said,
and the amendments are partly meant to fend this off.

The plan has provoked concern at the International Committee of the Red Cross,
the entity responsible for safeguarding the Geneva Conventions. A U.S official
confirmed that the group's lawyers visited the Pentagon and the State Department
last week to discuss the issue but left without any expectation that their
objections would be heeded.

The administration has not officially released the draft amendments. Although
they are part of broader legislation on military courts still being discussed
within the government, their substance has already been embraced by key
officials and will not change, two government sources said.

No criminal prosecutions have been brought under the War Crimes Act, which
Congress passed in 1996 and expanded in 1997. But 10 experts on the laws of war,
who reviewed a draft of the amendments at the request of The Washington Post,
said the changes could affect how those involved in detainee matters act and how
other nations view Washington's respect for its treaty obligations.

"This removal of [any] reference to humiliating and degrading treatment will be
perceived by experts and probably allies as 'rewriting' " the Geneva
Conventions, said retired Army Lt. Col. Geoffrey S. Corn, who was recently chief
of the war law branch of the Army's Office of the Judge Advocate General. Others
said the changes could affect how foreigners treat U.S. soldiers.

The amendments would narrow the reach of the War Crimes Act, which now states in
general terms that Americans can be prosecuted in federal criminal courts for
violations of "Common Article 3" of the Geneva Conventions, which the United
States ratified in 1949.

U.S. officials have long interpreted the War Crimes Act as applying to
civilians, including CIA officers, and former U.S. military personnel.
Misconduct by serving military personnel is handled by military courts, which
enforce a prohibition on cruelty and mistreatment. The Army Field Manual, which
is being revised, separately bars cruel and degrading treatment, corporal
punishment, assault, and sensory deprivation.

Common Article 3 is considered the universal minimum standard of treatment for
civilian detainees in wartime. It requires that they be treated humanely and
bars "violence to life and person," including murder, mutilation, cruel
treatment and torture. It further prohibits "outrages upon personal dignity"
such as "humiliating and degrading treatment." And it prohibits sentencing or
execution by courts that fail to provide "all the judicial guarantees . . .
recognized as indispensable by civilized peoples."

The risk of possible prosecution of officials, CIA officers and former service
personnel over alleged rough treatment of prisoners arises because the Bush
administration, from January 2002 until June, maintained that the Geneva
Conventions' protections did not apply to prisoners captured in Afghanistan.

As a result, the government authorized interrogations using methods that U.S.
military lawyers have testified were in violation of Common Article 3; it also
created a system of military courts not specifically authorized by Congress,
which denied defendants many routine due process rights.

The Supreme Court decided in Hamdan v. Rumsfeld on June 29, however, that the
administration's policy of not honoring the Geneva Conventions was illegal, and
that prisoners in the fight against al-Qaeda are entitled to such protections.

U.S. officials have since responded in three ways: They have asked Congress to
pass legislation blocking the prisoners' right to sue for the enforcement of
those protections. They have drafted legislation allowing the consideration of
intelligence-gathering needs during interrogations, in place of an absolute
human rights standard.

They also formulated the War Crimes Act amendments spelling out some serious
crimes and omitting altogether some that U.S. officials describe as less
serious. For example, two acts considered under international law as
constituting "outrages" -- rape and sexual abuse -- are listed as prosecutable.

But humiliations, degrading treatment and other acts specifically deemed as
"outrages" by the international tribunal prosecuting war crimes in the former
Yugoslavia -- such as placing prisoners in "inappropriate conditions of
confinement," forcing them to urinate or defecate in their clothes, and merely
threatening prisoners with "physical, mental, or sexual violence" -- would not
be among the listed U.S. crimes, officials said.

"It's plain that this proposal would abrogate portions of Common Article 3,"
said Derek P. Jinks, a University of Texas assistant professor of law and author
of a forthcoming book on the Geneva Conventions. The "entire family of
techniques" that military interrogators used to deliberately degrade and
humiliate, and thus coerce, detainees at Guantanamo Bay, Cuba, and at Abu Ghraib
"is not addressed in any way, shape or form" in the new language authorizing
prosecutions, he said.

At a Senate Armed Services Committee hearing last Wednesday, however, Attorney
General Alberto R. Gonzales complained repeatedly about the ambiguity and broad
reach of the phrase "outrages upon personal dignity." He said that, "if left
undefined, this provision will create an unacceptable degree of uncertainty for
those who fight to defend us from terrorist attack."

Lawmakers from both parties expressed skepticism at the hearing. Sen. John
McCain (R-Ariz.) said the military's top uniformed lawyers had told him they are
training to comply with Common Article 3 and that complying would not impede
operations.

If the underlying treaty provision is too vague, asked Sen. Susan Collins (R-
Maine), then how could the Defense Department instruct its personnel in a July 7
memorandum to certify their compliance with it? Deputy Defense Secretary Gordon
England, who had signed the memo, responded at the hearing that he was concerned
that "degrading" and "humiliating" are relative terms.

"I mean, what is degrading in one society may not be degrading in another, or
may be degrading in one religion, not in another religion," England said. "And
since it does have an international interpretation, which is generally, frankly,
different than our own, it becomes very, very relevant" to define the meaning in
new legislation.

This viewpoint appears to have won over the top uniformed military lawyers, who
have criticized other aspects of the administration's detainee policy but said
that they support the thrust of these amendments. Maj. Gen. Scott C. Black, the
Army's judge advocate general, said in testimony that the changes can "elevate"
the War Crimes Act "from an aspiration to an instrument" by defining offenses
that can be prosecuted instead of endorsing "the ideals of the laws of war."

Lawyer David Rivkin, formerly on the staff of the Justice Department and the
White House counsel's office, said "it's not a question of being stingy but
coming up with a well-defined statutory scheme that would withstand
constitutional challenges and would lead to successful prosecutions." Former
Justice Department lawyer John C. Yoo similarly said that U.S. soldiers and
agents should "not be beholden to the definition of vague words by international
or foreign courts, who often pursue nakedly political agendas at odds with the
United States."

But Corn, the Army's former legal expert, said that Common Article 3 was,
according to its written history, "left deliberately vague because efforts to
define it would invariably lead to wrongdoers identifying 'exceptions,' and
because the meaning was plain -- treat people like humans and not animals or
objects." Eugene R. Fidell, president of the nonprofit National Institute of
Military Justice, said that laws governing military conduct are filled with
broadly described prohibitions that are nonetheless enforceable, including
"dereliction of duty," "maltreatment" and "conduct unbecoming an officer."

Retired Rear Adm. John D. Hutson, the Navy's top uniformed lawyer from 1997 to
2000 and now dean of the Franklin Pierce Law Center, said his view is "don't
trust the motives of any lawyer who changes a statutory provision that is short,
clear, and to the point and replaces it with something that is much longer, more
complicated, and includes exceptions within exceptions."

*

Legal Times --

August 9, 2006

HOW AN OVERACHIEVING LAW PROFESSOR TOPPLED THE PRESIDENT'S TERROR TRIBUNALS

Georgetown's Neal Katyal: I Never Wanted to Sue the President

By T.R. Goldman

http://www.law.com/jsp/article.jsp?id=1155027927847

Neal Katyal, hands clasped, back straight, feet flat on the floor -- his
fidgeting thumbs the only movement in his body -- faces a speakerphone in a
near-vacant room, ready to moot.

Katyal, a law professor (and, hence, the antithesis of the standard big-firm
luminaries of the Supreme Court bar), had already achieved his stunning Supreme
Court victory, Hamdan v. Rumsfeld, nearly a month earlier. So a visitor might be
forgiven if he were to grab Katyal by the collar, look straight into his bright
and pleasant face, and exhort: "Neal, you won. It's over ... . Stop mooting!"

Katyal, presumably, would pay you no mind. He mooted his Supreme Court case the
day before his March 28 argument, a move so unusual among high court advocates
that, says moot team student member Haven Ward, "it freaked everyone out."

In fact, he mooted his Supreme Court argument 15 times since the granting of
cert on Nov. 17, 2005, honing his delivery skills along the way with lessons
from Joshua Karton, a Los Angeles-based actor who teaches lawyers how to improve
their physical presence, "to have a conversation with the justices, not an
argument," Katyal explains.

And though Katyal was steeped in the law he was arguing, he was not everyone's
first choice. He asked a prominent law professor for advice. "My real advice to
you is to give up the argument," he was told.

"Neal was in a place where he didn't want to be underprepared," notes Stephen
Vladeck, a professor at the University of Miami School of Law and a key moot
participant. "And the best sort of means of ensuring that you're not
underprepared is to be overprepared."

And so, on a sweltering July day, in a conference room at Georgetown Law Center,
where Katyal, 36, is a tenured professor, he was spending an hour mooting his
upcoming testimony before the Senate Armed Services Committee.

"Hey, guys, it's Neal," says Katyal into the speakerphone to his five student
mooters, with a mien so calm and affable he could be your local pharmacist or
grocer.

Katyal had never argued before the high court, but in Hamdan he literally took
on George W. Bush, arguing that the military commissions the president
established to try the Guantanamo Bay Naval Base detainees -- including his
client, Salim Hamdan, a former driver for Osama bin Laden -- were illegal. The
Court, in a 5-3 decision written by its senior justice, John Paul Stevens,
agreed.

It was a complex case that stretched back three years, implicating not only the
limits of executive power but delving into the nature of the interrelationship
of all three branches of government.

"I know what I told Neal three years ago. I thought it was unwinnable," says
Katyal's Yale Law School professor, Akhil Amar, who first met Katyal in 1992 and
calls him "the most memorable student I've ever had."

Katyal first argued the case Oct. 25, 2004, before Judge James Robertson of the
U.S. District Court for the District of Columbia and won. Robertson was reversed
by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, which
included soon-to-be Supreme Court Chief Justice John Roberts Jr. Finally, he won
again when the Supreme Court announced its decision June 29. (Because he ruled
at the appellate level, Roberts recused himself from the case.)

In the Georgetown conference room, Katyal polishes off his moot in an hour,
while three students playing an unusually bright group of "senators" critique
his five-minute opening statement, throwing question after skeptical question
back at him. "What do you think my best points are -- if any?" Katyal asks, his
seeming self-effacement hard to reconcile with his command of the subject.

If the moot helped, there was scarcely anybody at the next day's hearing -- on
possible congressional responses to Hamdan -- to notice. Katyal was on the
second panel, and when he delivered his testimony at noon, the only senators
present in the Russell Building's regal Caucus Room were Committee Chairman John
Warner, R-Va., and ranking member Carl Levin, D-Mich. Still, Katyal appeared to
be fine-tuning his address throughout the morning.

"It’s the first time I've ever laid eyes on him," said Warner, 79, when asked
about Katyal after the hearing. "But he speaks with conviction, and I loved the
phrase 'The last thing in the world I ever wanted to do was sue the president.'"

THE BRIGHTEST STAR

Lt. Cmdr. Charles Swift, an intense and talkative Navy JAG and Katyal's co-
counsel in Hamdan -- a man everyone seems to feel comfortable calling Charlie --
remembers his first meeting with Katyal, in the spring of 2003. "I'm sure Neal
thought his meeting with a bunch of military lawyers would be unproductive. We,
on the other hand, thought, We're about to meet an egghead who doesn't have a
clue how the world works."

And it's true that Katyal's pedigree has been almost entirely academic: a
private Catholic boys school in Wilmette, just north of Chicago; a national
reputation as a champion high school debater; Dartmouth College, followed by a
year coaching the Dartmouth debate team; then Yale Law School, from which he
graduated in 1995.

His law school internships each summer could not have been more propitious.
Summer No. 1: a legal intern in the office of Vice President Al Gore. Summer No.
2: a legal intern in the Office of the Solicitor General. Katyal spent his third
summer at Washington's Hogan & Hartson, where he worked specifically for Supreme
Court litigator and now-Chief Justice Roberts. ("'Go work for John G. Roberts,'"
Katyal says he was told by Miguel Estrada, an assistant solicitor general when
Katyal worked in the office. "'The G,' Estrada added, 'is for 'God.'")

After law school, Katyal spent two years clerking, first for Guido Calabrese,
the former Yale Law School dean who had recently been named a judge on the 2nd
U.S. Circuit Court of Appeals, then for Supreme Court Justice Stephen Breyer.
"It was nonstop typing all day," says Carolyn Shapiro, who clerked with Katyal
and shared an office with him. "He'd just zoom in and pound out stuff," adds
Shapiro, now a law professor at Chicago-Kent College of Law.

Katyal's 1996-97 Supreme Court term was a banner year, with 80 signed opinions,
including Clinton v. Jones (a sitting president could be sued), Printz v. United
States (imposing limits on the federal government's authority), and Washington
v. Glucksberg (no constitutional right to have a physician help you die).

At age 27, just after his Breyer clerkship, Katyal joined the law school faculty
at Georgetown, a job he deferred until the fall of 1999 so he could be the
adviser for national security affairs in the Clinton Justice Department.

Katyal was recommended for the DOJ job by Kumiki Gibson, the former Gore counsel
whom Katyal got to know during that first summer internship.

Katyal was the point person at the DOJ during the year in which the independent
counsel statute, which gave Bill Clinton investigator Kenneth Star his job, was
set to lapse. Katyal and a small team crafted the attorney general's special
counsel regulations that are now on the books. "Laws like the independent
counsel statute are a real interference with the clean lines the Founders
intended," Katyal says.

During his 18 months at the DOJ, where in his national security role he had his
first experiences with military lawyers, Katyal also worked his way through the
legal conundrum of how the United States could return to Pakistan several
hundred million dollars for 28 F-16s that Pakistan paid for in 1989 but never
received. "I enjoy figuring my way out of a maze," says Katyal. "If somebody
says we can't do x or y, I like figuring out a way to do x or y."

"It was a funny thing," he muses. "An Indian figuring out a way to give money
back to Pakistan."

A FUNKY KINDA DUDE

Katyal's parents emigrated separately from India's Punjab region in the early
1960s, and while Katyal rarely wears his Indian roots on his sleeve, he does not
consciously cover them up, either. His parents did not know each other before
they returned to India in 1968 for an arranged marriage. Katyal, following Hindu
tradition, arrived at his own wedding in New York state on a horse.

The elder Katyal, who died after Neal took the Hamdan case but before it reached
the Supreme Court, was a petroleum engineer; his mother is a pediatrician.

It was a relatively secular household, as were many Hindu households in that
first wave of Indian immigrants to the United States. But it was socially
conscious. "My father was very invested in politics -- he loved to watch the
news, to think about what was going on in the world," says Katyal's only
sibling, Sonia Katyal. "He treated Neal and I like adults."

Katyal says he was never drawn to litigation as a career, but he is not a model
of the cloistered academic, either.

He's an indie-music fan whose students make him CD compilations and a regular at
the 9:30 Club in the District's U Street corridor. Katyal just started writing a
wine column for The Indian-American magazine. He's also written for Slate and
other mainstream publications. He gave an interview to the relatively hip Web
site dcist, which chronicles the local political, sports and arts scenes, noting
that he celebrated his Supreme Court victory by drinking a Belgian beer, Leffe
Brune.

And he pulled six minutes recently on "The Colbert Report," fending off
questions like, "How old were you when you said to yourself, 'I am taking this
country down?'" by responding with a lecture on the principle of rule under law.

He is surrounded by the law; while his wife is a doctor, his brother-in-law is
Jeffrey Rosen, a journalist for The New Republic and a George Washington
University law professor. His sister is a law professor at Fordham University.

For the past year and a half, Katyal's also been represented by International
Creative Management's lecture department, alongside about 100 other people,
ranging from Alan Alda to Frank Gehry to Pete Hamill to Patti LaBelle. "I'm
probably the last person on their Web site," he says dismissively, adding that
so far he's gotten only a handful of lectures from the deal, although he now
expects the speaking gigs to pick up, perhaps considerably.

As might the hate messages, which Katyal says are often no more than expletive-
laden rants accusing him of siding with the enemy. For every one piece of hate
mail, however, "there are 10 supportive e-mails from [American] troops, saying,
'Thank you for defending me and my cause, because if I'm caught in some other
country, what's going to save me from a beheading, except for the fact that the
U.S. plays by rules,'" Katyal says.

In the Indian-American community, Katyal is already a hero. A lengthy profile
last fall in Indian Life and Style magazine describes Katyal like this: "Belying
his over-six-foot frame, muscular build and an authoritative Greco-Roman nose,
Katyal speaks surprisingly softly even on issues he feels passionately about."
Says Katyal, who is 5 feet 10 inches: "It was ridiculous. My mom didn't even
believe everything in there."

A BIG-DEAL REQUEST

If Katyal was looking for a maze to master, Hamdan was it. The case was
intensely political, and for someone with possible aspirations to return to a
Democratic administration, ideally as the national security adviser,
representing bin Laden's driver didn't make any sense. The case was notably
complex, as well.

"We were out there on questions of law," notes Joseph McMillan, a partner in
Seattle's Perkins Coie who was integrally involved in the case. "We're citing
commentaries to the Geneva Convention and Winthrop's 'Military Law and
Precedents' from 1920," says McMillan. "This was not a case where there was a
well-developed body of precedent."

Hamdan, in fact, dealt with six specific areas of law, explains Amar, the Yale
Law School scholar: "Habeas, retroactivity, military justice, jurisdiction-
stripping, the law of war, and international relations and the Geneva Convention
-- each of which is not even taught in most law schools."

Katyal says that when he first read the White House news release announcing the
establishment of the military commissions, he thought it was a hoax. "I'm a
presidential deferentialist, but I went into my classroom and said, 'Hah. I’ve
found something that's totally unconstitutional.'"

He wrote a Yale Law Journal article with Harvard law professor Lawrence Tribe in
April 2002, arguing the commissions were illegal, and in early 2003, got in
touch with the Office of Military Commissions' then-acting chief defense
counsel, Col. Will Gunn.

"Neal made me aware of the law review piece and told me he just wanted to be of
assistance," recalls Gunn, who retired from the Air Force last year and is now
president of the Boys and Girls Clubs of Greater Washington. Civilian lawyers
are permissible under the commission rules.

Gunn, in turn, put two of his defense counsel, Lt. Cmdr. Swift and Lt. Cmdr.
Philip Sundel, in touch with Katyal. They hit it off.

Things really got rolling in November 2003, when the Supreme Court granted cert
in Rasul v. Bush, the case that would determine whether the Guantanamo detainees
could sue in U.S. court.

Swift says the day cert was granted, he got a call from Katyal. "'Dude, you’re
not going to believe this; they got cert. We have to file a [amicus] brief,'"
says Swift, recalling his conversation with Katyal.

At that time, none of the commission defense counsel had even been assigned
clients. But they had potential clients, and early on, it was clear the first
step in representing those clients was to challenge the legality of the
commissions themselves. And they knew a bad decision in Rasul could preclude
that option.

Their gambit: In a Nov. 24, 2003, letter, five defense counsel, including Swift
and Sundel, told Gunn's superior, Department of Defense Deputy General Counsel
Paul Koffsky, that they planned to retain Katyal in one week as a civilian
counsel in order to file an amicus brief in the Rasul case. It was, says Gunn,
"a big-deal request. We were a brand-new office, and we were assigned to the
office of the [DOD] general counsel, which doesn't have a history of taking
positions contrary to the interests of the U.S."

The tactic worked, and permission was granted to file the amicus "if you
determine that such a course of action is necessary for the zealous
representation of clients of your office," Koffsky wrote Gunn on Dec. 30, 2003.

On June 28, 2004, almost two years to the day before Hamdan was decided, the
Supreme Court ruled that the Guantanamo detainees could file habeas petitions in
federal court. "The deal was done in the letter of Nov. 24, when they cc'd Neal
Katyal," says Gunn. Adds Swift, "If they had tried to shut us up, Neal would
have continued."

Katyal never left, however, eventually becoming Hamdan's civilian co-counsel and
ultimately managing a case that had 45 law firms working on about as many amicus
briefs. He mooted the case up and down the East Coast, spending one $15,000
grant and several tens of thousands of dollars more of his own money (each of
the five round-trip flights to Guantanamo Bay to talk with Hamdan, for example,
ran $800).

And he continued to work with Karton, the California advocacy expert. "I'd built
up a sort of formality, a lot of layers, that weren't conducive [to a court
presentation]," Katyal explains. "Josh talks very slowly, and he looks you right
in the eye, and he says, 'Tell me the argument you want to make to the justices
-- and hold my hand while you do it.'"

On July 4, five days after the high court's ruling, Katyal and Swift flew to
Guantanamo to explain the decision to Hamdan, a Yemeni national with a fourth-
grade education. "I was going over the case with him and I said, 'In 50 to 100
years, law students will be reading this case and reading your name.'"

Katyal, who says he never quotes Hamdan directly because the Department of
Defense might think his client is passing on coded messages, says Hamdan's
response was something like this: "Maybe I'll change my name. I just want to go
home."

*


Boston Globe --

August 5, 2006

GROUP OPPOSES LOSS OF SIGNING STATEMENTS
Lawyers say issue is president's use

By Charlie Savage

http://www.boston.com/news/nation/washington/articles/2006/08/05/
group_opposes_loss_of_signing_statements

WASHINGTON -- A group of former Clinton administration lawyers are urging the
American Bar Association to reject its panel's call for presidents to stop
issuing "signing statements" that reserve the right to bypass laws, saying the
problem is with President Bush's use of such statements, not the mechanism
itself.

The ABA's 550-member House of Delegates will vote next week on endorsing a high-
profile task force's conclusion that the Constitution gives presidents two
choices: veto a bill, or sign it and enforce all of it. As the vote nears,
several law professors who helped draft signing statements for President Clinton
have emerged as critics of the task force's recommendations.

Last Monday, Walter Dellinger, a Duke University law professor who headed
Clinton's Office of Legal Counsel, wrote in The New York Times that the ABA
report "misdiagnoses the problem." The problem is not signing statements, he
wrote, but the "fundamentally wrong" constitutional theories Bush has advanced
in his signing statements.

Bush has used such statements to challenge more than 800 laws -- more than all
previous presidents combined -- embracing a controversial theory that puts the
White House largely beyond the reach of congressional restrictions. Among the
laws he has claimed the authority to bypass are a torture ban and oversight
provisions in the USA Patriot Act.

"It is a mistake . . . to respond to these abuses by denying to this and future
presidents the essential authority, in appropriate and limited circumstances, to
decline to execute unconstitutional laws," Dellinger wrote.

He has also joined several other Clinton Justice Department officials in writing
a lengthy essay accusing the ABA task force of distorting the issue out of a
desire to appear bipartisan. The group, which posted its essay on several
prominent blogs this week, includes professors Martin Lederman of Georgetown,
David Barron of Harvard, Dawn Johnsen of Indiana, and Neil Kinkopf of Georgia
State.

They argued that because Congress often lumps many laws into a single bill, it
is sometimes impractical to veto the entire package because a few components
have minor constitutional problems. Take away signing statements, they said, and
presidents probably still will sign such bills -- only the public won't know
that some parts of the bill may not be enforced.

But the Clinton lawyers' objections have not swayed Michael Greco, ABA
president. Greco, a Boston lawyer, asked the ABA Board of Governors to create
the task force following a Globe report on Bush's signing statements last
spring. He is urging the bar group to embrace the task force's recommendations.

Greco said the Constitution gives any president two options -- veto the bill and
give Congress a chance to override the veto, or sign the bill and "hold your
nose" and enforce all of its components. If presidential legal teams of either
party want to use signing statements and enforce parts of the bill, they need to
pass a constitutional amendment first, he said.

"The Constitution does not give a third alternative," Greco said. "It demands
that President Bush, or that President Clinton in the past, can only do two
things -- sign the thing without cherrypicking it, or veto it. Any argument that
strays from those two options is nothing more than trying to rationalize some
presidential action that is not sanctioned by the Constitution."

The ABA task force's findings have also come under attack by law professors with
ties to Republican administrations.

On Thursday, for example, the Boston Globe published an opinion article
defending signing statements by law professors Eric Posner of the University of
Chicago and Curtis Bradley of Duke University.

Posner worked in the Office of Legal Counsel under former President George H. W.
Bush from 1992 to 1993, and Bradley worked for the current Bush administration
as a State Department attorney in 2004.

Posner and Bradley agreed with the Clinton-era lawyers that presidents have a
right to issue signing statements, calling them "a useful device through which
the president can announce his views . . . rather than conceal them." They also
argued that Bush's signing statements are no different than Clinton's -- a claim
that the Clinton-era lawyers, who say Bush has abused the mechanism, dispute.

Posner and Bradley also criticized the academic members of the ABA task force,
saying that their legal reasoning was "false." Their attack echoed a swipe by Ed
Whelan, who worked for the Office of Legal Counsel from 2001 to 2004. In a blog
posting on the conservative National Review's website, Whelan said the legal
academics and former judges on the task force "ought to be ashamed of
themselves."

The task force included Yale Law School Dean Harold Koh, former Stanford Law
School dean Kathleen Sullivan, and Harvard Law School professor Charles
Ogletree, among others. It also included two retired federal judges -- former
appeals court chief judge Patricia Wald and former district court judge William
Sessions, who was FBI director under President Reagan and President George H.W.
Bush .

Ogletree said he was not surprised that "people closely connected to executive
branch careers would object to our report."

"The Clintonites want us to harshly criticize Bush, and that's certainly a
possibility, but that was not our goal," Ogletree said. "We said let's raise
this to a higher level of debate."

*


Washington Post --

August 3, 2006
TOP MILITARY LAWYERS OPPOSE PLAN FOR SPECIAL COURTS
By R. Jeffrey Smith

http://www.washingtonpost.com/wp-
dyn/content/article/2006/08/02/AR2006080201652.html

The military's top uniformed lawyers, appearing at a Senate hearing yesterday,
criticized key provisions of a proposed new U.S. plan for special military
courts, affirming that they did not see eye to eye with the senior Bush
administration political appointees who developed the plan and presented it to
them last week.

The lawyers' rare, open disagreement with civilian officials at the Pentagon,
the Justice Department and the White House came during discussions of proposed
new rules for the use of evidence derived from hearsay or coercion and the
possible exclusion of defendants from the trials in some circumstances.

The administration has said such juries -- to be established within a new system
of military "commissions" tailored for trying war crimes in an age of terrorism
-- are the only appropriate forum for bringing to justice members or associates
of terrorist groups and those accused of anti-U.S. acts in conjunction with such
groups.

The draft legislation debated yesterday would create military commissions to
replace the ones struck down in June by the Supreme Court, which ruled that an
earlier plan, imposed by the Defense Department without congressional
authorization, was unconstitutional. The new proposal seeks to expand the
authority of the courts by including defendants who are not members of al-Qaeda
or the Taliban and not directly involved in acts of international terrorism.

Some independent experts and human rights groups have criticized the plan
because defendants would be denied many protections guaranteed by the civilian
and traditional military criminal justice systems.

The proposed legislation has not been formally released because of the
administration's inability to persuade the military lawyers to accept it, even
after two meetings with Attorney General Alberto R. Gonzales.

The basis for the lawyers' concerns about administration policy, which they
first articulated in private memos in 2002 and 2003 for top Defense Department
political appointees, is that weak respect for the rights of U.S.-held prisoners
eventually could undermine U.S. demands for fair treatment of captured U.S.
service personnel.

"The United States should be an example to the world, sir," Maj. Gen. Scott C.
Black, judge advocate general of the Army, told Sen. Russell Feingold (D-WI) at
the Senate Judiciary Committee hearing. "Reciprocity is something that weighs
heavily in all of the discussions that we are undertaking as we develop the
process and rules for the commissions, and that's the exact reason, sir. The
treatment of soldiers who will be captured on future battlefields is of
paramount concern."

Sen. Lindsey O. Graham (R-SC), a reserve Air Force appellate judge who has
repeatedly expressed support for the military lawyers' viewpoint, elicited the
affirmations of general dissent when he asked the lawyers if "there are still
areas of disagreement" with provisions in the administration's working draft.

Perhaps the sharpest point of disagreement concerned a provision that would
allow a military judge to decide that classified evidence could be used at the
trials by providing it to a military defense lawyer but not to defendants. Maj.
Gen. Jack L. Rives, the Air Force's judge advocate general, said: "It does not
comport with my ideas of due process for . . . defense counsel to have
information he cannot share with his client." The other lawyers agreed with
Rives.

Black also suggested that lawmakers consider eliminating a provision that would
establish a new system of appeals for defendants convicted by the military
commissions. Under the provision, a special military court -- staffed by
military lawyers appointed by the secretary of defense -- would be empowered to
review only legal issues, not the validity of a defendant's sentence.

An appeal could then go only to the U.S. Court of Appeals for the District of
Columbia Circuit, a conservative bench that has sided twice with the government
in detainee cases in the past two years and has been overruled by the Supreme
Court.

Black said that keeping the existing appellate process for military courts-
martial, which allows for an earlier review of a defendant's sentence, is
"certainly worth considering," adding, "We have extraordinarily competent and
talented judges at our appellate levels throughout the services." Navy Rear Adm.
Bruce McDonald said the existing process could be kept, although Rives and
Marine Corps Brig. Gen. Kevin M. Sandkuhler indicated that they favor the
proposed method.

Black also took issue with a provision in the draft that would allow the use of
evidence collected during coercive interrogations. "Sir, I don't believe that a
statement that is obtained under coercive -- under torture, certainly, and under
coercive measures should be admissible," he told Judiciary Committee Chairman
Arlen Specter (R-PA).

McDonald, Rives and Sandkuhler each separately said they agreed. But they said
later that they could accept a procedure in which a presiding military judge
would decide whether coercion occurred.

The administration's plan, in contrast, is to let the judge decide whether to
admit evidence obtained by coercion by considering whether it is reliable and
necessary to prove a point. Gonzales embraced this more flexible approach at an
Armed Services Committee hearing on the same topic yesterday when Sen. John
McCain (R-AZ) asked whether statements obtained through "illegal, inhumane
treatment should be admissible."

Gonzales said: "The concern that I would have about such a prohibition is what
does it mean [and] how you defined it. I think if we could all reach agreement
about the definition of cruel, inhumane and degrading treatment, then perhaps I
could give you an answer. . . . Depending on your definition of something as
degrading, such as insults, I would say that information should still come in."

McCain called this "a radical departure" from past U.S. practice.

Gonzales also confirmed a report last week in The Washington Post that the
administration plans to include language in the legislation designed to protect
service personnel and civilians from domestic war-crimes prosecutions for any
violations of the international laws of war that are committed under
administration policies that have been withdrawn or ruled illegal.

"It seems to us it is appropriate for Congress to consider whether or not to
provide additional protections for those who've relied in good faith upon
decisions made by their superiors," Gonzales said.

*


Salon --

August 2, 2006

WILL BUSH AND GONZALES GET AWAY WITH IT?

The pilot and Vietnam POW -- a staunch Republican -- who pushed through the War
Crimes Act of 1996 is appalled that the Bush administration, facing possible
prosecution for war crimes, is devising a legal escape hatch.

By Michael Scherer

http://www.salon.com/news/feature/2006/08/02/cronin/

Aug. 02, 2006 | Retired Navy pilot Mike Cronin knows enough about torture to
know it doesn't work. After being shot down over North Vietnam in 1967, he spent
six years enduring interrogations in the Hanoi Hilton, the notorious holding
block for American prisoners of war. His neck and ankles were bound together
with rope, causing him to lose consciousness. The nerves and bones in his wrists
were crushed. His shoulder was ripped out of its socket. He was forced to talk,
but he never gave the North Vietnamese the information they wanted.

"I told lies," explained Cronin, 65, in a telephone interview from Cape Cod,
Mass., where he is spending the summer. "When you put people in that position,
the information you get is not reliable."

After the war ended, Cronin returned home to become a commercial pilot for
American Airlines -- and a deep believer in the laws of war. He came to see the
Geneva Conventions, which bar torture and "humiliating and degrading treatment,"
as a bedrock of the international military code. He was amazed to discover that
as late as the 1990s, there was no law enabling U.S. courts to try violators of
the Geneva Conventions. "I was shocked," he said. "I just thought that was
wrong."

So Cronin changed the legal landscape. Thanks to his persistent lobbying,
Congress passed the War Crimes Act of 1996 with overwhelming bipartisan support.
For the first time, U.S. courts were granted authority to convict any foreigner
who commits a war crime against an American, or any American who commits a war
crime at all. At the time, nobody could have predicted that a decade later a
U.S. administration, with the explicit consent of the president and the attorney
general, would be accused of systematic war crimes.

But that is precisely the accusation that President George Bush and Attorney
General Alberto Gonzales now face. The Supreme Court recently ruled that the
Bush administration wrongly denied Geneva Convention protections to prisoners
suspected of ties to al-Qaida and the Taliban, a policy that allowed for harsh
and possibly illegal interrogation methods to be used against them. As a result,
U.S. personnel, given their treatment of these prisoners, could become subject
to prosecution under the law that Cronin, a former prisoner of war, lobbied to
pass.

In fact, from the early days of the war on terror, the Bush administration was
concerned about the War Crimes Act. Publicly released memos show that as far
back as Jan. 25, 2002, Gonzales, then the White House counsel, worried that the
president's policies could trigger prosecution under the act. That led the White
House to declare, over the objection of the State Department, that al-Qaida was
not protected by the conventions. In the memo, Gonzales argued that the
president could create "a solid defense against any future prosecution" by
declaring that the Geneva Conventions did not apply.

But with the Supreme Court ruling, that defense no longer stands, leaving the
administration in a legally vulnerable position. At a recent congressional
hearing, Maj. Gen. Jack L. Rives, the Air Force judge advocate, testified that
"some techniques that have been authorized" violated the Geneva Conventions. To
preempt any prosecution, administration officials are now quietly circulating
legislation to change the statutory interpretation of the War Crimes Act of
1996. In short, the legislation would make it difficult to prosecute U.S.
personnel for the harsh interrogation methods authorized by President Bush and
the Justice Department.

Cronin, an active Republican, sees the proposed changes, which have not yet been
spelled out publicly, as an attempt by the civilian leadership to cover its
tracks. "These guys are talking about trying to protect soldiers in the field. I
think they are lying through their teeth," Cronin said. "They are talking about
trying to protect themselves."

Cronin is not alone. Some Democrats have promised to push back against the
proposed changes and have focused their initial ire on Gonzales. "The highest
law enforcement officer in the country is leading an effort to undercut the rule
of law," said Sen. Patrick Leahy, D-Vt., the ranking member of the Judiciary
Committee, on the Senate floor last week. "We cannot credibly ask others to meet
standards we are unwilling to meet ourselves." On Wednesday, the committee is
scheduled to discuss the issue of war crimes prosecution.

Because the War Crimes Act is a criminal statute that requires a federal
prosecutor, it is unlikely that any charges against the American civilian
leadership will be filed in the next two years. But charges could be filed by
the next administration or by appointment of a special prosecutor, say legal
experts.

"What the administration is afraid of is that someday, presumably in a Hillary
Clinton administration, Justice Department investigators will go back to 2002
and 2003, when the CIA was interrogating senior leaders of al-Qaida with
guidelines from the Justice Department and the White House," said Tom
Malinowski, advocacy director of Human Rights Watch. He said the effort to
change the interpretation of the War Crimes Act is focused on protecting those
outside the military chain of command who may have committed war crimes or
ordered war crimes to be committed. "If I were in the armed forces," Malinowski
said, "I would be worried that the administration is selling out the armed
forces for the CIA."

At first glance, Cronin appears to be an unlikely critic of the Bush
administration. He identifies firmly with the military. He served nearly two
years in Vietnam, flying A-4 Skyhawks off aircraft carriers over North Vietnam.
He was shot down in January 1967, just before the end of his tour of duty. A
registered Republican, Cronin voted for President Bush in each of the past two
elections. In 2004, he even joined other prisoners of war in supporting Swift
Boat Veterans for Truth, the partisan nonprofit group that attacked the Vietnam
service and antiwar activities of Democratic candidate John Kerry. One of his
closest friends, a fellow American Airlines pilot, was in the plane that crashed
into the Pentagon.

But today, Cronin says he is no longer certain he can support Bush. As he put
it, "I have had some doubts about the wisdom of this administration."

The story of the War Crimes Act began by accident. In the 1990s, worried that
his job as a commercial pilot might not be secure, Cronin enrolled at Georgetown
Law School, studying nights while continuing his full-time job as a pilot. At
Georgetown, he discovered that Congress had never enacted a law to enforce the
Geneva Conventions, even though the conventions were ratified shortly after
World War II. After graduating, he was asked by the Allied Pilots Association,
his union, to help represent his colleagues on Capitol Hill. He made it a point
to lobby members of Congress about the lack of war crimes enforcement as well.
"I made it my hobby to discuss the issue with senators and congressmen," Cronin
said. "I hit a brick wall. There was no interest until I met Congressman Jones."

In 1995, Rep. Walter Jones was a newly elected Republican from North Carolina
who represented a military district that includes Camp Lejeune, a major Marine
base. Jones took an immediate interest in Cronin and made the War Crimes Act his
first legislative initiative. "This whole issue came to me by accident," Jones
said. "It was my third month in Congress."

At the time, war crimes focused on acts by foreign adversaries, like the North
Vietnamese, who had tortured Cronin. But when the bill passed into law, it
applied equally to Americans. It passed the House by a voice vote, earned
unanimous support in the Senate and was promptly signed by President Bill
Clinton. Even right-wing conservatives supported it. Sen. Jesse Helms, R-N.C.,
said the bill would "close a major gap in our federal law." Sen. Jim Inhofe, R-
Okla., said the bill was "something that should have been done some 40 years
ago."

In practice, the law made little difference for enlisted soldiers and officers,
who were already subject to military law, which prohibits the abuse of
prisoners. But for the first time, the War Crimes Act provided a way to
prosecute U.S. civilians, including intelligence officers, contractors and
government officials who order war crimes.

In the current proposals, which have been reported by the Washington Post and
the New York Times, the administration is seeking to make Geneva Convention
enforcement in the United States subject to domestic interpretation, not
international standards. The slight technical change could have a huge practical
impact. Legal experts say this would give some flexibility to the Justice
Department to define certain interrogation techniques as legal in U.S. courts,
even if the rest of the world considers them violations of the conventions.

"They want retroactive immunity," said Mary Ellen O'Connell, a professor of
international law at Notre Dame, who has been critical of the Bush
administration's detention policies. "Have you known of any other time in our
history when we have tried to immunize public officials against crimes after
they have committed the crimes?"

The Bush administration, Cronin said, is simply unaware of the realities of war.
"The vast majority of them never served a day in the military, even though
almost all of them were of military age at the time of the Vietnam War," Cronin
said. "The opposition to the administration's policy of detainment has come, to
their great credit, entirely from the professional military."

Cronin, on the other hand, has been there. He is a victim of war crimes. And, as
it stands, he no longer believes that the president and his aides have the
nation's best interests at heart. "From day one," he said, "the total motivation
of these people seems to have been, How can we protect ourselves?"

*


Washington Post --

July 28, 2006

DETAINEE ABUSE CHARGES FEARED
Shield Sought From '96 War Crimes Act

By R. Jeffrey Smith

http://www.washingtonpost.com/wp-
dyn/content/article/2006/07/27/AR2006072701908.html

An obscure law approved by a Republican-controlled Congress a decade ago has
made the Bush administration nervous that officials and troops involved in
handling detainee matters might be accused of committing war crimes, and
prosecuted at some point in U.S. courts.

Senior officials have responded by drafting legislation that would grant U.S.
personnel involved in the terrorism fight new protections against prosecution
for past violations of the War Crimes Act of 1996. That law criminalizes
violations of the Geneva Conventions governing conduct in war and threatens the
death penalty if U.S.-held detainees die in custody from abusive treatment.

In light of a recent Supreme Court ruling that the international Conventions
apply to the treatment of detainees in the terrorism fight, Attorney General
Alberto R. Gonzales has spoken privately with Republican lawmakers about the
need for such "protections," according to someone who heard his remarks last
week.

Gonzales told the lawmakers that a shield is needed for actions taken by U.S.
personnel under a 2002 presidential order, which the Supreme Court declared
illegal, and under Justice Department legal opinions that have been withdrawn
under fire, the source said. A spokeswoman for Gonzales, Tasia Scolinos,
declined to comment on Gonzales's remarks.

The Justice Department's top legal adviser, Steven G. Bradbury, separately
testified two weeks ago that Congress must give new "definition and certainty"
to captors' risk of prosecution for coercive interrogations that fall short of
outright torture.

Language in the administration's draft, which Bradbury helped prepare in concert
with civilian officials at the Defense Department, seeks to protect U.S.
personnel by ruling out detainee lawsuits to enforce Geneva protections and by
incorporating language making U.S. enforcement of the War Crimes Act subject to
U.S. -- not foreign -- understandings of what the Conventions require.

The aim, Justice Department lawyers say, is also to take advantage of U.S. legal
precedents that limit sanctions to conduct that "shocks the conscience." This
phrase allows some consideration by courts of the context in which abusive
treatment occurs, such as an urgent need for information, the lawyers say --
even though the Geneva prohibitions are absolute.

The Supreme Court, in contrast, has repeatedly said that foreign interpretations
of international treaties such as the Geneva Conventions should at least be
considered by U.S. courts.

Some human rights groups and independent experts say they oppose undermining the
reach of the War Crimes Act, arguing that it deters government misconduct. They
say any step back from the Geneva Conventions could provoke mistreatment of
captured U.S. military personnel. They also contend that Bush administration
anxieties about prosecutions are overblown and should not be used to gain
congressional approval for rough interrogations.

"The military has lived with" the Geneva Conventions provisions "for 50 years
and applied them to every conflict, even against irregular forces. Why are we
suddenly afraid now about the vagueness of its terms?" asked Tom Malinowski,
director of the Washington office of Human Rights Watch.

Since the U.S. invasions of Afghanistan in 2001 and Iraq in 2003, hundreds of
service members deployed to Iraq have been accused by the Army of mistreating
detainees, and at least 35 detainees have died in military or CIA custody,
according to a tally kept by Human Rights First. The military has asserted these
were all aberrant acts by troops ignoring their orders.

Defense attorneys for many of those accused of involvement have alleged that
their clients were pursuing policies of rough treatment set by officials in
Washington. That claim is amplified in a 53-page Human Rights Watch report this
week that quoted interrogators at three bases in Iraq as saying that abuse was
part of regular, authorized procedures. But this argument has yet to gain
traction in a military court, where U.S. policy requires that active-duty
service members be tried for any maltreatment.

The War Crimes Act, in contrast, affords access to civilian courts for abuse
perpetrated by former service members and by civilians. The government has not
filed any charges under the law.

The law's legislative sponsor is one of the House's most conservative members,
Rep. Walter B. Jones Jr. (R-N.C.). He proposed it after a chance meeting with a
retired Navy pilot who had spent six years in the notorious "Hanoi Hilton," a
Vietnamese prison camp. The conversation left Jones angry about Washington's
inability to prosecute the pilot's abusers.

Jones's legislation for the first time imposed criminal penalties in the United
States for breaches of the Geneva Conventions, which protect detainees anywhere.
The Defense Department's deputy general counsel at the time declared at the sole
hearing on it in 1996 -- attended by just two lawmakers -- that "we fully
support the purposes of the bill," and urged its expansion to cover a wider
range of war crimes. The Republican-controlled House passed the bill by voice
vote, and the Senate approved it by unanimous consent.

The law initially criminalized grave breaches of the Geneva Conventions but was
amended without a hearing the following year to include violations of Common
Article 3, the minimum standard requiring that all detainees be treated
"humanely." The article bars murder, mutilation, cruel treatment, torture and
"outrages upon personal dignity, in particular humiliating and degrading
treatment." It applies to any abuse involving U.S. military personnel or
"nationals."

Jones and other advocates intended the law for use against future abusers of
captured U.S. troops in countries such as Bosnia, El Salvador and Somalia, but
the Pentagon supported making its provisions applicable to U.S. personnel
because doing so set a high standard for others to follow. Mary DeRosa, a legal
adviser at the National Security Council from 1997 to 2001, said the threat of
sanctions in U.S. courts in fact helped deter senior officials from approving
some questionable actions. She said the law is not an impediment in the
terrorism fight.

Since September 2001, however, Bush administration officials have considered the
law a potential threat to U.S. personnel involved in interrogations. While
serving as White House legal counsel in 2002, Gonzales helped prepare a Jan. 25
draft memo to Bush -- written in large part by David Addington, then Vice
President Cheney's legal counsel and now Cheney's chief of staff -- in which he
cited the threat of prosecution under the act as a reason to declare that
detainees captured in Afghanistan were not eligible for Geneva Conventions
protections.

"It is difficult," Gonzales said in the memo, "to predict the motives of
prosecutors and independent counsels who may in the future decide to bring
unwarranted charges." He also argued for the flexibility to pursue various
interrogation methods and said that only a presidential order exempting
detainees from Geneva protections "would provide a solid defense to any future
prosecution." That month, Bush approved an order exempting those captured in
Afghanistan from these protections.

But the Supreme Court's ruling in Hamdan v. Rumsfeld effectively made Bush's
order illegal when it affirmed that all detainees held by the United States are
protected by Common Article 3. The court's decision caught the administration
unprepared, at first, for questions about how its policy would change.

On July 7, Deputy Secretary of Defense Gordon England signed a memorandum
ordering all military departments to certify that their actions in the fight
with al-Qaeda comply with Article 3. Several officials said the memo, which was
reviewed by military lawyers, was provoked by the renewed threat of prosecution
under the War Crimes Act.

England's memo was not sent to other agencies for review. Two White House
officials heavily involved in past policymaking on detainee treatment matters,
counsel Harriet Miers and Addington, told friends later that they had not been
briefed before its release and were unhappy about its language, according to an
informed source. Bradbury and Gonzales have since drafted legislation to repair
what they consider the defects of the War Crimes Act and the ambiguities of
Common Article 3.

Several officials said the administration's main concerns are Article 3's
prohibitions against "outrages upon personal dignity" and humiliating or
degrading treatment. Defense Secretary Donald H. Rumsfeld told reporters on July
12 that he supported clearing up ambiguities so that military personnel are not
"charged with wrongdoing when in fact they were not engaged in wrongdoing."

Several advocates and experts nonetheless said the legal liability of
administration officials for past interrogations is probably small. "I think
these guys did unauthorized stuff, they violated the War Crimes Act, and they
should be prosecuted," said Michael Ratner, president of the Center for
Constitutional Rights, a New York-based group that has provided lawyers for
detainees at the U.S. military prison at Guantanamo Bay, Cuba.

Ratner said authorized interrogation techniques such as stress positions,
temperature extremes and sleep deprivation are "clearly outlawed" under Common
Article 3. But he added that prosecutions are improbable because the Justice
Department -- which has consistently asserted that such rough interrogations are
legal -- is unlikely to bring them. U.S. officials could argue in any event,
Ratner said, that they were following policies they believed to be legal, and "a
judge would most likely say that is a decent defense."

Some officials at the Pentagon share the view that illegal actions have been
taken. Alberto J. Mora, the Navy's general counsel from 2001 until the end of
last year, warned the Pentagon's general counsel twice that some approved
interrogation methods violated "domestic and international legal norms" and that
a federal court might eventually find responsibility "along the entire length of
the chain of command," according to a 2004 memo by Mora that recounted the
warnings. The memo was first obtained by the New Yorker magazine.

At a July 13 hearing of the Senate Armed Services Committee, the Air Force's top
military lawyer, Maj. Gen. Jack L. Rives, affirmed that "some of the techniques
that have been authorized and used in the past have violated Common Article 3"
of the Geneva Conventions. The top military lawyers for the Army, Navy and
Marine Corps, who were seated next to Rives, said they agreed.

[ Researchers Julie Tate and Madonna Lebling contributed to this report. ]

*


New York Times --

July 26, 2006
WHITE HOUSE BILL PROPOSES SYSTEM TO TRY DETAINEES
By David S. Cloud and Sheryl Gay Stolberg

http://www.nytimes.com/2006/07/26/washington/26detain.html

WASHINGTON, July 25 -- Legislation drafted by the Bush administration setting
out new rules on bringing terror detainees to trial would allow hearsay evidence
to be introduced unless it was deemed "unreliable" and would permit defendants
to be excluded from their own trials if necessary to protect national security,
according to a copy of the proposal.

The bill, which officials said was being circulated within the administration,
is not final, but it indicates the direction of the administration's approach
for dealing with a Supreme Court decision that struck down the tribunals
established to try terror suspects at Guantanamo Bay, Cuba.

The 32-page bill preserves the idea of using military commissions to prosecute
terror suspects and makes modest changes in their procedural rules, including
several expanded protections for defendants, many of them drawn from the
military's legal code. But the proposal also sets up a possible confrontation
with lawmakers who have called for modeling the trials on the military's rules
for courts-martial, which would allow defendants more rights.

The draft measure describes court-martial procedure as "not practicable in
trying enemy combatants" because doing so would "require the government to share
classified information" and would exclude "hearsay evidence determined to be
probative and reliable."

President Bush reviewed the bill last week in a meeting with his top advisers,
according to a senior White House official, who said the advisers told Mr. Bush
that they were comfortable with the bill and were ready to present it to
military lawyers. When the legislation is in its final form, the administration
will have to ask a member of Congress to introduce it.

The White House would not comment on the specifics of the bill.

"We are in the middle of a process of getting reaction from the various
stakeholders, and that is why we circulated a draft," said Dana Perino, a deputy
White House press secretary. "We are working to strike a balance of a fair
system of justice that deals with terrorists who don't recognize the rules of
war."

But one former White House official, granted anonymity to discuss internal
deliberations, said the administration was circulating the measure among
military lawyers at the Pentagon with the intention of winning over Republican
senators who have led the calls for using court-martial procedures, including
Senator Lindsey Graham of South Carolina, a former military lawyer.

A copy of the draft legislation was provided to The New York Times by an
official at an agency that is reviewing it. The copy was labeled "for discussion
purposes only, deliberative draft, close hold," and the official who shared it
did so on condition of anonymity. The official did not express an opinion about
its contents.

Mr. Graham described the legislation, which he reviewed briefly last week in a
meeting with administration officials, as "a good start," but added, "I have
some concerns." He would not be specific, saying he wanted to withhold judgment
until hearing the views of military lawyers.

Mr. Graham praised the administration for engaging in "a collaborative process"
and said the measure incorporated some of his suggestions, including the
requirement that a military judge be detailed to each commission.

A senior Congressional aide said Senator John McCain, Republican of Arizona, by
contrast, is believed to be more adamant that using the existing commissions
with modest changes will not suffice, largely because of the danger that
American troops could face similar treatment if captured abroad.

Though House Republicans are considered more supportive of the administration's
plan, it could have difficulty passing the Senate without additional changes,
said Eugene R. Fidell, the president of the National Institute of Military
Justice.

"I believe the sentiment on the Hill is for a much more nuanced approach that
tracks much more closely with the procedures used for general courts-martial,"
Mr. Fidell said. He called the administration plan "a missed opportunity."

Rather than requiring a speedy trial for enemy combatants, the draft proposal
says they "may be tried and punished at any time without limitations."
Defendants could be held until hostilities are completed, even if found not
guilty by a commission.

Nor does the bill adhere to the military's rules for the admissibility of
evidence and witnesses at trial statements because "the United States cannot
safely require members of the armed forces to gather evidence on the battlefield
as though they were police officers," the proposal says.

The draft bill specifies that no matter how it is gathered, evidence "shall be
admissible if the military judge" determines it has "probative value." Hearsay
statements, meaning something a witness has heard but does not know to be true,
would be allowed "at the discretion of the judge unless the circumstances render
it unreliable or lacking in probative value."

The bill would also bar "statements obtained by the use of torture" from being
introduced as evidence, but evidence obtained during interrogations where
coercion was used would be admissible unless a military judge found it
"unreliable."

The provision allowing defendants to be excluded from a trial to prevent them
from hearing classified evidence against them is likely to be among the more
controversial aspects of the administration's plan. The bill notes that "members
of Al Qaeda cannot be trusted with our nation's secrets." But the bill specifies
that the "exclusion of the accused shall be no broader than necessary" and
requires that a declassified summary of the information be given to defendants.

One of the most difficult issues the administration faces is whether a provision
of the Geneva Conventions, known as Common Article Three, applies to detainees;
the Supreme Court ruled that it did. The measure says explicitly that the Geneva
Conventions "are not a source of judicially enforceable individual rights,"
meaning that in the future, terror suspects like Salim Ahmed Hamdan, a Yemeni
held at Guantanamo whose case resulted in the Supreme Court ruling, cannot file
lawsuits saying their Geneva Convention rights were violated.

"This draft shows that the executive branch doesn't think the Supreme Court got
the questions on the Geneva Conventions right in Hamdan," said John C. Yoo, a
law professor at the University of California, Berkley, who as a Justice
Department lawyer helped draft the president's original order establishing the
military commissions.

Officials said the bill was drafted by Steven G. Bradbury, acting assistant
attorney general. On Tuesday, Attorney General Alberto R. Gonzales met with
Senator John W. Warner of Virginia, the Republican chairman of the Armed
Services Committee, about the administration's proposal. Mr. Gonzalez later went
to the Pentagon to brief senior civilian and military officials, including the
judge advocates general from each of the services, a Pentagon official said.

Getting the support of uniformed Pentagon lawyers could prove critical to the
fate of the measure. At a hearing before the Senate Armed Services Committee
earlier this month, each of the judge advocates general said that, like some
lawmakers, they preferred a system for trying detainees that relied on the
Uniform Code of Military Justice, which governs court-martial proceedings for
United States service personnel.

That was at odds with testimony from civilian lawyers from the Departments of
Defense and Justice, who had said that they believed the military code was
inappropriate for prosecuting terror suspects and recommended that Congress
retain the administration's military commission system. Pentagon officials said
they were still open to suggested changes from the military lawyers.

Eric Ruff, the Pentagon spokesman, said Defense Secretary Donald H. Rumsfeld "is
asking that draft legislation be reviewed by everyone from a legal as well as
policy perspective, and he would like them to provide feedback on what the
effects might be on the ability of our military to carry out its various
missions."

[ Kate Zernike contributed reporting for this article. ]

*


Esquire --

August 2006 Issue

ACTS OF CONSCIENCE

Here, at great personal risk, an elite Army interrogator comes forward to reveal
his experience at a secret prison camp in Iraq. And more like him will follow.
The story of Human Rights Watch and the search for the truth about the United
States military and torture.

By John H. Richardson

http://www.esquire.com/features/articles/2006/060706_mfe_August_06_Conscience_1.
html


THE RENTED CAR blasts down the Strom Thurmond Highway toward Georgia, taking
Marc Garlasco to his meeting with the Army interrogator. Balmy air pours in the
window.

It is spring. Garlasco has one hand on the wheel, light glinting off his
wraparound mirrored sunglasses. He is talking about his wife and kids as he
passes through countryside so brimming with green life that it's strange and
almost obscene to imagine his goal.

Garlasco works for Human Rights Watch, a group that started in 1978 to monitor
the Soviet Union and recently expanded its mission to include America's war on
terrorism. With a partner named John Sifton, in the past year he has helped
expose the secrets of CIA prisons and extraordinary renditions and discovered
Captain Ian Fishback, the decorated West Point graduate whose account to the
Senate Armed Services Committee last fall pushed the Congress to pass a historic
and politically charged amendment banning torture. Now Garlasco is chasing after
a fresh story of prisoner abuse committed by members of the United States
military. Until now, the Bush administration has insisted that all prisoner
abuse has been caused by low-ranking rogue elements. But the man Garlasco is
coming to meet has a story about abuses at a secret camp used by Task Force 121,
the ultimate Special Ops team, the elite titanium tip of Donald Rumsfeld's
spear. Their names are state secrets. Their work is closely monitored and highly
systematized. And they acted under the supervision of ranking officers and even
-- in one extraordinary instance that Garlasco expects to be exploring tonight
-- with the direct encouragement of lawyers from the Army's Judge Advocate
General's office.

At the hotel, he checks into his room and goes back down to the lobby to wait.
It's a vast, dismal place that reeks of some kind of fake mortuary perfume.

Half an hour later, the interrogator arrives. He's broad and muscular and his
hair is shaved to a small top patch in the military style. He's wearing civilian
clothes. He tells Garlasco to call him Jeff, which is not his real name.

The hotel restaurant is empty and overlooks the empty lobby, but still they take
the most hidden booth and make nervous jokes about the little private roof that
makes it a perfect cone of silence. Ordering dinner, Jeff says he grew up in a
conservative Christian family and became "secular," then got bored with college
and joined the military. That was just before 9/11. The Army gave him some tests
and decided he was smart enough to handle one of the hardest languages, Arabic.
That's how he became an interrogator.

He is here now, he says, because his conscience tells him it's the right thing
to do.

Then Garlasco pushes the button on a small digital recorder. "It is now
Wednesday, May seventeenth, at 6:30 P.M. Jeff, I just want to have your
permission that I can record you."

"Yes, you do."

"Okay, great," he says, warming Jeff up with a few questions about his military
experience in Iraq.

"Your MOS?"

"97 Echo."

"97 Echo. You're a trained interrogator. That means that you went to Huachuca,
you went to DLI out in Monterey, is that correct?"

Huachuca is the Army's interrogation school, DLI the language-immersion academy.
Garlasco knows these things because he spent six years as an intelligence
analyst at the Pentagon, where he interrogated prisoners, briefed the Secretary
of Defense, and charted the coordinates for the bombing campaign against Saddam
Hussein in the early days of the war. It makes him an ideal confessor for a
soldier with a troubled conscience.

Jeff was in Iraq early in 2004. That January, a sergeant named Joseph Darby at
Abu Ghraib prison gave Army investigators a disc of pictures of naked human
pyramids and a naked man on a dog leash, the seed of evidence that grew into the
prisoner-abuse scandal. After that, Jeff heard that things at Abu Ghraib were
changing fast. They were still doing things in January that were impossible by
'04 May, he says.

"Like what?"

"Like put a prisoner in a stress position, or cuff them to the middle of the
floor and scream at them and throw a chair. Hooding, cuffing, transporting a
prisoner by yourself -- all of that was forbidden later on."

But at the very same time the Army was cleaning up Abu Ghraib under scrutiny,
Jeff arrived at an elite secret interrogation facility near Baghdad where nudity
and hooding and stress positions were still routine, where ranking officers knew
exactly what was going on and promised to protect the interrogators at all
costs.

Now, at this deserted hotel, Jeff is taking an outsider into that program for
the first time.

The waitress brings salads. In the pause, Jeff reminds Garlasco that he's still
enlisted. The United States government can bring misery to a soldier who crosses
it, so he doesn't want to be too specific about exactly who he is or when he
started his assignment, giving himself the cover of reasonable doubt. Sometime
in February or March, then, he reported for duty at an unmarked compound. This
was Camp Nama, the home of Task Force 121, the Special Ops team that chased
Osama bin Laden and caught Saddam Hussein and would ultimately locate and kill
Abu Musab al-Zarqawi, the self-described leader of Al Qaeda in Iraq. It was
Rumsfeld's baby, the Platonic ideal of his fast and mobile army. From its size
to its mission, everything about it was and remains an official secret. Except
for the concertina wire, Camp Nama was a nondescript cluster of buildings.

The only thing Jeff knew about Camp Nama was that he'd be able to wear civilian
clothes and interrogate "high value" prisoners. In order to get to the second
step, he had to go through hours of psychological tests to ensure his fitness
for the job.

Nama, it is said, stood for Nasty Ass Military Area. Jeff says there was a
maverick, high-speed feeling to the place. Some of the interrogators had beards
and long hair and everyone used only first names, even the officers. "When you
ask somebody their name, they don't offer up the last name," Jeff says. "When
they gave you their name it probably wasn't their real name anyway."

To this day, Jeff has no idea of the true names of his superior officers. His
supervisor was a colonel who called himself Mike, although Jeff is sure that
wasn't his real name.

It was a point of pride that the Red Cross would never be allowed in the door,
Jeff says. This is important because it defied the Geneva Conventions, which
require that the Red Cross have access to military prisons. "Once, somebody
brought it up with the colonel. 'Will they ever be allowed in here?' And he said
absolutely not. He had this directly from General McChrystal and the Pentagon
that there's no way that the Red Cross could get in -- they won't have access
and they never will. This facility was completely closed off to anybody
investigating, even Army investigators."

Given Task Force 121's history, that was a remarkable promise. Formed in the
summer of 2003, it quickly became notorious. By August the CIA had already
ordered its officers to avoid Camp Nama. Then two Iraqi men died following
encounters with Navy Seals from Task Force 121 -- one at Abu Ghraib and one in
Mosul -- and an official investigation by a retired Army colonel named Stuart
Herrington, first reported in The Washington Post, found evidence of widespread
beatings. "Everyone knows about it," one Task Force officer told Herrington. Six
months later, two FBI agents raised concerns about suspicious burn marks and
other signs of harsh treatment. Then the head of the Defense Intelligence Agency
reported that his men had seen evidence of prisoners with burn marks and bruises
and once saw a Task Force member "punch [the] prisoner in the face to the point
the individual needed medical attention." Despite this record, The New York
Times has reported that as late as June 2005, the Army dropped yet another
investigation into torture at Camp Nama because of the confusion created by the
use of "battlefield pseudonyms." The confusion extends to the name of the task
force itself, which is also known as Task Force 6-26 and Task Force 145.

During his first six or seven weeks at the camp, Jeff conducted or participated
in about fifteen harsh interrogations, most involving the use of ice water to
induce hypothermia. By his reckoning, at least half of the prisoners were
innocent, just random Iraqis who got picked up for one reason or another.
Sometimes the evidence against them was so slight, Jeff would go into the
interrogation without even knowing their names.

Then he got a few days off and did a lot of thinking. "I had time to step back
and say, Wait, this is not right. This is not who I am. This is not the way I
was brought up. This is not the way I want to remember myself and my actions."

Finally a small group of interrogators went to the colonel and told him they
were feeling uneasy -- he was a nice guy, always approachable, and it was
completely informal.

The colonel snapped into action. Within two or three hours, a pair of JAG
lawyers showed up and gathered the entire staff into the main duty room at Camp
Nama. "It was very fast. It was like they were ready. I mean, they had this two-
hour slide show all prepared, and they came in and gave it to us and they
stopped interrogations for it."

"What kind of slide show?"

"It was a PowerPoint."

This is a remarkable event, in part because there was significant opposition to
harsh interrogation within senior elements of the JAG corps, who feared that the
Army was opening itself to war-crimes prosecutions. As Jeff tells the story,
there were between twenty and thirty people in the room; a third were
interrogators, the rest were leadership and support staff. Most had folding
chairs but a few stood against the walls.

The lawyers did not dim the fluorescent lights, and as the PowerPoint slides
flashed on the wall, starting with a review of the laws of war and the Geneva
Conventions, the soldiers interrupted with questions.

"Is this legal?" they asked. "Are we going to be investigated?"

The military lawyers explained the distinction between prisoners of war and
enemy combatants to the packed room, insisting that the methods they were using
at Camp Nama were appropriate. The JAG lawyers explained that none of these
interrogation techniques were inhumane because they left no lasting mental or
physical effects.

But that prompted more questions. "What if another authority comes along that
disagrees on the rules?"

The JAG lawyers insisted that wouldn't happen, that any punishment would come
from the top down and never get to them.

Someone asked about the innocent people, the ordinary Iraqis who weren't enemy
combatants at all.

"We're in a new era," one of the JAG lawyers said. "We're in a war on terror,
and these are things we have to do."

(Officials at the Pentagon, the Special Operations Command, and JAG headquarters
did not respond to repeated requests for comment on these events.)


BEFORE JEFF, there was another soldier.

A year ago last May was about the worst time in Marc Garlasco's entire life. His
wife was very ill, so clearly wasting away that one night he caught his toddlers
playing "dead mommy." Then a call came one Friday afternoon at around four
o'clock, just as he was planning to slip out of the office to get home early.
"I've got this guy on the line who says he's in the military," a coworker told
him. "I'm going to patch you in."

With this began the episode that would put Human Rights Watch at the center of a
controversy that has threatened America's standing in the world and sullied the
American national character. The stranger on the line said he served in Iraq and
had seen some things that might have been violations of the Geneva Conventions,
Abu Ghraibtype things. He had talked to his professors at West Point and an Army
attorney but he still had some questions.

The man's voice was so serious and solid, Garlasco felt a hunch. This could be
significant. "Okay," he said, playing it cool. "Send me your RFIs."

That's Armyspeak for "Request for Information." Soon they were clicking through
ROEs and FOBs and the coworker dropped off the line. Then Garlasco backed off
and gave the man his e-mail address. "Look, I don't have your number. I don't
know your name. If you want to keep this on a telephone basis, that's okay -- I
don't want to get you in trouble."

It was a long weekend. Monday came and went. But late that night, a message
appeared in his in-box:

    Mark,

    Here is a summary of my RFIs:

        Which of the following activities violate the Geneva Conventions:
        stripping prisoners naked and chaining them to the floor, intense
        periods of exercise, sleep deprivation, hitting or threatening to hit
        prisoners?

        How did the U. S. interpretation of the Geneva Conventions change after
        September 11?

        Can you send me any government reports related to prisoner abuse or Abu
        Ghraib? (Taguba report, IG report, the recently released investigation)?

        Documents showing that senior U. S. officials permitted harsh
        interrogations?

        Is this a case of the Army trying to tell the truth and poor media
        coverage, or of the Army intentionally misleading America?

        Are there other officers with similar concerns?

        International case law (other countries' standards) on the Geneva
        Conventions. For example, I remember that a Japanese general (or
        admiral) was found guilty for War Crimes because of the Bataan Death
        March even though he was unaware of it at the time.

        Documentation of warnings to U. S. officials not to change the policy.
        There are a lot of reasons not to do this and I suspect that at least
        JAG would have brought them up.

        Constitutional case law on officer responsibilities to speak up...I
        don't know of any cases either way.

        Congressional testimony about what is permitted before and after 9/11.

As it happened, all of the soldier's questions involved the very thing Garlasco
was researching. Known as the doctrine of command responsibility and formalized
by the Geneva Conventions of 1949, it is the idea that officers must shoulder
the blame when they know their troops are committing war crimes and fail to take
"all feasible measures" to stop them, the principle linking the Nazi trials at
Nuremberg to Lieutenant William Calley and Slobodan Milosevic. That history took
an unexpected turn five months after 9/11, on February 7, 2002, when President
Bush signed the memo titled "Humane Treatment of Taliban and Al Qaeda
Detainees." Because Al Qaeda was not a High Contracting Party to the Geneva
Conventions, he said, "none of the provisions of Geneva apply to our conflict
with Al Qaeda in Afghanistan or elsewhere throughout the world." He especially
rejected Article 3, the clause that forbids torture and other insults to human
dignity. On December 2, 2002, Secretary of Defense Donald Rumsfeld authorized
twelve new methods of interrogation, including stress positions, hooding,
nudity, and the use of threatening dogs -- and also four harsher methods that
were "legally available" but did not have blanket approval, including exposure
to cold, mock executions of prisoners (or their family members), and the sense
of drowning suffocation caused by the method known as waterboarding. A month
later Rumsfeld rescinded blanket approval but still permitted harsh techniques
as long as interrogators first asked permission.

For three years, not a single ranking military officer had raised a critical
word in public about any of this. But the e-mail in Garlasco's in-box was
signed:

"w/ Respect, CPT Ian Fishback."


IN PERSON, ON A SPRING DAY, in a pair of cargo shorts and a KEEP ON TREKKING
T-shirt, Ian Fishback looks like any twenty-six-year-old guy, maybe a high
school swim coach. He's stocky and short, does the cowboy squint as he takes
things in, talks about his plans for the weekend. It's no surprise that he grew
up in a small town in northern Michigan, the gentle type who protected kids from
bullies and campaigned against drinking at football games.

Then he puts on his uniform and presto, he's Captain Ian Fishback, West Point
graduate, creased and gleaming with two Bronze Stars, son of a Vietnam veteran
and married to an Iraq veteran, now training to go back to Iraq at the head of a
twelve-man Special Forces team.

This is a man who has excelled at everything. He was voted most valuable player
of the football team and president of his senior class in high school, made
squad leader and company commander at West Point. The only regular complaint he
seems to have inspired is that he is maybe just a bit too obsessed with
following every rule to the letter.

In subsequent e-mails he sent to Garlasco, Fishback was relentless and detailed:

    Afghanistan (Sep 02-Jan 03): witness deliberately planned, harsh
    interrogations sanctioned by the chain of command. Prisoners are referred to
    as PUCs (persons under control) or detainees for the express purpose that
    they are not afforded Geneva Convention rights. My chain of command states
    this explicitly. Trained OGA (other government agency) interrogators conduct
    interrogations including sleep deprivation, intense exercise, and stripping
    prisoners and exposing them to elements. These activities violate the Geneva
    Conventions as I learned them at West Point.

    Iraq (Sep 03-March 04): while operating throughout Sunni triangle witness
    OGA interrogators take prisoner into a building and instruct infantry not
    to allow anyone into the building. I heard banging noises from inside the
    building and assumed that the prisoner was either being hit or being
    threatened to be hit. This activity took place in the middle of the day in
    the center of a cavalry squadron base camp. It was commonplace to hold
    family members until someone gave himself up in Iraq.

When he was in Iraq, Fishback thought all of this was permitted under the Bush
administration's new "take the gloves off" policy. So when the Abu Ghraib
scandal broke and Rumsfeld appeared before Congress to blame the conduct on
rogue elements, Fishback got so steamed he wrote up a memorandum for the record
and took it to his commanding officer, Lieutenant Colonel Marshall A. Hagen. It
started off on the strongest possible note.

"The Secretary of Defense's testimony on Friday 7 May was inaccurate. He stated
that the United States follows the Geneva Convention in regards to both the
Taliban and Iraq. My personal experiences show this is not true."

Listing specific Geneva Conventions by clause and subsection, Fishback said that
he worked with some of the most disciplined units in the world -- the 82nd
Airborne, the U. S. Army Rangers, and Special Operations Forces -- and it was an
insult to call them rogue troops. Furthermore, all three of his battalion
commanders not only allowed troops to violate the conventions but "provided
reasoning" why it was morally acceptable to do so. Therefore it was his duty and
also his moral obligation to register an objection.

After a conversation that lasted nearly two hours and went nowhere, Hagen put
his signature at the bottom of the document. "I have read and understand the
above statement, dated 10 May 2004. I am aware of LT Fishback's concerns."

Fishback persisted up the ladder, going to his battalion commander to an Army
lawyer to his congressman to Senator Carl Levin, a ranking member of the Senate
Armed Services Committee. Some took notes, some shrugged him off, some asked him
to consider the gray areas. The Secretary of the Army told him that corrective
action had been taken.

That was the summer of 2004, when his wife was deployed to Iraq to work with the
519th Military Intelligence Battalion. This was the same outfit that had helped
set up the Army prison at Abu Ghraib one summer earlier. She heard that back
then, they'd started right off with stripping prisoners naked and harsh
interrogations, and anyone who expressed concern was scapegoated. Finally the
battalion commander objected to the harsh techniques and requested new "rules of
engagement," and it took four months to get the new ROE from the Pentagon, a
shocking delay in the rule-obsessed world of the Army. And the new ROE called
for the same harsh interrogation techniques as before.

It was another damning piece of evidence, especially because the famous night-
shift abuse episodes began soon afterward. If the rules of engagement had taken
a clear stand against torture, those terrible events might not have happened. So
Fishback started up again, taking his concerns to the Inspector General at Fort
Bragg -- who told him to work within the system. Don't do something stupid, like
go to the media. Why not wait for Vice-Admiral Albert T. Church to finish the
official investigation?

So that's what Fishback did. But when Church issued his report in March 2005,
it found "no link between approved interrogation techniques and detainee abuse"
and blamed all the trouble with torture on rogue soldiers.

That's when Fishback contacted Garlasco.

    Bottom Line: I am concerned that the Army is deliberately misleading the
    American people about detainee treatment within our custody. This behavior
    violates the professional military ethic of "I will not lie, cheat, or
    steal, nor tolerate those who do" and it violates the constitutional
    principle of a government accountable to the people.


MARC GARLASCO PUSHES the tape recorder across the table, a little closer to
Jeff.

At Camp Nama, Jeff says, the tone was set right at the beginning, when he was
still in his observing phase. One day they arrested a man who was believed to
have given money to al-Zarqawi or helped found his resistance group. They
dragged him into a courtyard between the buildings and stripped him naked, then
sprayed him with a hose of freezing water and rolled him in a mud puddle and
stood him up in front of an air conditioner. It was winter and bitter cold. Then
they pushed him back into the mud puddle and sprayed him with the hose and did
it all over again. "This happened all night. Everybody knew about it. People
walked in, the sergeant major and so forth, everybody knew what was going on.
And I was kind of walking back and forth seeing -- this is how they do things."

Jeff wasn't sure how to react. It all seemed very official.

There was a range of treatment for prisoners available to the interrogators. If
a suspect cooperated he might get the red room or the blue room or even the soft
room, which had rugs and black leather chairs. But if he was difficult or
important he went to the black room with the black door and black speakers in
four black corners blaring earsplitting music.

"What techniques were authorized for the black room?"

"There was a checklist template on a computer with entries for environmental
controls, hot and cold, strobe lights, music, working dogs, and so on. You would
just check what you want to use and get it signed off, and they were always
signed off."

"Do you know where those techniques came from? I mean the techniques you
describe, are they in the Army Interrogation Field Manual?"

"No, they're not."

"So where did you get those from?"

"Oh, they're just not hard to come up with. There's really no manual to take
somebody's clothes off. But you find it in Mosul, you find it in Baghdad, you
find it at Abu Ghraib, you find it in Tikrit, you find it everywhere. Disrobing
and these type of methods. But humiliation is on the interrogator's mind. You
know, I want to humiliate this person to get them to talk to me. What's more
humiliating than, I mean, just take off your clothes? That's just the first
thing that pops into people's minds, apparently. And then you've got some ice
water and pour the ice water on them and make them very uncomfortable that way."

The harshest frequent technique used at Nama was the use of cold water, Jeff
says. Cold can be a serious torment to a naked man on a winter night; in
Afghanistan, one prisoner died from hypothermia. Sometimes, to maximize the
humiliation of the Iraqi men, American women would be brought in to watch them
undress.

Sleep deprivation was also used to an extreme extent, especially in Jeff's early
days at Nama. They could keep a prisoner on his feet for twenty hours, and
although the rules required them to allow each prisoner four hours of sleep
every twenty-four hours, nowhere did it say those four hours had to be
consecutive -- so sometimes they'd wake the prisoners up every half hour.
Eventually they'd just collapse. "This was a very demanding method for the
interrogators as well, because it required a lot of staff to monitor the
prisoner, and we'd have to stay awake, too," Jeff says. "And it's just
impossible to interrogate someone when he's in that state, collapsed on the
ground. It doesn't make any sense. "Since these techniques violate both the
Geneva Conventions and the Army Field Manual, the all-important rule book that
carries the force of military law, the Bush administration has attempted to
finesse the issue by creating the distinction between "prisoners of war" and
"enemy combatants," promising to reserve the harsh techniques only for hardcore
Al Qaeda members and not for the Iraqis or even the Taliban.

This creates a conflict with existing laws, as well as a more practical problem.
Camp Nama is a perfect example of this, because Task Force 121 was in fact
looking for a hardcore Al Qaeda member, al-Zarqawi -- but to find him, it was
using the techniques reserved for the "worst of the worst" on ordinary Iraqi
civilians.

"What was the level of occurrence of these harsh techniques? Was it weekly?"

"Sometimes it was every day if it was a multi-interrogation plan on one
individual. Sometimes we didn't have anybody to talk to for maybe a day or two."

"Was the colonel ever actually there to observe this?"

"Oh, yeah. He worked there. He had his desk there. They were working in a big
room where the analysts, the report writers, the sergeant major, the colonel,
some technical guys -- they're all in that room."

To Garlasco, this is significant. This means that a full-bird colonel and all
his support staff knew exactly what was going on at Camp Nama. "Do you know
where the colonel was getting his orders from?" he asks.

Jeff answers quickly, perhaps a little defiantly. "I believe it was a two-star
general. I believe his name was General McChrystal. I saw him there a couple of
times."

Back when he was an intelligence analyst, Garlasco had briefed Stanley
McChrystal once. He remembers him as a tall Irishman with a gentle manner. He
was head of the Joint Special Operations Command, the logical person to oversee
Task Force 121, and vice-director for operations for the Joint Chiefs. That put
responsibility right in the heart of the Pentagon.

Within the unit, the interrogators got the feeling they were reporting to the
highest levels. The colonel would tell an interrogator that his report "is on
Rumsfeld's desk this morning" or that it was "read by SecDef."

"That's a big morale booster after a fourteen-hour day," Jeff says with a tinge
of irony. "Hey, we got to the White House."

Since leaving the church, Jeff had been going through a period of reexamining
his values. Joining the Army was part of that, and he was always prepared to
fight in a battle if it came to that. But this was different. One time, they had
a prisoner who was obviously lying and stalling. He was one of those red-flag
guys, the kind where a memo shot up the chain of command and everyone was
waiting for the interrogation results. Supposedly he knew where al-Zarqawi was.
Finally a soldier from the elite British SAS unit took him out to a kind of
bunker behind the main building. Two or three other people followed, and Jeff's
supervisor told him to tag along to keep an eye on things. "He gave the guy a
pretty good pounding," Jeff says. "Nothing really in the face. A lot of stomach
shots, and I would say two or three groin shots, very harsh. A knee to the
abdomen. Thrown against the wall and so forth."

Someone reported the beating to the sergeant major, but no one in a position of
responsibility seemed to care much. "They weren't upset about any type of abuse
or anything. They were just upset that he was interrogating, because he wasn't
signed on to do that type of job."

Jeff saw the effects of beatings "all the time" in the captives as they arrived,
usually after they were arrested by Delta Force members working for Task Force
121. "They'd fall on their knees and beg you not to kill them," he said,
"completely terrified because of the way they were treated the previous forty-
eight hours."

And it wasn't easy to clear suspects, either. One time Jeff told the senior
interrogator that the guy he was interrogating was a chump, just a nobody picked
up by accident, and the colonel dressed him down in an open meeting: "You don't
know that! You just couldn't break him!"

Then for Jeff the doubting began.

"Even if these people did do these things, I don't want to do these things to
them," he says. "I want to be humane about it. I want to keep my dignity."

Experimenting with more-traditional "soft" techniques like the appeal to a man's
pride or to the futility of resistance, he found them both more successful and
more reliable. At least you knew it was more likely to be genuine when a person
decided to cooperate. "From what I've seen of harsh physical tactics," Jeff
says, "[it's] harder to tell if they're just saying something to stop the
discomfort. But if a prisoner breaks by the more-traditional means, you
instantly know it.

"I'd done harsh interrogations, with little or no results at all. And I saw a
lot of other people do harsh interrogations, too, and just never saw any type of
results to speak of at all." But most of the interrogators in the camp were
totally gung ho and wanted to go harsh on everybody. It was that kind of unit.
"They thought that was their job and that's what they needed to do, and do it
every time."

He began to feel more and more repelled, he says. I don't want to hang out with
these people. I don't want to see them do these things.

By then it was spring and the Army was starting to hum with tales of Abu Ghraib,
although it had not yet broken in the media -- the first story would hit TV on
April 28. But Jeff and some of the other interrogators started talking about the
things they were doing at Nama. They weren't as sexually abusive as the things
that went on at Abu Ghraib, but they were making a daily mockery of the Army
Field Manual and the Geneva Conventions. "Nobody was stupid enough to take
pictures, but you know, it's the same stuff," says Jeff. "You kind of got the
sense that some people thought it was fun. And I think kind of an underlying
thing was it was fun for people, but they had this guise of like it was always,
you know, for the information."

Then the JAG lawyers were summoned by the colonel to put down feelings of unrest
among a few of the Camp Nama interrogators by offering a legal justification for
their conduct. The lawyers brought up September 11 a lot, Jeff says. That put
him off. "I never thought Iraq had anything to do with 9/11," he says. "But I
was very annoyed with them because they were saying things like we didn't have
to abide by the Geneva Conventions because these people weren't POWs. It just
went against everything we learned at Huachuca. And just faulty logic, you know?
Just really bad argument."

Over and over, Jeff says, the JAG lawyers told them that blame would never get
down to their level. "It would go through us first," they said. "You will never
have any culpability whatsoever.

"That's the last thing the interrogators heard from the colonel, too. "It will
never come down to you. You guys have nothing to worry about. You're not doing
anything wrong.

"Then he sent them back to work, case closed. The interrogators of Camp Nama
were still working a few weeks later when the Abu Ghraib story blew up and
Donald Rumsfeld went before Congress to insist that the United States was
following the Geneva Conventions in Iraq.

TWENTY YEARS AGO, Marc Garlasco was a pudgy science-fiction geek whose social
life was going to Star Trek conventions for autographs. He toughened himself up
in ROTC and went to work for the Defense Intelligence Agency, where he
interrogated more than fifty Arabs and spent a year searching for a pilot who
was lost in the first Gulf war. He was in his office at the Pentagon when the
plane hit on September 11, and in the run-up to the war he was the guy who came
up with the idea of putting the faces of Saddam Hussein and his top henchmen on
a deck of cards. By the start of the war, the DIA put him in charge of high-
value targeting, which is how he came to be watching on a monitor at the
Pentagon when they dropped the bombs on Chemical Ali. The monitor flashed white
and when the image came back, they saw two tiny flapping legs and took bets on
how many times they would flap -- after all, it was Chemical Ali, the guy who
had gassed thousands of Kurds.

But when the bombing campaign ended, Garlasco abruptly quit the Pentagon and
flew to Baghdad to visit the crater at Chemical Ali's house for Human Rights
Watch. The bombs had hit unintended targets. And although he's the low-key type,
always joking, it's not hard to read his emotions in his report.

In the early morning hours of Saturday, April 5, Abd al-Hussain Yunis al-Tayyar,
a fifty-year-old laborer, went to his garden to get water. Moments later an
American bomb slammed into the targeted house next door, destroying his house as
well. He picked himself up and immediately began to search the debris. He spent
the rest of the day working to pull the dead bodies of his family from the
rubble of his home, finally reaching his dead son at 4:00 P.M.
The dead included:
As'ad 'Abd al-Hussain al-Tayyar, 30, son.
Qarar As'ad al-Tayyar, 12, grandson.
Haidar As'ad al-Tayyar, 9, grandson.
Saif As'ad al-Tayyar, 6, grandson.
Intisar 'Abd al-Hussain al-Tayyar, 30, daughter.
Khawla Ali al-Tayyar, 9, granddaughter.
Hind Ali al-Tayyar, 5, granddaughter.
Garlasco wrote down the names and ages, trying to keep his emotions off his
face. Seeing the effects of his own handiwork might have changed him, might
suggest some kind of conversion, but that's not exactly the case. Garlasco still
maintains close ties to his old colleagues, even taking part in a conference on
counterinsurgency at Fort Leavenworth this past February. He's probably the only
human-rights activist who is also a member of the NRA, certainly the only one
with a gun collection that includes an M4 assault rifle, a Sig P229, and his
beloved Pardini competition pistol. He even ended his Chemical Ali report with a
modest suggestion that is probably a first in NGO history. Since the size of the
crater suggested "the smallest PGM available," a five-hundred-pound laser-guided
bomb, it might be a good idea for the military to develop "smaller munitions
with lower yields that will reduce collateral damage."

Somehow this odd collection of qualities made him the perfect man to meet
Captain Ian Fishback. Setting up their first face-to-face meeting late last May,
they chose a little town in Georgia called La Grange, a dot on the map with a
Baptist church in every direction. It felt safe enough at 450 miles from Fort
Bragg. They met at an Applebee's.

At first, things were awkward. Garlasco suggested a beer and Fishback said he'd
prefer a lemonade. When the food came, Fishback said grace. I'm sitting with a
Jesus freak, Garlasco thought. He began to wonder if this was some kind of
religious crusade. Soon, though, they clicked on the peculiar mutual grounds of
guns, military history, and Battlestar Galactica. But Fishback balked when
Garlasco asked to talk to the soldiers in his unit. He was their superior
officer and it was his duty to protect them, he said. He wasn't ready to do a
taped interview yet, either. And he didn't feel comfortable talking to any more
Democrats. It might come off as partisan and soldiers shouldn't get mixed up in
politics. He had to make it clear that he was fighting for a principle and not a
party, and the best way to do that, he thought, was through a Republican. "Do
you think you could set up a meeting with John McCain?" Fishback asked.

Garlasco flew home empty-handed. A month later, still trying to set up a meeting
with McCain, he kept sending Fishback friendly e-mails:

"Hope all is well. I just watched Occupation: Dreamland. Really brings home how
freaking random the violence is over there."

When Fishback got through to one of McCain's aides, he sent Garlasco an update."

He agreed with almost all of my points and agreed that the Army is misleading
Congress and America. I asked point-blank for reasons that I should not go to
the media and he could give me none other than concern for my own career."

Finally Fishback agreed to a formal recorded interview. Flying to another
anonymous southern city, Garlasco met him in a hotel room and hit the button on
his little digital recorder. "It's the twenty-first of July, 2005, at four
o'clock, and this is Marc Garlasco from Human Rights Watch, and I am with LG-
Alpha from the U. S. Army. LG-Alpha, I just want to have your permission to
record our conversation."

"You have my permission."

For the next four hours, he took Fishback through every detail of his story.
"Did you actually observe detainees stripped?"

"Down to their underwear, yes."

"Do you know who stripped them?"

"No."

"Did you observe them placed in the stress positions?"

"Yes."

"And when you speak about sleep deprivation, how did you observe sleep
deprivation?"

"They had a horn, a really loud horn. Any time the detainee would go to fall
asleep they would blare the horn in his ear so that he had to wake up and they
would do that until he stood up again and stayed awake."

"And you observed that?"

"I observed that once. I observed them carrying the horn to the detainees
multiple times."

"And 'exposure to the elements.' Can you explain that to me a little bit
better?"

"Leave them outside, in the cold, and it got pretty cold."

"How did you feel about the treatment of these people at the time?"

"My feelings were that it clearly violated what I had learned as the appropriate
way to treat detainees at West Point.... You don't force them to give you any
information other than name, rank, and serial number. That's the gist of the
Geneva Conventions."

If he had thought they were supposed to follow the Geneva Conventions, he said,
he would have immediately stopped what was going on. That is a failure of
command responsibility that he feels acutely, and he can't understand why so few
officers feel the same. "It is infuriating to me that officers are not lined up
to accept responsibility for what happened. It blows my mind that officers are
not. It should've started with the chain of command at Abu Ghraib, and anybody
else that witnessed anything that violated the Geneva Conventions or anything
that could be questionable should've been standing up saying, 'This is what
happened. This is why I allowed it to happen. This is my responsibility.' That's
basic officership. That's what you learn at West Point."

Last July, amid news of abusive interrogations at Guantanamo featuring a
disturbingly familiar story of a prisoner forced to wear a leash and women's
underwear, John McCain started floating an amendment to ban torture.

In an immediate and surprisingly aggressive counterattack, Vice-President Dick
Cheney began meeting with leading Republican senators to urge them to kill any
such measure. To bring the point home, the White House threatened to veto any
bill that would "restrict the president's authority to protect Americans
effectively from terrorist attack and bring terrorists to justice."

In August, Fishback finally agreed to put Garlasco in touch with some of his
men. Working together, he and Sifton were able to tape six interviews that
uncovered a host of ugly new details. "We would give them blows to the head,
chest, legs, and stomach," the soldiers said. "Pull them down, kick dirt on
them...withhold water for whole guard shifts...withheld food, giving them the
bare minimum like crackers...poured cold water on them all the time to where
they were soaking wet and we would cover them in dirt and sand...broken bones
didn't happen too often, maybe every other week...."

It was much worse than anything Fishback had seen.

Dismayed, he went back for another meeting with Lieutenant Colonel Hagen, then
one more. In an e-mail, he told Garlasco that the stuff on TV was breaking his
heart. He couldn't watch the administration's "highly crafted talking points"
without wanting to weep for his country. "I'm almost ready to go forward. Can
you get to McCain?

"Finally, Senator McCain gave him an appointment. But just before the appointed
day, a Senate staffer called the Pentagon to clear the interview. A few hours
later at Fort Bragg, Fishback's supervisor asked if he had a pass to leave the
base.

No, Fishback said, he hadn't applied for one yet.

Don't bother, the supervisor told him. You won't get one.

Also, the Army Criminal Investigation Division was going to begin an
investigation into his charges. He would be needed to answer questions. So would
the sergeants who talked to Garlasco and Sifton.

Starting with an implicit threat to the whistle-blowers, the CID promised to
investigate only the beatings and broken bones, ignoring the larger point about
the collapse of standards that gave rise to those extreme acts. Bristling under
the pressure, Fishback gave Garlasco permission to pass on his much-revised
Summary of Concerns. "I want Mr. McCain's office to control the information; use
it however they want."

A week later, a Senate staffer leaked Fishback's story to Time magazine and
Garlasco rushed out his report, which still referred to Fishback as "Captain C."
With that, the story jumped onto front pages and TV news all over the world.
Down at Fort Bragg, as CID investigators continued to grill Fishback, he allowed
himself a rare burst of public frustration in a phone call with The New York
Times. "They're asking the same questions over and over again," he said. "They
want the names of the sergeants, and they keep asking about my relationship with
Human Rights Watch.

"But the story gave wings to McCain's amendment. He had honed it to its purest
form, simply asking the Army to follow the rules in the Army Field Manual. On
October 5, he rose to the Senate floor and paid tribute to Fishback. For
seventeen months, "this one brave soldier" stood up and took a stand, he said,
demanding an answer to a simple and essential question. What did America really
stand for? What are the standards? It was like a scene out of a Frank Capra
movie. "I thank God every day that we have men and women the caliber of Captain
Fishback serving in our military. I believe the Congress has a responsibility to
answer this call."

That afternoon the Senate passed his amendment with an overwhelming vote of
ninety to nine -- an unprecedented rebuke of the President of the United States
of America by members of his own party.

It would be nice to end the story there, with the balance restored to our happy
land of dreams. But the counterattack came swift and fierce. The first target
was Fishback. The Army allowed one spokesman to dismiss his concerns as
"verbiage" and another to say they were just philosophical, not a formal
complaint. "It's just a shame that he didn't bring it to somebody in the chain
of command in some kind of written form," said Major General Bill Caldwell.

Back at the office, Garlasco went through his hate mail:

    "Your organization sucks donkey balls. Your entire organization is anti-
    American. Your bosses are assholes and your friends are scumbags."

And another:

    "Fuck you dickless pukes."

And another:

    "You bunch of bed-wetting assholes want to pamper monsters who kill women
    and children regularly and gleefully. Why don't you get the fuck out of this
    country and join your fellow shitheads in Paris?"

Then we tumble down the rabbit hole. In January, President Bush adds a "signing
statement" to the McCain amendment that says that he will construe the law "in a
manner consistent with the constitutional authority of the President," meaning
that the White House will do exactly as it pleases and Congress be damned. A
fight explodes over a secret ten-page section on interrogation being added to
the new Army Field Manual, which subverts the McCain amendment by other means.
In the trial of an Abu Ghraib dog handler, the general who originally introduced
the snarling dogs and stress positions at the prison refuses to testify on the
grounds that he might incriminate himself. The colonel who supervised the Abu
Ghraib interrogators is given immunity to testify against his troops, which is
like giving a drug lord immunity to testify against a small-time user. The
Justice Department begins investigating reporters and their sources.

The pressure reaches down to John Sifton and Marc Garlasco. While Garlasco had
been consumed with taking the testimony of soldiers, Sifton, a scholarly
thirty-two-year-old lawyer, had committed himself to searching for the truth
about the CIA's secret prisons.

For his troubles, Sifton finds himself on a collision course with the
government.

In February he receives a solid tip from a reputable source that the CIA has put
a new secret prison in Mauritania. So he hops on a plane and two days later,
he's walking up a flight of marble stairs at the presidential palace to meet a
senior government official and ask a bunch of pointless questions about
Mauritania's security arrangements before coming to the point. What about the
secret prison?

The government official laughs. That sounds like nonsense to me, he says.

Back in New York, at the modest Empire State Building offices of Human Rights
Watch, looking glum and tired, Sifton briefs Garlasco. "I went at it from every
different angle. I set up interviews with all these officials and politicos and
army people. They all said the old government would have done it in a heartbeat
-- not these new guys."

"So our source was wrong?"

"I think he got bad information."

A year and a half ago, through a reporter at Newsweek, Sifton got a look at a
batch of flight logs that linked CIA planes to the secret prisons that hold
several dozen "high value" prisoners, including Khalid Sheikh Mohammed, the
architect of 9/11. The logs seemed to point to one location in Poland and
another possibly in Romania. On a trip to Afghanistan last September, Sifton was
able to connect the transfer of the ghost prisoners to a specific flight that
had landed at a small airfield in Poland, which suggested that the world's most
notorious terrorists were being held in an old Soviet-era intelligence facility
nearby. A couple of reporters were coming to the same conclusion, but nobody had
published anything. Twice the story was about to hit the press, first in the
Washington Post piece that won Dana Priest a controversial Pulitzer prize. After
the editor of the Post was summoned to a meeting with President Bush himself,
Priest withheld the words Poland and Romania from her story when it was
published in early November, adding this disclaimer: "The Washington Post is not
publishing the names of the Eastern European countries involved in the covert
program, at the request of senior U. S. officials."

Stunned by this, Sifton told every journalist who called where he thought the
prisons might be. From then on, every newspaper or news broadcast that ran a
story on the secret prisons in Poland and Romania attributed the information
not to its own reporting but to Human Rights Watch.

Finally, on December 5, an ABC reporter named Brian Ross told Sifton he had made
the breakthrough, confirming the prison sites through his own CIA sources. Would
Sifton give a supporting quote on camera for the evening show?

He certainly would.

But when the show aired that night, it started with an announcement: "ABC News
has been able to identify two countries in Eastern Europe where there were in
fact CIA facilities to hold terror suspects in secret, but the CIA has asked ABC
not to name the two countries, citing security concerns.

"Once again, the information was attributed to John Sifton. But this time, his
pale, earnest face was caught on camera. "The military and the CIA are not
infallible," he told ABC.

That's when the Justice Department began leak investigations, and Sifton didn't
even have the thin protection of being a journalist.

In the weeks that followed, he and Garlasco stopped talking freely on the phone.
There were nervous jokes about wiretaps. They grew careful of e-mails. Their
sources dried up. On a crisp day in March, Garlasco is running cold calls from a
thick duty roster of all the soldiers and contractors who have served at Abu
Ghraib, complete with their home addresses and phone numbers -- just a little
telemarketing in hell. This number has been disconnected.... The number you are
calling has call intercept.... The number you are calling has call intercept....
The number you are calling has call intercept....

Sometimes there are sudden breaks, tantalizing with possibility. Like the day
Garlasco's sitting in his office when the phone rings and it's Sifton with a tip
about a secret prison on a Navy vessel. Garlasco finds it in a military
database.

"It's part of the Military Sealift Command Fleet's Maritime Prepositioning
Force, operating out of Diego Garcia in the Indian Ocean, where it prepositions
Naval Mobile Construction Battalion equipment, fleet hospital equipment,
expeditionary-airfield material, and headquarters-unit-support material. It also
alternately holds evil Arab terrorist motherfuckers."

The source seems credible and the story has a certain logic, but the lead proves
impossible to confirm. Late in March, Garlasco flies to Little Rock to meet a
soldier with a story about abuse at a detention facility in a small base in a
town called Al Qa'im.

"We're here with Ben Allbright, and the date is the twenty-first. Ben, I just
wanted to make sure that we have your permission to record you."

"You do."

"So you were there when Abu Ghraib broke?"

"We were at Habbaniyah at the time."

Allbright is twenty-five years old and already has eight years in the military,
having joined as a junior in high school. He's bright and patriotic and says
that he would blindfold prisoners and bind their hands, then put them in metal
Conex boxes that were like big ovens in the heat and that he'd hit the box with
metal rods or rocks to keep the prisoners awake.

Allbright saw some guys get beaten. "I mean beat -- bloody nose, bloody face.
One guy, it started off with a couple gut shots, a punch to the neck. The chair
had a little bar down here, you know? Shoved him down, put the chair on top of
him. "There was definitely a push to get more intel," he says, a sense of "do
what you have to do."

On April 9, Garlasco gets an update from Captain Fishback on the Army's
investigation into his charges.

    Marc,

    Like I said on the phone, I won't be surprised at all if the investigation
    wraps up while I'm out in the field. I expect that the Army will try to
    portray HRW in a negative light. I am also still concerned about the
    investigation "scapegoating" younger soldiers with no officer
    accountability.

By now the plates are long gone, and Jeff has friends waiting. The mood turns
for a moment. He doesn't know if it is true, Jeff says, but someone reliable
told him they stopped the harsh interrogations after he left Iraq. Garlasco says
he wants to give credit for the good things, and he would love to write that if
he can confirm it. At the end of confessions like this there is always a feeling
of emotional overflow, a kind of patriotic stir in the blood as these young men
struggle with their vision of American decency. Jeff looks like a college boy
with an especially aggressive sports buzz. Garlasco has the long patient mug of
the coach who just decided to recruit him. "The things I saw were wrong," Jeff
says. "I made a decision there in Iraq to start doing what I think is right.
This is about clarity. Clarity is a good thing." They stand up and shake hands
and there is a sense of mutual gratitude, a sense that something good has been
accomplished. For Garlasco, the feeling lasts the whole time he walks down the
hall and opens the door to his room and sits down at his computer, and also
during the time it takes him to log on to Yahoo! News. Back in December, the
Army said the new Army Field Manual would soon be finished and coming to a
footlocker near you. It would answer Fishback's questions and McCain's amendment
with some clear rules and old-fashioned standards. Then the delays began. Now it
is being held up again, and this time Secretary of Defense Donald Rumsfeld
explains:

    "There is a debate over the difference between a prisoner of war under the
    Geneva Convention and an unlawful combatant in a situation that is different
    from the situation envisioned by the Geneva Convention, and those issues are
    being wrestled with at the present time."

And so it is that Garlasco drives back up Strom Thurmond's insanely green
highway and misses his connecting flight and gets stranded in the City of
Brotherly Love, finally arriving home in a small plane that slips through a
battery of black clouds. At home, his wife is healthy again. His five-year-old
is thrilled with her birthday doll, which can drink from a bottle. On his
answering machine, he finds a message from a friend at the CIA who wants to
talk.

*


Boston Globe --

July 19, 2006
BUSH BLOCKED PROBE, AG TESTIFIES
Senate examines wiretap program

By Charlie Savage

http://www.boston.com/news/nation/washington/articles/2006/07/19/
bush_blocked_probe_ag_testifies/

WASHINGTON -- President Bush personally blocked an ethics investigation by
Justice Department officials into his administration's warrantless wiretapping
program, Attorney General Alberto R. Gonzales testified yesterday.

The department's Office of Professional Responsibility wanted to investigate
whether administration attorneys had provided bad legal advice when they said
Bush had the wartime authority to wiretap Americans' international phone calls
without a warrant, defying a 1978 law requiring warrants.

"It is very difficult to understand why OPR was not given clearance so they
could conduct their investigation . . . Many other lawyers in the Department of
Justice had clearance." Specter said.

Gonzales said Bush decided not to grant the security clearances because the
program was "highly classified" and there was a need to limit the number of
people who knew its details.

"In terms of who has access to the program, the president of the United States
makes the decision," Gonzales said.

The Justice Department also released a series of internal memos about the OPR
clearance dispute yesterday in connection to the hearing. In several, the head
of the ethics watchdog office, H. Marshall Jarrett, contended that his
investigators were being prevented from doing their job.

"Since its creation some 31 years ago, OPR has conducted many highly sensitive
investigations involving executive branch programs and has obtained access to
information classified at the highest levels," Jarrett wrote in an April 21,
2006, memo. "In all those years, OPR has never been prevented from initiating or
pursuing an investigation."

The attorney general faced heated questioning from senators on issues beyond the
president's spying program, including the administration's efforts to try
detainees in the war on terrorism before military tribunals, which the Supreme
Court struck down last month.

Gonzales reiterated that the administration wants to work with Congress to pass
a law authorizing a new version of such tribunals.

In addition, Gonzales defended the president's practice of issuing "signing
statements" to reserve the right to bypass laws he considers unconstitutional.
Bush has issued signing statements to challenge more than 750 laws, a figure
cited in a series of Globe stories.

Gonzales testified that the Globe had retracted the figure. The newspaper has
not retracted any stories or figures on Bush's signing statements. The paper
corrected an editing error in one follow-up story that referred to Bush
challenging 750 "bills" instead of laws; a single bill often includes many
separate laws.

As of last week, Bush's signing statements covered 807 laws, according to
Christopher Kelley, a government professor at Miami University of Ohio who has
studied presidents' use of signing statements through history.

Gonzales made his comments about signing statements during an exchange with
Senator Patrick J. Leahy of Vermont, the ranking Democrat on the committee.
Leahy noted that Bush's numbers amounted to "more than all other presidents put
together."

Gonzales responded that he believed Bush's numbers were "closer to 125 to 110,"
and he asserted that Bill Clinton "signed 382 signing statements in his eight
years in office."

Kelley questioned Gonzales's figure for Clinton, saying the former president had
challenged 140 laws over eight years.

The number of challenges Gonzales said Bush had issued, 110 to 125, is close to
the number of bills to which Bush has attached signing statements, Kelley added.
However, focusing on the number of bills is misleading, he said, because
Congress often lumps many statutes together and passes them as a single bill.

Earlier in yesterday's hearing, Specter pressed Gonzales to justify Bush's
practice of declaring sections of bills unconstitutional in signing statements,
rather than vetoing them.

Gonzales told Specter that Bush was being respectful of Congress by preserving
the rest of the bill. But Specter accused Bush of cherry-picking which parts of
bills he wanted to obey.

"I think you're wrong on your evaluation of what the Congress would conclude was
respect for the Congress," Specter said. "I think the Congress would prefer a
veto and battling it out within the constitutional confines of a veto as opposed
to the cherry-pick."

*


New York Times --


July 15, 2006

SCHOLARS AGREE THAT CONGRESS COULD REJECT CONVENTIONS, BUT NOT THAT IT SHOULD

By Adam Liptak

http://www.nytimes.com/2006/07/15/washington/15geneva.html

The Supreme Court’s decision last month striking down the administration’s plans
to try detainees held at Guantanamo Bay, Cuba, was widely hailed as a sweeping
triumph for judicial supremacy, individual liberty and international law. In its
most striking holding, the court said that a provision of the Geneva Conventions
concerning the humane treatment of prisoners applied to all aspects of the
conflict with Al Qaeda.

But the decision included an escape clause. "Nothing prevents the president from
returning to Congress to seek the authority he believes necessary," Justice
Stephen G. Breyer wrote in a concurrence joined by three other justices.

And indeed, administration lawyers are now asking Congress not only to resurrect
the trial procedures struck down by the court but also to address the
prohibitions in Common Article 3 of the conventions, which bar, among other
things, "outrages upon personal dignity, in particular, humiliating and
degrading treatment."

Legal scholars, including many who say that overriding the Geneva Conventions
would be a terrible idea, agree that Congress has the power to do so.

"Congress could come back and write that blank check," said Peter J. Spiro, a
law professor at Temple University.

Martin S. Lederman, a former Justice Department official now at the Georgetown
University law school, agreed. "As a matter of domestic law, Congress can pass a
statute authorizing what treaties forbid."

The general rule is that a treaty is a law like any other, meaning a later law
can override it. "The last-enacted piece of legislation is effective," said
Scott L. Silliman, a former military lawyer and the executive director of the
Center on Law, Ethics and National Security at Duke University. "Can Congress
legally restrict the application of the Geneva Conventions? Yes, it can."

Such a move, however, would be groundbreaking, given the status of the Geneva
Conventions in international law and in the popular imagination.

"This is the most exalted humanitarian law treaty enacted in the 20th century,"
said Derek P. Jinks, a law professor at the University of Texas and the author
of "The Rules of War: The Geneva Conventions in the Age of Terror."

To be sure, many nations have violated the conventions in practice. But
apparently no national legislature has ever taken the step of specifically
overriding them.

"The fact that no other country has done it is a sign that this would be a
momentous and potentially catastrophic step," said Harold Hongju Koh, who served
in the State Department in the Clinton administration and is dean of Yale Law
School. "Do we want to encourage the parliaments of every country in the world
that wants to abuse, humiliate and torture our soldiers to reinterpret the
Geneva Conventions?"

But that is a point about prudence, not power.

"The issue is not whether they could do it," Dean Koh said. "The question is how
much damage we would do to the fabric of the law. It would put us on the wrong
side of history."

There is one significant but largely symbolic caveat: any domestic legislation
overriding the conventions and the conduct it authorized could still violate
international law. But international law is an amorphous concept with few
enforcement mechanisms.

Nonetheless, many experts say, the political and practical consequences of
rejecting the conventions could provoke a powerful anti-American backlash. "We
would be saying to the international community, whose cooperation we desperately
need, particularly in intelligence gathering, that we claim to be a nation of
laws but are not," Professor Silliman said.

Whatever the wisdom of overriding the conventions, the legislative work to
disentangle it from the nation’s laws would be substantial. For instance, one
federal law makes it a war crime to violate Common Article 3. If Congress
overrode aspects of the article, it would presumably also need to amend the war
crimes law.

Among the questions left open by the Supreme Court’s decision, Hamdan v.
Rumsfeld, is whether people detained at Guantanamo and elsewhere can sue over
violations of Common Article 3 and whether officials who violate it can be
subject to prosecution.

Looking forward, scholars differed on the question of whether Congress would be
free to offer its own interpretation of Common Article 3, for example
determining that the article allows the conditions that have existed at
Guantanamo, or whether it must pass legislation rejecting it outright.

It is certainly true that the language of the article is mostly general and
open-textured. It prohibits, in addition to assaults on personal dignity, trials
without the legal rights "recognized as indispensable by civilized peoples."

But there are bodies of authority, including domestic military law,
international treaties that use similar language and decisions of international
tribunals, that have helped establish a common understanding of the precise
meaning of the article. While a good-faith debate, in Congress and elsewhere,
about the meaning of some of the phrases should be welcomed, Professor Jinks
said, the language can be stretched only so far.

"It’s going to be very difficult for the administration to demonstrate," he said
by way of example, "that any of the so-called enhanced interrogation techniques
are consistent with Common Article 3." Among the techniques used at Guantanamo
were extreme temperatures, sleep deprivation, blaring music and sexual
humiliation.

The administration contends that with the exceptions of the procedures it
planned to use to try detainees suspected of terrorism, it has been in
compliance with Common Article 3 even in the years it said it was not bound by
it.

Professor Jinks said there was an argument to be made for even an implausible
Congressional interpretation of Common Article 3 if the alternative was outright
repudiation, if only because the rest of the world might view that as slightly
less provocative.

"Out-and-out defiance of the treaty is a deeply damaging act," Professor Jinks
said. "The question is how much trouble we want to make for ourselves: a lot of
trouble, or more trouble than we could possibly imagine."

*


New York Times --

July 16, 2006

THE REAL AGENDA
Editorial

http://www.nytimes.com/2006/07/16/opinion/16sun1.html

It is only now, nearly five years after Sept. 11, that the full picture of the
Bush administration’s response to the terror attacks is becoming clear. Much of
it, we can see now, had far less to do with fighting Osama bin Laden than with
expanding presidential power.

Over and over again, the same pattern emerges: Given a choice between following
the rules or carving out some unprecedented executive power, the White House
always shrugged off the legal constraints. Even when the only challenge was to
get required approval from an ever-cooperative Congress, the president and his
staff preferred to go it alone. While no one questions the determination of the
White House to fight terrorism, the methods this administration has used to do
it have been shaped by another, perverse determination: never to consult, never
to ask and always to fight against any constraint on the executive branch.

One result has been a frayed democratic fabric in a country founded on a
constitutional system of checks and balances. Another has been a less effective
war on terror.

THE GUANTANAMO BAY PRISON

This whole sorry story has been on vivid display since the Supreme Court ruled
that the Geneva Conventions and United States law both applied to the Guantanamo
Bay detention camp. For one brief, shining moment, it appeared that the
administration realized it had met a check that it could not simply ignore. The
White House sent out signals that the president was ready to work with Congress
in creating a proper procedure for trying the hundreds of men who have spent
years now locked up as suspected terrorists without any hope of due process.

But by week’s end it was clear that the president’s idea of cooperation was
purely cosmetic. At hearings last week, the administration made it clear that it
merely wanted Congress to legalize President Bush’s illegal actions -- to amend
the law to negate the court’s ruling instead of creating a system of justice
within the law. As for the Geneva Conventions, administration witnesses and some
of their more ideologically blinkered supporters in Congress want to scrap the
international consensus that no prisoner may be robbed of basic human dignity.

The hearings were a bizarre spectacle in which the top military lawyers -- who
had been elbowed aside when the procedures at Guantanamo were established --
endorsed the idea that the prisoners were covered by the Geneva Convention
protections. Meanwhile, administration officials and obedient Republican
lawmakers offered a lot of silly talk about not coddling the masterminds of
terror.

The divide made it clear how little this all has to do with fighting terrorism.
Undoing the Geneva Conventions would further endanger the life of every member
of the American military who might ever be taken captive in the future. And if
the prisoners scooped up in Afghanistan and sent to Guantanamo had been properly
processed first -- as military lawyers wanted to do -- many would never have
been kept in custody, a continuing reproach to the country that is holding them.
Others would actually have been able to be tried under a fair system that would
give the world a less perverse vision of American justice. The recent disbanding
of the C.I.A. unit charged with finding Osama bin Laden is a reminder that the
American people may never see anyone brought to trial for the terrible crimes of
9/11.

The hearings were supposed to produce a hopeful vision of a newly humbled and
cooperative administration working with Congress to undo the mess it had created
in stashing away hundreds of people, many with limited connections to terrorism
at the most, without any plan for what to do with them over the long run.
Instead, we saw an administration whose political core was still intent on
hunkering down. The most embarrassing moment came when Bush loyalists argued
that the United States could not follow the Geneva Conventions because Common
Article Three, which has governed the treatment of wartime prisoners for more
than half a century, was too vague. Which part of "civilized peoples," "judicial
guarantees" or "humiliating and degrading treatment" do they find confusing?

EAVESDROPPING ON AMERICANS

The administration’s intent to use the war on terror to buttress presidential
power was never clearer than in the case of its wiretapping program. The
president had legal means of listening in on the phone calls of suspected
terrorists and checking their e-mail messages. A special court was established
through a 1978 law to give the executive branch warrants for just this purpose,
efficiently and in secrecy. And Republicans in Congress were all but begging for
a chance to change the process in any way the president requested. Instead, of
course, the administration did what it wanted without asking anyone. When the
program became public, the administration ignored calls for it to comply with
the rules. As usual, the president’s most loyal supporters simply urged that
Congress pass a law allowing him to go on doing whatever he wanted to do.

Senator Arlen Specter, chairman of the Senate Judiciary Committee, announced on
Thursday that he had obtained a concession from Mr. Bush on how to handle this
problem. Once again, the early perception that the president was going to bend
to the rules turned out to be premature.

The bill the president has agreed to accept would allow him to go on ignoring
the eavesdropping law. It does not require the president to obtain warrants for
the one domestic spying program we know about -- or for any other program --
from the special intelligence surveillance court. It makes that an option and
sets the precedent of giving blanket approval to programs, rather than insisting
on the individual warrants required by the Constitution. Once again, the
president has refused to acknowledge that there are rules he is required to
follow.

And while the bill would establish new rules that Mr. Bush could voluntarily
follow, it strips the federal courts of the right to hear legal challenges to
the president’s wiretapping authority. The Supreme Court made it clear in the
Guantanamo Bay case that this sort of meddling is unconstitutional.

If Congress accepts this deal, Mr. Specter said, the president will promise to
ask the surveillance court to assess the constitutionality of the domestic
spying program he has acknowledged. Even if Mr. Bush had a record of keeping
such bargains, that is not the right court to make the determination. In
addition, Mr. Bush could appeal if the court ruled against him, but the measure
provides no avenue of appeal if the surveillance court decides the spying
program is constitutional.

THE COST OF EXECUTIVE ARROGANCE

The president’s constant efforts to assert his power to act without consent or
consultation has warped the war on terror. The unity and sense of national
purpose that followed 9/11 is gone, replaced by suspicion and divisiveness that
never needed to emerge. The president had no need to go it alone -- everyone
wanted to go with him. Both parties in Congress were eager to show they were
tough on terrorism. But the obsession with presidential prerogatives created
fights where no fights needed to occur and made huge messes out of programs that
could have functioned more efficiently within the rules.

Jane Mayer provided a close look at this effort to undermine the constitutional
separation of powers in a chilling article in the July 3 issue of The New
Yorker. She showed how it grew out of Vice President Dick Cheney’s long and
deeply held conviction that the real lesson of Watergate and the later Iran-
contra debacle was that the president needed more power and that Congress and
the courts should get out of the way.

To a disturbing degree, the horror of 9/11 became an excuse to take up this
cause behind the shield of Americans’ deep insecurity. The results have been
devastating. Americans’ civil liberties have been trampled. The nation’s image
as a champion of human rights has been gravely harmed. Prisoners have been
abused, tortured and even killed at the prisons we know about, while other
prisons operate in secret. American agents "disappear" people, some entirely
innocent, and send them off to torture chambers in distant lands. Hundreds of
innocent men have been jailed at Guantanamo Bay without charges or rudimentary
rights. And Congress has shirked its duty to correct this out of fear of being
painted as pro-terrorist at election time.

· We still hope Congress will respond to the Supreme Court’s powerful and
unequivocal ruling on Guantanamo Bay and also hold Mr. Bush to account for
ignoring the law on wiretapping. Certainly, the president has made it clear that
he is not giving an inch of ground.

*


Washington Post --

July 14, 2006

POLICY REWRITE REVEALS RIFT IN ADMINISTRATION
Top Officials Split on Treatment of Detainees

By R. Jeffrey Smith and Jonathan Weisman

http://www.washingtonpost.com/wp-dyn/content/article/2006/07/13/
AR2006071301637.html

Three days of congressional testimony this week by senior Bush administration
officials about U.S. treatment of detainees in the war on terrorism have made
clear that the administration remains deeply divided on the issue and unsure how
to replace a key policy that the Supreme Court declared illegal two weeks ago.

Interagency divisions normally kept hidden from public view have been on unusual
display as officials from the Justice Department and the Pentagon have offered
starkly different accounts of the administration's reaction to the court's
opinion, baffling members of Congress and other interested parties about U.S.
intentions.

The testimony has shown that the Justice Department -- which had insisted on the
legality of the existing policy -- is eager to sharply limit the impact of the
Supreme Court's decision, while military lawyers and some other Pentagon
officials are celebrating it as a vindication of their long-held concerns about
U.S. detainee policy.

The conflicting testimony followed Tuesday's announcement of a Pentagon policy
to follow Geneva Conventions requirements granting basic human and legal
protections to all terrorism suspects in U.S. custody. Several members of
Congress said they had been told that the dispute will not be resolved for some
time.

At issue is how to repair the hole blown in administration policy by the Supreme
Court's double-barreled June 29 critique of orders signed by Bush in 2001 and
2002. The Bush orders held that terrorism suspects are not subject to the
protections of an international treaty governing wartime detentions because they
are not part of a regular army. They also established a system of military
tribunals to assess detainees' guilt and mete out punishments.

The court held that, contrary to Bush's orders, the government must heed the
demands of a 56-year-old international treaty, Common Article 3 of the Geneva
Conventions, that detainees "shall in all circumstances be treated humanely" and
without "outrages upon personal dignity" such as humiliating and degrading
treatment -- even though the suspects are not regular soldiers and may routinely
mistreat their own captured soldiers. It also said the military tribunals, as
formulated by the Pentagon under White House guidance, were illegal.

Senate Armed Services Committee chairman John W. Warner (R-Va.), who yesterday
opened a series of congressional hearings meant to produce new legislation on
the issue, said at the outset that "the eyes of the world are upon us, and we
must set the standards."

But Warner added that National Security Adviser Stephen J. Hadley and White
House legal counsel Harriet Miers told him recently that "there were some honest
differences . . . as to approach within the administration," and no uniform
position will be reached before next week.

The dispute now being waged over detainee treatment is the latest flowering of
tensions that have persisted for more than three years, as officials from
different departments have tried to reconcile a long history of U.S. support for
humane treatment of detainees with pressures to use extraordinary means to
acquire intelligence from suspected terrorists who might pose large risks to
civilians.

Some of the administration's more conservative appointees, including Steven G.
Bradbury, the Justice Department Office of Legal Counsel's acting chief, have
been openly scornful of the Supreme Court's opinion, and suggested writing new
legislation that would narrowly construe U.S. detainee treatment obligations and
clearly exempt U.S. personnel from criminal liability if they violate Common
Article 3.

Other officials, including top military lawyers at the Defense Department who
testified at Warner's hearing yesterday and policymakers at the State
Department, have solidly backed the Supreme Court's decision that previous
administration legal reasoning on the issue -- supported by Chief Justice John
G. Roberts while serving on an appellate court in a June 2005 opinion -- was
"erroneous."

"I do agree with the reinforcement of the message that Common Article 3 is a
baseline standard. And I would say that, at least in the United States Army --
and I'm confident in the other services -- we've been training to that standard
and living to that standard since the beginning of our Army, and we continue to
do so," said Major Gen. Scott C. Black, judge advocate general of the Army.

Black's testimony contrasted with Bradbury's testimony before House and Senate
committees on Tuesday and Wednesday that the Supreme Court had overturned a U.S.
detainee policy that the administration considered settled in 2002 and
reaffirmed in legislation passed last year that was meant to obviate any Supreme
Court objections.

"The United States has never before applied Common Article 3 in the context of
an armed conflict with international terrorists," Bradbury complained, adding
that this was not foreseen by those who drafted the Geneva Conventions. The
"application of Common Article 3 will create a degree of uncertainty for those
who fight to defend us from terrorist attack," raising the possibility of felony
prosecution for violators, Bradbury said.

Bradbury also expressed concern that foreign interpretations of the meaning of
Article 3 might unduly hamper U.S. conduct and urged legislation that would
insulate the government from that consequence. The military lawyers, in
contrast, testified that it was appropriate to consider foreign interpretations
and that U.S. conduct must in any event follow a higher standard of conduct than
other nations.

Sen. Lindsey O. Graham (R-S.C.) said in an interview that he is optimistic that
a consensus will be formed on new legislation. "The current situation is
terrible," he said. "We don't have the legal infrastructure in place that will
effectively prosecute people, and our image has suffered."

Senate Majority Leader Bill Frist (R-Tenn.) said he still believes tribunal
legislation could be ready for passage by early September. Indeed, House Armed
Services Committee Chairman Duncan Hunter (R-Calif.) said a quick compromise
based on the president's initial tribunal structure could be amended to the
annual defense policy bill and passed before the August recess.

But Hunter said administration officials asked him to slow down the process to
allow for more deliberation. "At end of the day, the administration isn't going
to say, 'Let's bet on a 50-50 proposition on tribunals and hope it doesn't get
struck down again' " by the Supreme Court, said a senior Senate Republican aide.
"They will want this to hold."

Several members of Congress expressed concern that political posturing on the
issue will become fierce in the meantime.

The Republican aide complained in particular about testimony Wednesday by Daniel
J. Dell'Orto, the Pentagon's principal deputy general counsel, who complained
about soldiers having to read Miranda rights when they knock down doors in
Afghanistan or fill out paperwork before seizing a laptop computer.

Similar concerns about "Miranda" warnings were expressed yesterday by White
House spokeswoman Dana Perino while traveling with Bush in Germany en route to
the Group of Eight summit in Russia.

But Graham said rhetoric involving Miranda was inappropriate because the policy
at issue primarily concerns how to conduct interrogations of detainees.

[ Staff writer Peter Baker in Germany contributed to this report. ]

*


Boston Globe --

July 14, 2006

FACTUAL ERRORS CITED IN CASES AGAINST DETAINEES
Lawyers demand new trial system at Guantanamo

By Farah Stockman

http://www.boston.com/news/nation/washington/articles/2006/07/14/factual_errors_
cited_in_cases_against_detainees/

WASHINGTON -- The US military's accusations against detainees at Guantanamo Bay
contain factual errors and some easily disproved assertions, according to
declassified records, raising questions about whether the US military has
thoroughly investigated its cases against the roughly 400 inmates.

For instance, one detainee is accused of belonging to an Al Qaeda cell "circa
1998," according to the summary of evidence prepared for his hearing. But
Pentagon records show the detainee was born in 1986, making him 11 or 12 in
1998.

In another case, a detainee stands accused of attending a terrorist training
camp in July 2001. But copies of pay stubs show he was a chef in London at the
time.

Defense lawyers say the cases underscore the need for new judicial procedures at
Guantanamo, as the Bush administration grapples with a Supreme Court ruling that
struck down the system of military trials at the base.

"We have been hearing about errors like this for years from numerous lawyers
across the country," said Emi MacLean, a fellow at the Center for Constitutional
Rights, which helps defend Guantanamo detainees.

Administration lawyers argued this week in hearings before Congress that giving
detainees the legal rights available in US courts would hinder the war on
terror.

"It is simply not feasible in time of war to gather evidence in a manner that
meets strict criminal procedural requirements," Daniel J. Dell'Orto, the Defense
Department's principal deputy general counsel, said Tuesday.

But two Republican senators said yesterday that the White House was considering
whether to create a system of trials for Guantanamo detainees based on the
uniform code of military justice. The code was established to try US soldiers
accused of crimes, and would give detainees far more legal rights than they have
now.

The current system includes initial hearings, annual reviews, and then, for a
small minority of detainees, military trials.

At each stage, the military is allowed to present anonymous witnesses, secret
evidence, and hearsay evidence -- all of which are difficult for the defense to
challenge.

The obvious errors in some of the accusations, lawyers say, raise deeper
questions about the care with which the still-secret portions of the cases were
prepared and make it that much more important that the system be revamped.

"You can see why they are afraid to present the evidence before an open and
transparent system," MacLean said.

One of the most visible errors became public in 2004, when three British
detainees who had been accused of appearing in an Al Qaeda video in Afghanistan
were released after the British government proved that they were in London at
the time.

Defense lawyers say such errors are more widespread.

In an ongoing case, the US military has accused Ahmed Errachidi, a Moroccan
detainee, of "receiving training at the Al Farooq training camp in July 2001, to
include weapons training, war tactics, and bomb making," according to a summary
of evidence for his initial hearing provided to the Globe by his lawyers at
Reprieve, a British legal-services organization.

But Chris Chang, an investigator for Reprieve, uncovered pay stubs showing that
Errachidi had been a chef in two London restaurants, the Westbury and the
Archduke, in July 2001. Chang's office provided copies of the pay stubs to the
Globe.

"Presumably, the US military, in combination with the intelligence services of
the United States, has exponentially more resources than we do and could easily
have obtained the evidence discussed below, were it of a mind to look for it,"
Chang wrote in an affidavit submitted to Guantanamo officials.

Errachidi, who had worked as a chef in London since 1985, has been held at
Guantanamo Bay since his 2002 arrest in Pakistan.

In another case, military interrogators made significant translation mistakes
when they first interrogated Mohamed el Gharani, one of Guantanamo's youngest
detainees, according to his lawyer, Clive Stafford Smith .

Gharani, whose name the US military spells "Qarani," was only 14 when he was
arrested in Pakistan in October 2001. He was later interrogated using a
translator from Yemen who spoke a different dialect of Arabic than was spoken in
his native Saudi Arabia, according to Gharani's lawyer.

"The word 'zalata' in Yemen means money, but in his Saudi Arabian dialect, it
means tomato," said Smith. "They asked him, 'When you went to Pakistan, where
did you get your zalata?' and he tells them all these different shops where you
could buy tomatoes in Karachi. They write them all down, thinking that this 14-
year-old kid is a big financier who was able to get money from all these
different places."

The mistake was soon caught, Smith said. Financing terrorism did not show up in
the list of accusations against Gharani.

But another key accusation appeared: that "the detainee was identified as
belonging to a London, United Kingdom cell led by Abu Qatada al Masri, circa
1998." Yet, according to the Pentagon's own records, Gharani was born in 1986,
making him just 11 or 12 at the time.

Chito Peppler, a Pentagon spokesman, said the date referred to when "Abu Qatada
became active." He maintained that it was possible that Gharani had been a part
of the cell before his arrest at 14.

Smith said Gharani has never been to London.

Peppler said he could not provide specifics on other cases.

Sam Zia-Zarifi, a Human Rights Watch researcher, said transcripts of Guantanamo
proceedings show widespread confusion over names, places, and events in
Afghanistan that are relevant to the detainees' classification as "enemy
combatants."

"That happened in a handful of occasions," Zia-Zarifi said. "I found enough of a
pattern to be alarming."

It is not the first time the military has been under fire for its Guantanamo
investigations. Last month, the Globe reported that the government routinely
failed to locate key defense witnesses.

According to the transcripts, 34 detainees had witnesses approved to testify at
the tribunal, but in all 34 cases, the detainees were told that the witnesses
could not be found. Yet a Globe reporter tracked down three witnesses in three
days of work.

"It's no surprise that it is often very difficult to find the necessary
evidence, yet the administration doesn't even try," Senator Edward M. Kennedy,
Democrat of Massachusetts, said on the Senate floor shortly after the article
ran.

"The shocking ease with which The Boston Globe located these witnesses suggests
that the government didn't make an effort to find them, and raises serious
questions about the administration's good faith in dealing with the detainees at
Guantanamo."

*


New York Times --

July 2, 2006

THE COURT ENTERS THE WAR, LOUDLY

By Adam Liptak

http://www.nytimes.com/2006/07/02/weekinreview/02liptak.html

JOHN C. YOO, a principal architect of the Bush administration's legal response
to the terrorist threat, sounded perplexed and a little bitter on Thursday
afternoon. A few hours earlier, the Supreme Court had methodically dismantled
the legal framework that he and a few other administration lawyers had built
after the September 11, 2001, attacks.

"What the court is doing is attempting to suppress creative thinking," said
Professor Yoo, who now teaches law at the University of California, Berkeley.
"The court has just declared that it's going to be very intrusive in the war on
terror. They're saying, 'We're going to treat this more like the way we
supervise the criminal justice system.' "

While in the Justice Department's Office of Legal Counsel from 2001 to 2003, Mr.
Yoo helped write a series of memorandums setting out a bold and novel legal
strategy to find, hold, question and punish the nation's enemies. The
memorandums said the Geneva Conventions do not apply to people the
administration designates as enemy combatants. They contemplated the use of
highly coercive interrogation techniques. They justified secret surveillance.

The court's decision in Hamdan v. Rumsfeld, Professor Yoo said, may signal the
collapse of the entire enterprise. "It could affect detention conditions,
interrogation methods, the use of force," he said. "It could affect every aspect
of the war on terror."

He was not overstating his case. True, the decision itself -- holding that the
government could not try detainees held at Guantanamo Bay, Cuba, for war crimes
in a particular way -- was narrow, given that it directly affected only 10 men
and did not address the administration's broader contention that it can hold
those men and hundreds of others without charges forever. And Congress may yet
put some or all of the president's programs on firmer legal footing.

But the effect of the decision, constitutional lawyers across the political
spectrum agreed, could devastate the administration's main legal justifications
for its campaign against the terrorist threat.

"The mood music of this opinion so lacks the traditional deference to the
president," said John O. McGinnis, who served in the Justice Department from
1987 to 1991 and now teaches law at Northwestern, "that it would seem to have
implications for his other programs."

The administration had built its case in part on a vote by Congress, taken a
week after Sept. 11, that authorized the president to "use all necessary and
appropriate force" against those who participated in and supported the attacks.
The administration has relied on that authorization as legal support for several
of its programs.

In 2004, the Supreme Court endorsed a part of this argument, but Justice John
Paul Stevens, writing for the majority in Hamdan, was having none of it. There
is, he said "nothing in the text or legislative history" of the authorization
"even hinting that Congress intended to expand or alter" existing laws
concerning military trials.

The opinion, Professor Yoo said, seemed to require Congress to specify a laundry
list of powers before the president can act.

"I worked on the authorization," he added. "We wrote it as broadly as possible.
In past wars, the court used to let the president and Congress figure out how to
wage the war. That's very different from what's happening today. The court said,
'If you want to do anything, you have to be very specific and precise about
it.' "

The logic of the ruling and its requirement that Congress directly authorize
presidential actions even in wartime has broad implications. For one thing, said
Laurence H. Tribe, a law professor at Harvard, it seems to destroy the
administration's argument that Congress blessed the National Security Agency's
domestic surveillance program when it voted for the authorization.

"That argument is blown out of the water and is obliterated," Professor Tribe
said.

Justice Stevens also took aim at the administration's chief constitutional
argument, the one that critics call "Article II on steroids."

Because Article II of the Constitution, among other things, anoints the
president as commander in chief, Professor Yoo and other administration lawyers
have argued the president can ignore or override laws that seem to limit his
authority to conduct war. In the current struggle against terrorism, they argue,
the entire world is the battlefield.

Perhaps not any more. Steven G. Calabresi, a law professor at Northwestern and a
founder of the Federalist Society, the conservative legal group, said this
second argument is also in trouble.

"The court is certainly not embracing the broader Article II power," he said.

Indeed, a footnote in the majority opinion, one sure to be read closely, seems
tailored to address these other controversies by rejecting the argument that the
president is free to ignore Congressional limitations on his power.

"Conceivably the court had in mind controversies like the N.S.A. terrorist
surveillance program" in crafting the footnote, said Curtis A. Bradley, a former
Bush administration lawyer who now teaches law at Duke.

There are supporters of the N.S.A. program who say that the Hamdan decision does
not affect it. They note that a 2002 appeals court decision said that Congress
"could not encroach on the president's constitutional power" to conduct
warrantless surveillance to obtain foreign intelligence.

The wholesale rejection of the administration's positions in Hamdan may have its
roots in part in judicial hostility toward the memorandums Professor Yoo helped
prepare several years ago. The justices in the majority, said Professor
McGinnis, "have been so skeptical of a variety of legal interpretations coming
out of the executive branch, like the so-called torture memos, that they are not
giving the president any deference."

But some justices seemed to leave a door open, suggesting that the decision is
not so much a judicial attack on executive power as it is an insistence that
Congress, rather than a small group of administration lawyers, must play a
leading role in formulating the response to terror.

"Where, as here, no emergency prevents consultation with Congress," Justice
Stephen G. Breyer wrote in a brief concurrence that three other justices joined,
"judicial insistence upon that consultation does not weaken our nation's ability
to deal with danger. To the contrary, that insistence strengthens the nation's
ability to determine -- through democratic means -- how best to do so."

But Professor Yoo was not inclined to accept the decision as a triumph of the
democratic process. Instead, he saw it as a judicial usurpation of the
president's power to protect the nation. "The court is saying we're going to be
a player now," he observed ruefully.

*


The Guardian --

July 1, 2006
FOUND: 'NON-CONTACTABLE' WITNESSES WHO COULD FREE A GUANTANAMO DETAINEE
By Declan Walsh

http://www.guardian.co.uk/guantanamo/story/0,,1810329,00.html

The United States government said it could not find the men that Guantanamo
detainee Abdullah Mujahid believes could help set him free. The Guardian found
them in three days.

Two years ago the American military invited Mr Mujahid, a former Afghan police
commander accused of plotting against the US, to prove his innocence before a
special military tribunal.

As was his right, Mr Mujahid called four witnesses from Afghanistan.

But months later the tribunal president returned with bad news: the witnesses
could not be found. Mr Mujahid's hopes sank and he was returned to the wire-mesh
cell where he remains today.

The Guardian's search for Mr Mujahid's witnesses proved successful within three
days. One was working for President Hamid Karzai, another was teaching at a
leading American college and the third was living in Kabul. The fourth was dead.

Each witness said he had never been approached by the Americans to testify in Mr
Mujahid's hearing.

The case illustrates the flaws that have discredited Guantanamo-style justice
and which led the US supreme court to declare such trials illegal on Thursday in
a major rebuke to the Bush administration.

Mr Mujahid is one of 380 Guantanamo detainees whose cases were reviewed at
"combatant-status review tribunals" in 2004 and 2005. The tribunals were hastily
set up following a court ruling that the prisoners, having been denied all
normal legal rights, should be allowed to prove their innocence. Ten of the
hearings proceeded to full trials, including that of Osama bin Laden's aide,
Salim Ahmed Hamdan, who brought the successful supreme court appeal.

But by the time the review tribunals ended last year the US government had
located just a handful of the requested witnesses. None was brought from
overseas to testify. The military lawyers simply said they were "non-
contactable".

That was not entirely true.

Abdullah Mujahid was originally identified by Washington-based reporters from
the Boston Globe after trawling through pages of testimony from the military
trials. American forces arrested Mr Mujahid in the southern Afghan city of
Gardez in mid-2003, claiming that he had been fired as police chief on suspicion
of "collusion with anti-government forces", according to official documents.
Later, they alleged, he attacked US forces in retaliation.

In the military tribunal Mr Mujahid protested his innocence. He enjoyed good
relations with American soldiers and had been promoted, not fired, he said.

The three living witnesses he requested were easily located with a telephone, an
internet connection and a few days' work.

Shahzada Massoud was at the presidential palace, where he advises Mr Karzai on
tribal affairs. Gul Haider, a former defence ministry official, was found
through the local government in Gardez.

The interior ministry gave an email address for the former minister, Ahmed Ali
Jalali, although he could as easily have been found on the internet - he teaches
at the National Defence University in Washington DC.

The witnesses corroborated Mr Mujahid's story with some qualifications. Mr
Jalali, the former interior minister, said Mr Mujahid had been fired over
allegations of corruption and bullying - not for attacking the government.

Mr Haider, the former defence official, said Mr Mujahid had contributed 30
soldiers to a major operation against al-Qaida in March 2002. "He is completely
innocent," he said.

In Gardez, Haji Muhammad Hasan, 65, keeps a stack of Red Cross letters as the
only proof of his son's whereabouts. "I feel completely helpless," he said in
despair. Beside him the detainee's shy sons - aged three, four and five - waited
for news of a father they could hardly recall.

*


Boston Globe --

June 28, 2006

SENATOR CONSIDERS SUIT OVER BUSH LAW CHALLENGE

By Charlie Savage

http://www.boston.com/news/nation/washington/articles/2006/06/28/senator_conside
rs_suit_over_bush_law_challenge/

WASHINGTON -- The Senate Judiciary Committee chairman, Arlen Specter, said
yesterday that he is "seriously considering" filing legislation to give Congress
legal standing to sue President Bush over his use of signing statements to
reserve the right to bypass laws.

Specter, a Pennsylvania Republican, made his comments after a Judiciary
Committee hearing on signing statements, which are official documents that Bush
has used to challenge the constitutionality of more than 750 laws when signing
legislation.

Bush has issued more signing statements than all previous presidents combined.
But he has never vetoed a bill, depriving Congress of any chance to override his
judgment. If Congress had the power to sue Bush, Specter said, the Supreme Court
could determine whether the president's objections are valid under the
Constitution.

"There is a sense that the president has taken the signing statements far beyond
the customary purviews," Specter said at the hearing. He added that "there's a
real issue here as to whether the president may, in effect, cherry-pick the
provisions he likes, excluding the provisions he doesn't like.... The president
has the option under the Constitution to veto or not."

But a lawyer for the administration, Deputy Assistant Attorney General Michelle
Boardman, testified that Bush has shown Congress respect by using signing
statements instead of vetoes when he has concerns about parts of bills.

"Respect for the legislative branch is not shown through [making a] veto,"
Boardman argued. "Respect for the legislative branch, when we have a well-
crafted bill, the majority of which is constitutional, is shown when the
president chooses to construe a particular statement in keeping with the
Constitution, as opposed to defeating an entire bill that would serve the
nation."

Boardman said the president has the power and responsibility to bypass any
statute that conflicts with the Constitution, even in cases "where the Supreme
Court has yet to rule on an issue, but the president has determined that a
statutory law violates the Constitution."

She also stressed that previous presidents had used signing statements to raise
constitutional concerns about provisions in legislation they were signing rather
than vetoing the entire bill.

But Senator Russ Feingold, Democrat of Wisconsin, said the administration has
used that power "far more often" than any predecessor. Moreover, Feingold said,
Bush "has done so to advance a view of executive power that, as far as I can
tell, has no bounds."

He added that the White House has "assigned itself the sole responsibility for
deciding which laws it will comply with, and in the process has taken upon
itself the powers of all three branches of government."

Throughout the hearing, Boardman received little friendly questioning from the
dais beyond that of Senator John Cornyn, Republican of Texas, who said he didn't
know why Bush's signing statements were "controversial at all" since other
presidents also issued them, including President Clinton, who challenged 140
provisions over eight years.

Cornyn also noted that most of the time, the signing statements involve legal
disagreements that will never be resolved by the Supreme Court because nobody
has standing to file a lawsuit over them. Specter later said that he believed
Congress could pass a law giving itself, as the author of laws, standing to sue
Bush over his signing statements. It was unclear, however, whether there would
be enough votes in Congress to pass such a bill.

Cornyn was the only Republican other than Specter to attend the hearing. By
contrast, five of the eight Democrats on the panel showed up.

The Democrats repeatedly praised Specter, as a Republican, for holding the
hearing. The ranking Democrat, Senator Patrick Leahy of Vermont, said that the
administration and its defenders were showing "utter contempt" for the concerns
of Congress about Bush's expansive theory about his own constitutional powers.

"Ms. Boardman, I wish you well," Leahy said. "But, you know, it's almost
irrelevant what you say because, once again, this administration has said, even
with a rubber-stamp Republican Congress, they don't care what we think. They're
going to decide what laws to follow and what laws to disobey, and... nobody up
here will call them on it."

Despite the uneven attendance, the hearing served to focus greater attention on
the administration's legal claims. At the White House, Press Secretary Tony Snow
denied that Bush was using signing statements as backdoor way to "win" on issues
after failing to persuade Congress to write legislation to his liking.

Snow also insisted that the president was merely fixing "relatively minor"
constitutional flaws that Congress had "unwittingly" included in bills during
the lawmaking process.

But in the Judiciary Committee hearing, Specter and several other senators
focused on several high-profile signing statements in which Bush contradicted
the direct intent of Congress. In particular, the committee repeatedly brought
up Bush's signing statement in December on a torture ban.

Congress voted overwhelmingly to outlaw all forms of abusive interrogation
techniques by US officials. Bush and Vice President Dick Cheney fought the ban,
asking Congress to allow the president to waive the ban under certain
circumstances to preserve the president's "flexibility" in the war on terrorism.
But Congress rejected the waiver, passing an absolute ban in all circumstances.

When it became clear that the torture ban would pass, Bush called a press
conference and said he supported it. But later, he issued a signing statement
saying that he had the constitutional power, as commander-in-chief, to waive the
ban in a situation where he felt harsh interrogation techniques were necessary
to protect national security.

The committee also heard testimony from legal scholars on both sides of the
issue.

Christopher Yoo, a Vanderbilt University law professor, and Nicholas
Rosenkranz, a Georgetown University law professor who formerly worked in the
Bush Justice Department, agreed with Boardman that there was nothing exceptional
or inappropriate about the way Bush has used signing statements.

"The recent brouhaha over presidential signing statements is largely
unwarranted," Rosenkranz said. "Signing statements are an appropriate means by
which the president fulfills his constitutional duty to take care that the laws
be faithfully executed."

Harvard Law School professor Charles Ogletree and former Reagan administration
lawyer Bruce Fein testified that Bush's use of signing statements had gone too
far, endangering the constitutional system of checks and balances.

"This excessive exercise of executive power, coupled with the failure to use the
authorized veto power, creates serious issues of constitutional magnitude, and
requires a legislative response," Ogletree said.

*

New York Times --

June 15, 2006

JIHADIST OR VICTIM: EX-DETAINEE MAKES A CASE

By Tim Golden

http://www.nytimes.com/2006/06/15/world/15begg.html

When President Bush ordered Moazzam Begg's release last year from the Guantanamo
prison camp, United States officials say, he did so over objections from the
Pentagon, the C.I.A. and the F.B.I. -- all of which warned that Mr. Begg could
still be a dangerous terrorist.

But American officials may not have imagined the sort of adversary Mr. Begg
would become in the war of perception that is now a primary front in the
American-led campaign against terrorism.

"The issue here is: Apply the law," Mr. Begg told an audience earlier this
spring at the Oxford Literary Festival in England, one of many stops on a
continuing lecture tour. "If I've committed a crime, we say, take this to court.
After all of that, if they can't produce something in court, then shame on
them!"

With a new book about his experiences and a small blizzard of media attention,
Mr. Begg, a 37-year-old Briton of Pakistani descent, has emerged over the last
few months as a minor celebrity in his home country.

Human rights groups have hailed his courage. University students have invited
him to speak. Journalists have generally taken at face value his claim that he
is an innocent man, unlawfully seized and arbitrarily held. After the three
suicides at Guantanamo last Saturday, Mr. Begg instantly became a sought-after
commentator for British newspaper and television reporters.

The respectful reception for Mr. Begg -- whom the Pentagon still portrays as a
terrorist -- is one of many markers of the waning credibility of Washington's
detention policies overseas, and particularly in European countries that are
closely allied with the United States in fighting terrorists.

A British feature film that is to be released in the United States on June 23,
"The Road to Guantanamo," depicts another group of former detainees as innocent,
good-natured men cruelly mistreated by their American captors. The British
attorney general, Peter Goldsmith, recently called the prison "unacceptable" and
said it should be shut down.

Whether Mr. Begg is the potential threat the Pentagon claims or the harmless man
he professes to be cannot be fully resolved from the available evidence. But the
mystery makes Mr. Begg one of the more intriguing case studies in the trans-
Atlantic divide on detention policy.

He and another Briton, Feroz Abbasi, were among the first six Guantanamo
detainees designated by Mr. Bush in 2003 as eligible for trial by military
commissions there. Pentagon officials say Mr. Begg trained at three terrorist
camps, "associated" with an array of operatives of Al Qaeda and was ready to
fight American-led forces in Afghanistan but fled into the Tora Bora mountains
when the Taliban lines collapsed.

The British government's refusal to accept the Guantanamo tribunals, in which
rights of due process are sharply limited, eventually forced American officials
to set aside the prosecutions of Mr. Begg and Mr. Abbasi. Officials said they
and two other Britons were finally sent home, in January 2005, after Mr. Bush
overruled most of his senior national security advisers as a favor to Prime
Minister Tony Blair, who was then being harshly criticized for his support of
the Iraq war.

Now, the Bush administration finds itself in the awkward position of insisting
on the danger of a man it set free. "He has strong, long-term ties to terrorism
-- as a sympathizer, as a recruiter, as a financier and as a combatant," said a
Defense Department spokesman, Bryan Whitman.

In interviews in Britain and in his memoir, which is to be published in the
United States on Sept. 11 as "Enemy Combatant: My Imprisonment at Guantanamo,
Bagram and Kandahar," Mr. Begg denied that he ever supported terrorism,
knowingly associated with Qaeda members or took up arms against the United
States. Rather, he offers himself as evidence that the wide American net had
trapped many Muslims who never threatened United States interests.

A Professorial Air

A small, soft-spoken man with a professorial air, Mr. Begg has distinguished
himself from other former prisoners partly by his tone.

While others have told (and, in some cases, sold) the British press lurid tales
of American interrogators' tempting them with prostitutes and torturing them to
confess, Mr. Begg avoids the word torture. He was sometimes badly mistreated, he
says, and kept in prolonged isolation. But he makes a point of telling audiences
of his friendships with some of his military police guards, and he espouses a
tolerance that seems incompatible with the hatred of militants to whom American
officials link him.

One British interviewer described Mr. Begg as "devastatingly reasonable."

Of nearly 20 American military and intelligence officials who were interviewed
about Mr. Begg, none thought he had been wrongly detained. But some said they
doubted that he could be tied to any terrorist acts. At Bagram, where he was
held for 11 months, Mr. Begg's interrogators nicknamed him Hemingway.

"I don't think he was the mastermind of 9/11, but nor do I think he was just an
innocent," said Christopher Hogan, a former military interrogator who oversaw
some of Mr. Begg's early questioning there but said he did not have access to
top-secret American or British intelligence files on him. "We compared him to
somebody who went off to Spain during the civil war -- more of a romantic than
some sort of ideologically steeled fighter."

Like other military and intelligence personnel familiar with Mr. Begg's
interrogations, Mr. Hogan also described him as having been unusually
forthcoming. "He provided us with excellent information routinely," he said.

Yet if Mr. Begg is a more ambiguous figure than the Bush administration now
describes, the story of his life before he was seized in Pakistan in January
2002 is also more complicated than the account he has put forward, and full of
questions.

Like many from Europe who fell in with Islamic militants in the 1990's, Mr. Begg
was a son of immigrants who settled in a working-class environment where
economic struggles fueled racial prejudice.

During high school in Birmingham, the industrial capital of the English
Midlands, he joined a gang of mostly South Asian teenagers who banded together
against skinheads, punk rockers and other anti-immigrant legions of the day. Mr.
Begg, who now stands 5-foot-3, was the smallest member of the gang; he said he
rarely joined in the fights.

But much of his upbringing did not fit the pattern. His family was relatively
comfortable and liberal. His father, a Muslim born in India, was a bank manager
who wrote poetry in Urdu. He sent Moazzam and his brother to a Jewish primary
school, where they wore blazers with the Star of David.

Inspired by Mujahedeen

Moazzam's interest in Islam was awakened during a trip with relatives to
Pakistan and Saudi Arabia in his late teens. On a second visit to Pakistan in
late 1993, he writes, he crossed into Afghanistan with some young Pakistanis and
visited a camp where mujahedeen rebels were training to fight the Soviet-backed
Afghan government.

Inspired by the guerrillas' commitment, he threw himself into helping besieged
Muslims in Bosnia and Herzegovina. He said he traveled to the Balkans 9 or 10
times with a small aid agency, Convoy of Mercy. But the group's founder, Asad
Khan, said he had no recollection of Mr. Begg.

Defense Department officials said one of Mr. Begg's former associates was Omar
Saeed Sheikh, who volunteered on a Convoy trip in 1993. Mr. Sheikh was later
convicted of kidnapping Western tourists in India and is facing execution in
Pakistan for the murder of the Wall Street Journal correspondent Daniel Pearl.
Mr. Begg insisted he did not know Mr. Sheikh.

There are some notable gaps in Mr. Begg's memoir. The book does not mention that
while working as an interpreter at a government welfare office in 1994, he and a
friend were arrested and charged with defrauding the agency. The police found a
night-vision sight, a bullet-proof vest and what news reports called "extremist
literature" at Mr. Begg's home.

The charges against him were later dropped for lack of evidence, but his friend,
Shahid A. Butt, pleaded guilty and served 18 months in prison. Mr. Butt was
later convicted with seven other Britons of plotting a terrorist bombing in
Yemen, where he served a five-year sentence.

In early 1998 Mr. Begg, by then married, with two small children, moved his
family to Peshawar, Pakistan, on the border with Afghanistan. He describes the
period as idyllic, with evening strolls through a local park and a quick trip to
visit another training camp in Afghanistan, this one run by Iraqi Kurds. He and
his wife socialized primarily with members of the town's small Palestinian
community, as well as some Arab and Afghan veterans of the anti-Soviet jihad.

But the book does not mention one Palestinian friend, Khalil Deek, who also
lived in Peshawar at the time. The United States 9/11 commission described Mr.
Deek, a naturalized American, as an associate of Abu Zubaydah, a senior Al Qaeda
lieutenant of Palestinian descent who was also in Peshawar then, recruiting new
operatives and sending them to train at Afghan camps.

An American counterterrorism official who began tracking Mr. Begg in 1999 said
the Central Intelligence Agency and MI5, Britain's domestic intelligence
service, suspected Mr. Begg of working with Mr. Deek to create a CD-ROM version
of a terrorist manual, "Encyclopedia of Jihad," which Mr. Deek gave to two
Palestinians who plotted with Mr. Zubaydah to bomb tourist sites in Jordan.

American intelligence officials also said Mr. Deek helped arrange transportation
to Jordan for some operatives in the foiled plot, but after being held in Jordan
for 17 months, he was released without charge.

Mr. Begg acknowledged in an interview that he had met Mr. Deek in Bosnia and
later invested with him in a small business deal to sell traditional Pakistani
clothing. But he said he had never met Abu Zubaydah -- something Pentagon
officials said he had admitted to his American interrogators.

He also denied an assertion by Mr. Whitman, the Pentagon spokesman, that he
spent five days in early 1998 at Derunta, a notorious Al Qaeda-affiliated
training camp in Afghanistan, learning about poisons and explosives.

Two Defense Department officials read to a reporter from what they said were
lengthy sworn statements Mr. Begg made to the Federal Bureau of Investigation,
admitting that he had supported jihad in Chechnya and Kashmir, knew a half-dozen
Al Qaeda figures and had trained at Derunta and two other Afghan camps.

Mr. Begg said that he had never told the F.B.I. anything of the sort, but that
he did sign some documents in custody because he feared for his life.

After he returned to Birmingham in the summer of 1998, he and a friend opened an
Islamic bookstore, which he described as a meeting place for young Muslims,
including some who later fought in the separatist struggle in Kashmir.

Mr. Begg received a first visit from an officer of MI5 soon after the shop
opened. A year later, in late 1999, dozens of police agents searched the book
shop and Mr. Begg's home. They were raided again in February 2000, and Mr. Begg
was arrested under the Prevention of Terrorism Act, but was quickly released
without charge.

'It Was Going Too Far'

Mr. Whitman, at the Defense Department, said the British government cited Mr.
Begg's "proven or suspected links to persons who have been arrested or convicted
of terrorist offenses worldwide," including Richard C. Reid, who was later
convicted of trying to blow up a trans-Atlantic flight with a shoe bomb. Mr.
Begg said he had never met Mr. Reid or two other men, Ibn al-Shekh al-Libi and
Abu Qatada, whom Pentagon officials linked to him.

"Up until this time I had thought it was all just a silly mistake or a fishing
trip," Mr. Begg wrote of the security services' interest in his activities, "but
now I knew it was going too far."

He said in an interview that he had never even heard of Al Qaeda before 9/11. He
knew something about Osama bin Laden, he said, but generally agreed with those
who saw Mr. bin Laden's conflict with the United States as counterproductive for
Muslims. He said he opposed attacks against civilians but saw justification for
jihadi assaults on "military targets" in "times of war."

In July 2001, little more than a year after his brief arrest, Mr. Begg moved his
wife and children to Afghanistan. Despite the Taliban's status as an
international pariah for its treatment of women and its hospitality toward Al
Qaeda, the Beggs saw it as a fine, inexpensive place to raise a family. The
memoir describes Mr. Begg's work on charity projects and his fascination with
the atmosphere of Kabul. But without television, he writes, he did not grasp the
enormity of the Sept. 11 attacks. Only when bombs and cruise missiles began to
strike on Oct. 17 did he realize "it was time to go."

But, he said, he became separated from his family and reunited with them only
after he crossed the border to Pakistan. They had been in Islamabad only a
couple of months when, on Jan. 31, 2002, Pakistani intelligence agents and
C.I.A. officers burst into their home, pulled a hood over his head and took him
away.

Mr. Begg's memoir recounts a three-year odyssey from a safe house in Pakistan to
a prison camp in Kandahar, Afghanistan, to the main military prison at Bagram
Air Base and finally to Guantanamo. He describes endlessly repetitive
interrogations, with soldiers sometimes demanding information about events that
took place after his capture.

Even now, he says, the accusations against him remain maddeningly vague.

"There is no specific allegation; there are no specific charges," he said in one
interview. "Whom did I recruit? When did I recruit them? Who told them this?
What is the corroborating information -- names, times, places?"

After repeated questions about Mr. Begg by The New York Times, Pentagon
officials offered some information they said had been declassified from
intelligence files. Mr. Whitman said the files showed Mr. Begg to be "a
sympathizer, a recruiter and a financier" for terrorists. But officials offered
almost nothing to corroborate such assertions other than excerpts they read from
the F.B.I. statements.

Still, Mr. Begg has hardly been ignored by the administration. Earlier this
year, a State Department public diplomacy official, Colleen P. Graffy,
challenged his supporters, saying, "Guantanamo is not a spa, but nor is it an
inhumane torture camp." The department's little-known Office of
Countermisinformation has also sought to refute Mr. Begg's claims.

But other American officials said their secrecy about the detainees was partly
responsible for having Mr. Begg's version of events accepted as credible.

"This has been the story of our lives here in trying to convince the world about
the propriety of keeping people in Guantanamo," said one senior administration
official in Washington, who asked not to be named because he was criticizing
government policies. "It's been difficult to persuade all U.S. government
agencies to release enough information publicly to show that individuals like
Begg represent a significant threat."

*


Boston Globe --

June 12, 2006

CRITICISM OF GUANTANAMO RISES
Pentagon IDs 3 Who Killed Selves

By Charlie Savage

http://www.boston.com/news/nation/washington/articles/2006/06/12/
criticism_of_guantanamo_rises_pentagon_ids_3_who_killed_selves/

WASHINGTON -- The suicides of three Guantanamo Bay prisoners placed more
scrutiny on the Bush administration's detention policies yesterday as details
emerged about the identities of the three men who killed themselves after being
held without charges for four years.

The Pentagon yesterday identified the three detainees who hanged themselves in
their cells early Saturday as a 28-year-old Yemeni accused of ties to senior Al
Qaeda leaders, a 21-year-old Saudi accused of fighting with the Taliban, and a
30-year-old Saudi accused of being a member of a militant missionary group that
allegedly recruits for Al Qaeda.

The Pentagon released the information hours after Saudi Arabia had separately
identified its two citizens and said it wanted their bodies repatriated for
burial.

Reaction rippled around the world to the suicides, the first reported deaths at
the military prison since it opened at a US Navy base in Cuba more than four
years ago.

Officials in Germany, Sweden, and Britain renewed calls for the United States to
close the prison and give the prisoners trials. A Saudi Arabian human rights
agency called for an outside investigation of the deaths, questioning whether
the men had been tortured.

And in the United States, two senators also sharply criticized the operation
yesterday. Arlen Specter, chairman of the Senate Judiciary Committee, called the
indefinite detention of terrorism suspects for years without trial a "grave
problem."

Specter, a Pennsylvania Republican, said on CNN that the United States should
put prisoners at Guantanamo on trial. He also said that the military has brought
many detainees to Guantanamo on evidence that may be too weak to produce a
conviction.

"Where we have evidence, they ought to be tried. . . . As to a great many
others, there is not evidence which could be brought into a court of law,"
Specter said.

Also speaking on CNN, Senator Jack Reed, a Rhode Island Democrat who sits on the
Armed Services Committee, said the administration should try to close the prison
"as quickly as possible." Reed said the administration needed to put in place
fair procedures to determine "who in fact is a terrorist" and who is not,
something, he asserted, that has not been done.

"We should recognize that as long as Guantanamo exists, it's a source of
international attention and concern," Reed said. "These types of incidents --
these suicides -- will only provoke further condemnation around the world."

The military said that guards discovered the three prisoners -- all of whom
lived in the same maximum-security cellblock -- hanging in their cells shortly
after midnight Saturday. Efforts to revive them failed.

There had been dozens of suicide attempts and widespread hunger strikes at the
base since it first opened in January 2002, but no previous attempt had
succeeded. Seeking to understand why the three detainees were able to succeed,
investigators focused yesterday on ruses used by the prisoners to prevent guards
from seeing that they had put nooses around their necks.

Quoting a base official, The New York Times reported today that investigators
have concluded that at least one of the prisoners hanged himself behind laundry
drying from the ceiling of his cell, and that he had arranged his bed to make it
look as if he were still sleeping.

Yesterday, a spokesman for the US Southern Command in Miami, Lieutenant Colonel
Jim Marshall, said he had received no reports of additional suicide attempts.
The military said it was moving to tighten its procedures to prevent suicides.

On Saturday, the prison commander, Rear Admiral Harry Harris, characterized the
suicides as a manipulative act of warfare by fanatics. "I believe this was not
an act of desperation, but rather was an act of asymmetric warfare waged against
us," he said.

But lawyers for some detainees rejected that characterization, saying that the
detainees are sinking under a sense of despair and hopelessness as their
imprisonment has dragged on for years with no end in sight.

Yesterday, the Pentagon named the three as two Saudi Arabians -- Mani Shaman
Turki al-Habardi Al-Utaybi, 30, and Yassar Talal Al-Zahrani, 21 -- and Yemeni
Ali Abdullah Ahmed, 28.

The military said Utaybi -- whom it accused of ties to Jama'at Al Tablighi, a
militant missionary group -- had been cleared to be released from the base into
the custody of another country, probably Saudi Arabia, for continued detention.
Officials did not say whether Utaybi knew about the transfer recommendation.

Authorities accused Zahrani, who was 17 when captured, of fighting with the
Taliban and facilitating weapons purchases. It said he was at the Mazer-e-Sharif
prison uprising in November 2001, when CIA officer Johnny "Mike" Spann was
killed.

The Defense Department said Ahmed had ties to Al Qaeda leaders, and that he was
a long-term hunger striker in 2005 and 2006.

Meanwhile, international criticism of the administration's detention policy at
Guantanamo mounted yesterday.

In Britain, Harriet Harman, the constitutional affairs minister, said on BBC
that "either [the prison] should be moved to America and then they can hold
those people under the American justice system, or it should be closed."

In Germany, Peter Struck, a parliamentary leader for the governing Social
Democratic Party, told the Bild newspaper that the suicides reinforced
longstanding beliefs in Europe that "the USA should shut Guantanamo and
transfer the detainees to proper court proceedings."

And Sweden's foreign minister, Jan Eliasson, called the deaths a "tragic
development" that "shows the importance of letting the Guantanamo prisoners
free or giving them a statutory trial." Eliasson said the European Union has
urged that the prison be closed.

Reaction in Saudi Arabia, a close US ally in the Middle East, was particularly
harsh. The daily Saudi newspaper al-Riyadh quoted Mufleh al-Qahtani, deputy
president of the Saudi National Assembly for Human Rights, as voicing skepticism
about the military's account that the men committed suicide.

"The detention camp is out of reach for neutral monitors, therefore, it is easy
to accuse the prisoners [of suicide]. It is possible that these doomed [inmates]
had been tortured," Qahtani was quoted as saying.

And Katib al-Shimary, lawyer for Saudi detainees at Guantanamo, echoed those
suspicions, to Saudi-owned satellite television Al Arabiya, according to
Reuters.

"The detainees' deaths reveals the mistreatment at Guantanamo and the extent
human rights are breached," he said.

President Bush said on Friday that he would like to empty Guantanamo,
transferring some of the prisoners to their home countries and giving others
trials.

The US government recently charged 10 of the 460 Guantanamo prisoners with
conspiracy to commit war crimes. It is attempting to prosecute them before a
special military commission.

The Supreme Court is currently considering whether the administration's
commissions -- which give defendants far fewer rights than an ordinary trial --
are constitutional.

The court's decision is expected by the end of June.

[ Material from news services was included in this report. ]

*


New York Times --

June 12, 2006

PRISONERS' RUSE IS SUSPECTED AT GUANTANAMO

By David S. Cloud and Neil A. Lewis

http://www.nytimes.com/2006/06/12/us/12gitmo.html

WASHINGTON, June 11 -- Three detainees at the United States military prison at
Guantanamo Bay, Cuba, tried to conceal themselves in their cells -- behind
laundry and through other means -- to prevent guards from seeing them commit
suicide, a senior military official said Sunday.

One of the prisoners hanged himself behind laundry drying from the ceiling of
the cell, and had arranged his bed to make it look as if he was still sleeping,
said the official, Lt. Cmdr. Robert T. Durand of the Navy. The other two
detainees who committed suicide also took steps to prevent guards from seeing
that they had put nooses around their necks, he added.

The deception by the prisoners raises questions about how long it took military
guards to discover the bodies. Regulations at Guantanamo call for guards to
check on each inmate every two minutes.

Military officials said one focus of an investigation into the suicides would be
the need for procedural changes, like barring prisoners from doing laundry in
their cells.

Gen. Bantz J. Craddock of the Army, who oversees Guantanamo as commander of the
United States Southern Command, told reporters on Sunday that the investigation
into the deaths "kind of boils down to two things: Are the procedures that you
have in place adequate, and then were the procedures followed to the standards?"

The Pentagon identified the three detainees as two Saudis, Mani bin Shaman bin
Turki al-Habardi, 30, and Yasser Talal Abdulah Yahya al-Zahrani, 22, and a
Yemeni, Ali Abdullah Ahmed, 33.

Reaction around the world seemed muted, though the Liberal Democratic leader in
Britain, Sir Menzies Campbell, said he was thinking about touring Guantanamo and
repeated his criticism of the policy of detaining suspects without sending them
to trial.

Democrats in the United States said little, apparently concerned about appearing
to be sympathizing with detainees who could turn out to have significant
terrorist connections.

White House officials described the three men as committed terrorists, and
military officials said that none had been among the handful of prisoners whose
cases had been brought before military commissions for prosecution.

The Pentagon released a statement describing Mr. Ahmed, the Yemeni, as a "mid to
high-level Al Qaeda operative" who was close to Abu al-Zubaydah, a senior figure
for Al Qaeda who has since been captured. The statement also said that Mr.
Habardi was a member of a terrorist group that recruits for Al Qaeda, and had
been recommended for transfer to another country, presumably Saudi Arabia. The
Pentagon said that Mr. Zahrani had been "a frontline fighter for the Taliban"
and had participated in the prison uprising in 2001 at Mazar-i-Sharif in
Afghanistan that resulted in the death of Johnny Micheal Spann, a C.I.A.
operative.

The suicides renew the question of what the Bush administration will do with the
detention center at Guantanamo, which President Bush has told interviewers
recently that he would like to close at some point in the future.

The timing appears postponed, however.

"You can't have a final disposition about Guantanamo until the Supreme Court has
ruled on the Hamdan case," said Tony Snow, the White House spokesman, referring
to a pending decision on whether detainees at Guantanamo may be tried as war
criminals before military commissions and whether they may challenge their
detentions in federal courts.

Military officials said they had translated notes left by the prisoners, but the
officials refused to describe the contents of the messages. All three men were
in the same cellblock in 6-by-8-foot cells that were not adjoining but had wire-
mesh walls, which might have enabled them to communicate, officials said.

Speaking by telephone from the Saudi holy city of Medina, Talal Abdallah al-
Zahrani, 50, the father of Mr. Zahrani, said that when he heard from his son in
a recent letter, he sounded in good spirits and appeared to be more optimistic
than before about being released soon.

"Nothing suggested that he would commit suicide, nothing," Mr. Zahrani said.

He said that the account of his son's suicide was "100 percent concocted."

His son was 17 in 2001 when he was apprehended in Afghanistan, where he worked
with Islamic charities, he said. He had memorized the Koran since his
imprisonment and said he had been behaving, Mr. Zahrani added.

Mr. Zahrani said hundreds of people attended a wake for his son on Sunday night
after he had received word of his death from Saudi authorities. His comments
about the turnout of mourners underscored the possibility that the return of the
bodies to Saudi Arabia and Yemen -- should the government allow it -- could turn
into anti-American events.

Jennifer Daskal, advocacy director for Human Rights Watch, said Sunday that the
three suicides "are an indication of the incredible despair that the prisoners
are experiencing" after many of them have been "completely cut off from the
world."

Her comments were echoed by other critics as well.

General Craddock speculated that the suicides may have been timed to affect the
Supreme Court decision on the Hamdan case.

"This may be an attempt to influence the judicial proceedings in that
perspective," he told reporters, according to a transcript of his comments
during a brief visit to Guantanamo on Sunday.

The investigation into how the three prisoners were able to hang themselves and
whether changes in procedures are necessary will be conducted by the commander
of the prison, Rear Adm. Harry B. Harris.

"There will be an after-action report that will look at whether there was
failure of S.O.P.'s or adequate S.O.P.'s that were not followed," said
Lieutenant Commander Durand, using the military acronym for standard operating
procedures.

The inquiry will probably look at whether procedures requiring guards to observe
prisoners at least every two minutes were followed the night of the suicides.
Until now, prison officials have voiced confidence that the safeguards were
adequate, pointing to the fact that despite dozens of attempted suicides in the
last four years, none had been successful.

Guards will now collect bed linens every morning to prevent prisoners from
secretly making nooses, Lieutenant Commander Durand said. In addition to
possibly revoking permission for detainees to do their own laundry, prison
officials are looking at withholding toiletries and other items that might be
used in suicide attempts, he added.

"We've got to determine and find the balance between the comfort items that we
would like to provide and the point at which comfort items in the possession of
a few determined detainees will be turned into something that could contribute
to taking their lives," General Craddock said.

There have been recent signs of growing unrest among the prisoners, including an
episode in May in which at least two prisoners attempted suicide and another was
said to have faked a suicide to lure guards into an ambush.

Several Guantanamo officers said some prisoners had spread the idea of suicide,
claiming to have had visions that the prison would not be closed until after
three prisoners had died, a possible explanation for the decision by the three
men to kill themselves at the same time.

James Yee, a former Islamic chaplain at Guantanamo, said the suicides signaled
"an important failure there."

Mr. Yee, who served at Guantanamo when the first of 41 previous suicide attempts
occurred said, "The military guards on the block are supposed to check each
detainee visually every two minutes or so."

The suicide attempt that came closest to being successful, involving a Saudi
schoolteacher who was arrested in Pakistan, where he had attended a militant
training camp, was foiled by those procedures, he said.

"At least one guard would have to walk up and down the corridor," he said. "That
saved the Saudi detainee. who was in a coma for months." Although the Saudi
detainee was not expected to survive, he recovered and has since been sent home.

Mr. Yee, a West Point graduate, was arrested on suspicion of espionage but the
charges were dropped. He left the Army after being found guilty of minor
infractions and amid overwhelming evidence that the suspicions of espionage were
groundless.

Joshua Colangelo-Bryan, a lawyer representing Jumah Dossari, a Guantanamo inmate
who has attempted suicide numerous times, said he had been told that guards were
expected to keep close watch on prisoners, observing them every 30 seconds. But
he said the procedures were difficult to follow in practice.

While visiting his client last November, he said he found Mr. Dossari in a
bathroom trying to hang himself and slit his wrists. Even though a video camera
had been installed in the bathroom, Mr. Colangelo-Bryan said guards did not
respond until he called them.

Though the Bush administration has been under pressure -- from the United
Nations, European countries and the International Committee of the Red Cross --
about the Guantanamo detention center, White House officials did not indicate
that they viewed the suicides as a major political problem. The State Department
alerted American embassies in Europe and the Middle East, and asked them to
contact government officials. But White House officials said Mr. Bush did not
make calls to world leaders.

"We haven't heard much response," one senior official said.

The United Nations was also notified of the suicides, the White House said. The
U.N.'s Human Rights Commission declined to visit the detention center last year
after the Bush administration refused to allow commission members to interview
or talk with detainees.

[ David E. Sanger contributed reporting from Washington for this article, Hassan
M. Fattah from France, and Alan Cowell from London. ]

*


Boston Globe --

June 11, 2006

THREE US DETAINEES COMMIT SUICIDE
Guantanamo prisoners found hanging in cells

By Charlie Savage

http://www.boston.com/news/world/latinamerica/articles/2006/06/11/
three_us_detainees_commit_suicide/

WASHINGTON -- Three detainees at the Guantanamo Bay Navy Base in Cuba were found
dead yesterday after committing suicide, marking the first prisoner deaths at
the US military prison since it opened 4 1/2 years ago.

Guards discovered the three men -- two Saudi prisoners and a Yemeni -- just
after midnight yesterday. They were hanging in their cells from nooses
improvised from bedsheets and clothing, the Guantanamo prison commander, Rear
Admiral Harry Harris, said in a conference call.

The men, who were in the same cellblock, were not breathing, and emergency
medical teams were unable to revive them, Harris said. He declined to release
their names, but said they had all been involved in long-term hunger strikes
over the past year.

Pentagon officials said the three men were in the compound with the highest
security.

"The detainees we have here are dangerous men, committed to killing Americans on
the battlefield," Harris said. "They are smart. They are creative. They are
committed. They have no regard for life -- either ours or their own. I believe
this was not an act of desperation, but rather was an act of asymmetric warfare
waged against us."

Lawyers for some Guantanamo detainees took a different stance, expressing
outrage in their own conference call. They attributed the deaths to mounting
frustration and hopelessness among the detainee population, most of whom have
been held for four years without charges.

"Nobody should be surprised by this," said Josh Colangelo-Bryan, who witnessed
his client attempt to hang himself in October and called guards to stop it. "One
of my clients told me that he would rather die than live there forever without
rights."

Lawyer Anant Raut, in a separate interview, also reported a "mounting sense of
frustration and futility" among the detainee population.

"Unfortunately, maybe these three gave up hope and were hoping that through
their deaths they can bring some more attention to the situation down there," he
said.

Harris said none of the three detainees who were found dead had been represented
by a lawyer, nor were any of them among the handful who have been charged with
conspiracy to commit acts of terrorism before a military commission.

One of the men, Harris added, was a "mid to high-level Al Qaeda operative."
Another had been involved in a prison uprising in Afghanistan, and a third was
involved in another Middle Eastern group deemed to be terrorists. He declined,
however, to offer any specific details about the men or the evidence against
them.

White House spokesman Tony Snow said President Bush "expressed serious concern"
when he was told about the suicides. Bush, who is at Camp David this weekend,
was told of the deaths by Secretary of State Condoleezza Rice.

The United States is currently holding about 460 people at Guantanamo. The
government began transporting detainees there in January 2002, shortly after the
terrorist attacks of Sept. 11, 2001, and the subsequent war to remove the
Taliban in Afghanistan . More than 280 additional detainees have been released
or transferred.

Numerous hunger strikes and suicide attempts have occurred at the prison over
the past four years. But until yesterday, none had succeeded. The military has
used force-feeding to keep those on hunger strikes alive, and Harris said all
three of the detainees had been force-fed in the past.

Autopsies would be performed on the bodies, he said, and the circumstances of
the deaths would be investigated independently by the Navy Criminal
Investigative Service.

In Miami, General Bantz J. Craddock, the head of the US Southern Command, said
that he did not know whether the detainees' remains would be interred at
Guantanamo or sent home to Saudi Arabia and Yemen. He said the State Department
was talking with those governments about how to handle the situation.

"The remains of the deceased detainees are being treated with the utmost
respect," Craddock said. "A cultural adviser is assisting . . . to ensure that
the remains are handled in a culturally and religiously appropriate manner."

Former Army Captain James Yee, the onetime Muslim chaplain at Guantanamo, said
in an interview yesterday that he had prepared detailed Muslim burial procedures
when stationed at the base in 2002 and 2003.

Under the procedures, he said, if the military decides to bury the detainees at
the base, the bodies would be washed and put in the ground wrapped in white
sheets rather than placed in coffins, according to Muslim tradition.

The military has set aside a section in a base cemetery for Muslim use, Yee
added. The base ordered U-shaped concrete covers to go over detainee bodies,
making it easier to exhume them in case their remains were later sent to their
home nations.

Muslim tradition usually calls for bodies to be buried with 24 hours of death, a
timeline that could not be met because the bodies are undergoing autopsies.
Harris said the military had obtained a fatwah, or religious ruling, from a
"reputable imam" that the 24-hour deadline could be waived when the cause of
death is under investigation.

The suicides were the latest in a string of actions that have recently renewed
global attention on the Guantanamo prison.

Last month, two detainees tried to kill themselves by taking overdoses of
prescription medicines they had secretly hoarded. On the same day, a group of
detainees ambushed guards in a separate part of the base.

Also last month, the United Nations Committee Against Torture called on the
United States to close Guantanamo. And Britain's attorney general, Peter
Goldsmith, said the prison "should close" because it is an "unacceptable" symbol
of injustice.

Yesterday's suicides occurred a day after Bush, speaking to reporters at Camp
David during a visit by the prime minister of Denmark, said his visitor had
raised the issue of Guantanamo with him. Bush said that he, too, would like
Guantanamo to be closed.

"We would like to end Guantanamo," Bush said. "We'd like it to be empty. And
we're now in the process of working with countries to repatriate people. But
there are some that, if put out on the streets, would create grave harm to
American citizens and other citizens of the world."

Bush said that such dangerous detainees "ought to be tried in courts here in the
United States." He said the administration was waiting on the Supreme Court to
decide whether such detainees could be tried by military commissions -- a
decision the court probably will make by the end of the month.

The Pentagon said it was postponing the scheduled military commission trial of
Binyam Muhammad, an Ethiopian detainee, originally scheduled for this week.
Muhammad is charged with conspiring with Osama bin Laden and other Al Qaeda
leaders to attack civilians and commit other crimes.

Within hours, the suicides prompted diplomatic outreach by officials of the
National Security Council, the State Department, and White House congressional
liaisons.

Snow said administration officials contacted the UN, the European Union, the
leaders of most European nations individually, the embassies of Mideast and
near-Mideast countries, and the International Committee of the Red Cross. Also
contacted were congressional leaders and the ranking members of the House and
Senate Foreign Relations and Intelligence committees.

Snow said the Pentagon and the White House were working to investigate the
matter and to determine whether all proper procedures were followed to prevent
suicides. He said there was no direct indication that the suicides were
connected to the killing last week of terrorist Abu Musab al-Zarqawi in a US air
strike in Iraq.

*


Los Angeles Times --

June 5, 2006

ARMY MANUAL TO SKIP GENEVA DETAINEE RULE

The Pentagon's move to omit a ban on prisoner humiliation from the basic guide
to soldier conduct faces strong State Dept. opposition.

By Julian E. Barnes

http://www.latimes.com/news/nationworld/nation/la-na-
torture5jun05,0,877738,full.story?coll=la-home-headlines

WASHINGTON -- The Pentagon has decided to omit from new detainee policies a key
tenet of the Geneva Convention that explicitly bans "humiliating and degrading
treatment," according to knowledgeable military officials, a step that would
mark a further, potentially permanent, shift away from strict adherence to
international human rights standards.

The decision could culminate a lengthy debate within the Defense Department but
will not become final until the Pentagon makes new guidelines public, a step
that has been delayed. However, the State Department fiercely opposes the
military's decision to exclude Geneva Convention protections and has been
pushing for the Pentagon and White House to reconsider, the Defense Department
officials acknowledged.

For more than a year, the Pentagon has been redrawing its policies on detainees,
and intends to issue a new Army Field Manual on interrogation, which, along with
accompanying directives, represents core instructions to U.S. soldiers
worldwide.

The process has been beset by debate and controversy, and the decision to omit
Geneva protections from a principal directive comes at a time of growing
worldwide criticism of U.S. detention practices and the conduct of American
forces in Iraq.

The directive on interrogation, a senior defense official said, is being
rewritten to create safeguards so that all detainees are treated humanely but
can still be questioned effectively.

President Bush's critics and supporters have debated whether it is possible to
prove a direct link between administration declarations that it will not be
bound by Geneva and events such as the abuses at Abu Ghraib or the killings of
Iraqi civilians last year in Haditha, allegedly by Marines.

But the exclusion of the Geneva provisions may make it more difficult for the
administration to portray such incidents as aberrations. And it undercuts
contentions that U.S. forces follow the strictest, most broadly accepted
standards when fighting wars.

"The rest of the world is completely convinced that we are busy torturing
people," said Oona A. Hathaway, an expert in international law at Yale Law
School. "Whether that is true or not, the fact we keep refusing to provide these
protections in our formal directives puts a lot of fuel on the fire."

The detainee directive was due to be released in late April along with the Army
Field Manual on interrogation. But objections from several senators on other
Field Manual issues forced a delay. The senators objected to provisions allowing
harsher interrogation techniques for those considered unlawful combatants, such
as suspected terrorists, as opposed to traditional prisoners of war.

The lawmakers say that differing standards of treatment allowed by the Field
Manual would violate a broadly supported anti-torture measure advanced by Sen.
John McCain (R-AZ). McCain last year pushed Congress to ban torture and cruel
treatment and to establish the Army Field Manual as the standard for treatment
of all detainees. Despite administration opposition, the measure passed and
became law.

For decades, it had been the official policy of the U.S. military to follow the
minimum standards for treating all detainees as laid out in the Geneva
Convention. But, in 2002, Bush suspended portions of the Geneva Convention for
captured Al Qaeda and Taliban fighters. Bush's order superseded military policy
at the time, touching off a wide debate over U.S. obligations under the Geneva
accord, a debate that intensified after reports of detainee abuses at Guantanamo
Bay, Cuba, and at Iraq's Abu Ghraib prison.

Among the directives being rewritten following Bush's 2002 order is one
governing U.S. detention operations. Military lawyers and other defense
officials wanted the redrawn version of the document known as DoD Directive
2310, to again embrace Common Article 3 of the Geneva Convention.

That provision -- known as a "common" article because it is part of each of the
four Geneva pacts approved in 1949 -- bans torture and cruel treatment. Unlike
other Geneva provisions, Article 3 covers all detainees -- whether they are held
as unlawful combatants or traditional prisoners of war. The protections for
detainees in Article 3 go beyond the McCain amendment by specifically
prohibiting humiliation, treatment that falls short of cruelty or torture.

The move to restore U.S. adherence to Article 3 was opposed by officials from
Vice President Dick Cheney's office and by the Pentagon's intelligence arm,
government sources said. David S. Addington, Cheney's chief of staff, and
Stephen A. Cambone, Defense undersecretary for intelligence, said it would
restrict the United States' ability to question detainees.

The Pentagon tried to satisfy some of the military lawyers' concerns by
including some protections of Article 3 in the new policy, most notably a ban on
inhumane treatment, but refused to embrace the actual Geneva standard in the
directive it planned to issue.

The military lawyers, known as judge advocates general, or JAGs, have concluded
that they will have to wait for a new administration before mounting another
push to link Pentagon policy to the standards of Geneva.

"The JAGs came to the conclusion that this was the best they can get," said one
participant familiar with the Defense Department debate who spoke on condition
of anonymity because of the protracted controversy. "But it was a massive
mistake to have withdrawn from Geneva. By backing away, you weaken the
proposition that this is the baseline provision that is binding to all nations."

Derek P. Jinks, an assistant professor at the University of Texas School of Law
and the author of a forthcoming book on Geneva called "The Rules of War," said
the decision to remove the Geneva reference from the directive showed the
administration still intended to push the envelope on interrogation.

"We are walking the line on the prohibition on cruel treatment," Jinks said.
"But are we really in search of the boundary between the cruel and the
acceptable?"

The military has long applied Article 3 to conflicts -- including civil wars --
using it as a minimum standard of conduct, even during peacekeeping operations.
The old version of the U.S. directive on detainees says the military will
"comply with the principles, spirit and intent" of the Geneva Convention.

But top Pentagon officials now believe common Article 3 creates an
"unintentional sanctuary" that could allow Al Qaeda members to keep information
from interrogators.

"As much as possible, the foundation is Common Article 3. That is the
foundation," the senior official said, speaking on condition of anonymity
because the new policies had not been made public. "But there are certain things
unlawful combatants are not entitled to."

Another defense official said that Article 3 prohibitions against "outrages upon
personal dignity, in particular humiliating and degrading treatment" could be
interpreted as banning well-honed interrogation techniques.

Many intelligence soldiers consider questioning the manhood of male prisoners to
be an effective and humane technique. Suggesting to a suspected insurgent that
he is "not man enough" to have set an improvised explosive device sometimes
elicits a full description of how they emplaced the bomb, soldiers say.

The Pentagon worries that if Article 3 were incorporated in the directive,
detainees could use it to argue in U.S. courts that such techniques violate
their personal dignity.

"Who is to say what is humiliating for Sheikh Abdullah or Sheikh Muhammad?" the
second official asked. "If you punch the buttons of a Muslim male, are you at
odds with the Geneva Convention?"

Military officials also worry that following Article 3 could force them to end
the practice of segregating prisoners. The military says that there is nothing
inhumane about putting detainees in solitary confinement, and that it allows
inmates to be questioned without coordinating their stories with others.

Human rights groups have their doubts, saying that isolating people for months
at a time leads to mental breakdowns.

"Sometimes these things sound benign, but there is a reason they have been
prohibited," said Jumana Musa, an advocacy director for Amnesty International.
"When you talk about putting people in isolation for eight months, 14 months, it
leads to mental degradation."

Jinks, of the University of Texas, contends that Article 3 does not prohibit
some of the things the military says it wants to do. "If the practice is humane,
there is nothing to worry about," he said.

Defense officials said the State Department and other agencies had argued that
adopting Article 3 would put the U.S. government on more solid "moral footing,"
and make U.S. policies easier to defend abroad.

Some State Department officials have told the Pentagon that incorporating Geneva
into the new directive would show American allies that the American military is
following "common standards" rather than making up its own rules. Department
officials declined to comment for this article about the directive or their
discussions with the Pentagon.

Common Article 3 was originally written to cover civil wars, when one side of
the conflict was not a state and therefore could not have signed the Geneva
Convention.

In his February 2002 order, Bush wrote that he determined that "Common Article 3
of Geneva does not apply to either Al Qaeda or Taliban detainees, because, among
other reasons, the relevant conflicts are international in scope and Common
Article 3 applies only to 'armed conflict not of an international character.' "

Some legal scholars say Bush's interpretation is far too narrow. Article 3 was
intended to apply to all wars as a sort of minimum set of standards, and that is
how Geneva is customarily interpreted, they say.

But top administration officials contend that after the Sept. 11 attacks, old
customs do not apply, especially to a fight against terrorists or insurgents who
never play by the rules.

"The overall thinking," said the participant familiar with the defense debate,
"is that they need the flexibility to apply cruel techniques if military
necessity requires it."

*


Boston Globe --

June 4, 2006

BAR GROUP WILL REVIEW BUSH'S LEGAL CHALLENGES

By Charlie Savage

http://www.boston.com/news/nation/washington/articles/2006/06/04/
bar_group_will_review_bushs_legal_challenges/

WASHINGTON -- The board of governors of the American Bar Association voted
unanimously yesterday to investigate whether President Bush has exceeded his
constitutional authority in reserving the right to ignore more than 750 laws
that have been enacted since he took office.

Meeting in New Orleans, the board of governors for the world's largest
association of legal professionals approved the creation of an all-star legal
panel with a number of members from both political parties.

They include a former federal appeals court chief judge, a former FBI director,
and several prominent scholars -- to evaluate Bush's assertions that he has the
power to ignore laws that conflict with his interpretation of the Constitution.

Bush has appended statements to new laws when he signs them, noting which
provisions he believes interfere with his powers.

Among the laws Bush has challenged are the ban on torturing detainees, oversight
provisions in the USA Patriot Act, and "whistle-blower" protections for federal
employees.

The challenges also have included safeguards against political interference in
taxpayer-funded research.

Bush has challenged more laws than all previous presidents combined.

The ABA's president, Michael Greco, said in an interview that he proposed the
task force because he believes the scope and aggressiveness of Bush's signing
statements may raise serious constitutional concerns. He said the ABA, which has
more than 400,000 members, has a duty to speak out about such legal issues to
the public, the courts, and Congress.

"The American Bar Association feels a very serious obligation to ensure that
when there are legal issues that affect the American people, the ABA adopts a
policy regarding such issues and then speaks out about it," Greco said. "In this
instance, the president's practice of attaching signing statements to laws
squarely presents a constitutional issue about the separation of powers among
the three branches."

The signing statements task force, which was recruited by Greco, a longtime
Boston lawyer who served on former Governor William F. Weld's Judicial
Nominating Council, includes several Republicans. Among them are Mickey Edwards,
a former Oklahoma representative from 1977 to 1993, and Bruce Fein, a Justice
Department official under President Reagan.

In interviews, several of the panel members said they were going into the
project with an open mind, but they expressed concerns about Bush's actions.

"I think one of the most critical issues in the country right now is the extent
to which the White House has tried to expand its powers and basically tried to
cut the legislative branch out of its own constitutionally equal role, and the
signing statements are a particularly egregious example of that," Edwards said.
"I've been doing a lot of speaking and writing about this, and when the ABA said
they were looking to take a position on signing statements, I said that's
serious because those people carry a lot of weight."

William Sessions, a retired federal judge who was the director of the FBI under
both Reagan and President George H.W. Bush, said he agreed to participate
because he believed that the signing statements raise a "serious problem" for
the American constitutional system.

"I think it's very important for the people of the United States to have trust
and reliance that the president is not going around the law," Sessions said.
"The importance of it speaks for itself."

Another member, Patricia Wald, is a retired chief judge of the US Court of
Appeals for the District of Columbia, appointed by President Carter.

She said she had monitored the use of signing statements by previous
administrations, but "the accelerated use in recent years presents a real
question about separation of powers and checks and balances."

Wald also said she was especially interested in studying how signing statements
affect the federal bureaucracy. As a judge, Wald said, she dealt with many cases
involving challenges to decisions made by administrative agencies. She said that
courts are deferential to such decisions because they are supposed to be made by
objective specialists in the agencies. But a heavy use of signing statements
could call that assumption into question.

"If Congress passes a law telling the people in the bureaucracy that 'this is
what you should do,' and the president signs it but attaches a statement saying
'I don't want you to do it,' how is that going to affect the motivation of the
bureaucracy?" she said.

The task force also includes several prominent legal scholars, such as Harold
Koh, dean of Yale Law School and a former official in the Reagan and Clinton
administrations; Kathleen Sullivan, former dean of Stanford Law School; Charles
Ogletree, a Harvard law professor; and Stephen Saltzburg, a professor at George
Washington University Law School.

Saltzburg -- who was a Justice Department official under Reagan and the first
president Bush, as well as a prosecutor in the Iran-Contra scandal -- said he
did not believe that signing statements were unconstitutional.

But, he said, frequent use of them could create bad perceptions about whether
the US government obeys the rule of law.

"The president can say anything he wants when he signs a bill," Saltzburg said.
"[But] what does it say about respect for the Constitution and for the notion of
checks and balances to have the president repeatedly claim the authority not to
obey statutes, which he is signing into law?"

Rounding out the panel are Mark Agrast, a former legislative counsel for
Representative William D. Delahunt, Democrat of Quincy, and Thomas Susman, who
worked in the Justice Department's Office of Legal Counsel under both Presidents
Johnson and Nixon, and was later counsel to the Senate Judiciary Committee.

Susman said he agreed to serve out of intellectual curiosity: "I think it's a
fascinating subject," he said. The task force is chaired by Neal Sonnett, a
former federal prosecutor. Earlier this year, Sonnett chaired a similar ABA
panel of bipartisan specialists who studied the legality of Bush's warrantless
spying program.

The earlier panel unanimously concluded that Bush should obey a law requiring
warrants for such surveillance, or he should ask Congress to change the law,
rather than simply ignoring it.

In February, the ABA House of Delegates voted overwhelmingly to endorse the
surveillance task force's recommendations, enabling Greco to testify about the
program before Congress.

Sonnett said he planned to run the task force in a similar fashion. The group
will discuss the issues in telephone conference calls. They will also divide up
issues to research for the report that will accompany any of their
recommendations, circulating drafts until they reach a consensus.

The task force will make its recommendation this summer, Greco said, and the
550-member ABA House of Delegates will vote on whether to adopt its findings at
a meeting in August.

The chairman of the Senate Judiciary Committee, Arlen Specter, Republican of
Pennsylvania, promised to hold a hearing on Bush's use of signing statements.

Specter pledged the action after an article in The Boston Globe described the
scope and details of Bush's assertions concerning the laws in them.

Greco and Sonnett also said the Globe's coverage of signing statements had
persuaded them to launch the task force.

* * *