=================================== NEWS DIGEST 2006.10.01 - 2006.12.31 =================================== New York Times -- December 31, 2006 FOR GUANTANAMO REVIEW BOARDS, LIMITS ABOUND By Tim Golden http://www.nytimes.com/2006/12/31/us/31gitmo.html?hp&ex=1167627600&en= dbf746d8d2442429&ei=5094&partner=homepage Published: December 31, 2006 GUANTANAMO BAY, Cuba - At one end of a converted trailer in the American military detention center here, a graying Pakistani businessman sat shackled before a review board of uniformed officers, pleading for his freedom. The prisoner had seen just a brief summary of what officials said was a thick dossier of intelligence linking him to Al Qaeda. He had not seen his own legal papers since they were taken away in an unrelated investigation. He has lawyers working on his behalf in Washington, London and Pakistan, but here his only assistance came from an Army lieutenant colonel, who stumbled as he read the prisoner’s handwritten statement. As the hearing concluded, the detainee, who cannot be identified publicly under military rules, had a question. He is a citizen of Pakistan, he noted. He was arrested on a business trip to Thailand. On what authority or charges was he even being held? "That question," a Marine colonel presiding over the panel answered, "is outside the limits of what this board is permitted to consider." Under a law passed by Congress and signed by President Bush in October, this double-wide trailer may be as close to a courtroom as most Guantanamo prisoners ever get. The law prohibits them from challenging their detention or treatment by writs of habeas corpus in the federal courts. Instead, they may only petition a single federal appeals court to examine whether the review boards followed the military’s own procedures in reviewing their status as "enemy combatants." But an examination of the Guantanamo review boards by The New York Times suggests that they have often fallen short, not only as a source of due process for the hundreds of men held here, but also as a forum to resolve questions about what the detainees have done and the threats they may pose. Some limitations have long been evident. The prisoners have no right to a lawyer, or to see classified evidence, or even to know the identity of their accusers. What has been less visible, however, is what many officials describe as a continuing shortage of information about many detainees, including some who have been held on sketchy or disputed intelligence. Behind the hearings that journalists are allowed to observe is a system that has at times been as long on government infighting and diplomatic maneuvering as it has been short on hard evidence. The result, current and former officials acknowledged, is that some detainees have been held for years on less compelling information, while a growing number of others for whom there was thought to be stronger evidence of militant activities have been released under secret arrangements between Washington and their home governments. Military officials emphasize that the boards are an administrative forum and were never intended to replicate judicial standards of fairness. But they say the hearings offer prisoners a viable opportunity to rebut the government’s evidence. "At the end of the day, it’s about giving the detainee the flexibility and freedom to present his case," said Capt. Philip L. Waddingham, a former Navy pilot who oversees the operations of the panels at Guantanamo. Administration officials also emphasize that the reviews are more rigorous than the battlefield tribunals that have traditionally been used to determine the status of wartime prisoners under the 1949 Geneva Conventions. But the Geneva tribunals were established to answer questions about the identities of soldiers and spies from regular armies. Sorting through the identities and past actions of suspected participants in a shadowy global terrorist network, military officials said, has proved far more complex. To date, 377 Guantanamo detainees, nearly half of the 773 who have been held there, have been released or transferred to other governments. Of those, about 150 have been repatriated through the review process since mid-2004, officials said. The administration’s push to reduce the Guantanamo population is more evident in another statistic. The final arbiter of prisoner releases, Deputy Defense Secretary Gordon R. England, has overruled the panels’ recommendations in more than 15 percent of the 237 cases he has decided so far this year, officials said. In virtually all of those, the boards had recommended continued detention. Still, a recent study of the review process found that detainees arguing their innocence were routinely denied witnesses they tried to call, even when the witnesses were other prisoners at Guantanamo. Lawyers for the detainees complain that the government has made almost no effort to have the panels consider information they have gathered and has often blocked their attempts to learn the accusations against their clients. "We have tried again and again to have a say in the process," said Barbara Olshansky, a lawyer who has coordinated much of the work of the detainees’ lawyers for the Center for Constitutional Rights. "But we learned pretty early on that these were kangaroo courts." Many of the detainees appear to have given up on the reviews as a way to win their freedom. In the latest round of annual hearings, which were completed this month, only 18 percent of the prisoners chose to attend. EVOLUTION OF THE HEARINGS The review system at Guantanamo began operating in July 2004, more than two years after most detainees were imprisoned there. Officials said it was intended in part to deflect criticism that the prison had become a legal black hole. They also hoped it would resolve what had become a contentious struggle among national security agencies over which prisoners to hold and which to free. Even before Mr. Bush decided in February 2002 that the United States would not observe the Geneva Conventions in fighting terrorism, Donald H. Rumsfeld, then the defense secretary, dismissed the idea of Geneva-style hearings for the detainees, maintaining that they would never be entitled to the prisoner-of-war status that such tribunals could grant them in other conflicts. "There is no ambiguity in this case," Mr. Rumsfeld said. Yet intelligence officers at Guantanamo found ambiguity everywhere. Many of the detainees had been captured by Afghan militias, Pakistani border guards and other surrogates, and some had been turned in for bounties, intelligence officials said. Information about their identities and actions was often vague and secondhand. Physical evidence, if any existed, was sometimes lost before reaching Cuba. Still, the detainees who were held on the weakest information tended not to be a priority for either intelligence officers or the military’s criminal investigators. "It wasn’t the job of the intelligence community to verify their guilt or innocence," said Col. Brittain P. Mallow, a retired Army investigator who led a task force that gathered evidence for war crimes tribunals that are expected to prosecute about 50 to 70 of the remaining 396 detainees. Faced with growing international criticism, the Bush administration moved in May 2004 to set up a kind of annual parole system, called Administrative Review Boards, to weigh each detainee’s continuing threat and intelligence value. But before those hearings began, the Supreme Court called that June for a one-time review of all Guantanamo detainees using the sort of panels called for by Army regulations -- and by the Geneva Conventions. Those first panels, called Combatant Status Review Tribunals, or C.S.R.T.’s in military parlance, required three military officers to decide cases by majority vote, based on a "preponderance of the evidence." The boards were allowed to consider a wide range of intelligence, including statements obtained by coercion. Midlevel officers were assigned to help the detainees prepare for their hearings. Military lawyers were not permitted to serve in that role, however, because of concern that limitations on that assistance might open the lawyers to charges of violating professional ethics rules. Lawyers at the Defense and Justice Departments had another worry: that detainees found to be "not enemy combatants" might sue the government for wrongful imprisonment. Partly for that reason, officials said, the review office was instructed to use the phrase "no longer enemy combatants." By the time the C.S.R.T. reviews got under way, intelligence agencies had confirmed that half a dozen detainees released from Guantanamo were fighting for the Taliban in Afghanistan. Such risks were raised frequently in government debates. "It was sort of a mantra in the system: ‘You have got to make sure that you don’t release any of the wrong people,’ " recalled Charles W. Moore Jr., a now- retired vice admiral who set up the review apparatus under Mr. England. REVIEWING DECISIONS The early results of the hearings, in which officials said a surprising number of detainees were found not to be enemy combatants, only heightened the unease. Internal critics, including the Defense Intelligence Agency, the Central Intelligence Agency and the Special Operations branch of the Pentagon, complained heatedly that the boards did not properly understand the intelligence they were assessing, said current and former officials who participated in the debates. The critics were later allowed to provide further training to the panels. In the first round of annual reviews after the C.S.R.T.’s, officers with military intelligence backgrounds also took over the role, previously assigned to lawyers, of vetting evidence and presenting the government’s case. While some officials perceived an undue influence over the panels from intelligence agencies and their allies, others said those critics were mostly beaten back. "The intelligence community wanted to derail the C.S.R.T. process and dictate the decisions, and that didn’t happen," said one former senior official, who, like several others, would discuss the policy deliberations only on the condition of anonymity. According to documents and interviews, the Pentagon office in charge of the reviews ordered the repetition of some C.S.R.T. boards that recommended the release of detainees. Defense Department officials would not discuss those cases in detail. The largest number of repeated hearings appears to have involved some of the 22 Muslim detainees from western China who were part of the Uighur (pronounced WEE- gur) ethnic minority. The Uighurs’ sworn enemy was not the United States but the Communist government of China, which had long oppressed their people. The military accused the detainees of belonging to a separatist group that the Chinese authorities had persuaded Washington to list as a terrorist organization, but some experts on the region disputed that characterization of the group and the detainees denied any link to it. The State Department, fearful that the men would be tortured if they were sent back to China, had already begun trying to place the Uighurs as refugees in Europe when their cases came for review at Guantanamo, officials said. "We were shocked that they even sent those guys before the C.S.R.T.’s," said one former national security official who worked on the matter. "They had already been identified for release." Because the Uighurs told very similar stories, Pentagon officials were confounded when at least five of them were determined not to be enemy combatants and the rest properly held, officials said. At least several of the Uighurs, including some found not to be enemy combatants, had their cases reviewed again, officials said. They described the impetus for doing so as "quality control." But available documents show that at least one of the detainees, whose case was reviewed again, was finally found to be an enemy combatant. Five Uighur detainees were finally sent to Albania as refugees in May. SOME AREN’T REVISITED Yet other cases in which questions arose were not revisited. One of those involved a Sudanese man, Adel Hassan Hamad, who was seized in Pakistan in 2002. According to the unclassified summary of allegations in his first hearing, Mr. Hamad, who is now about 48, had worked for two nongovernmental organizations, or N.G.O.’s, with ties to Al Qaeda and had come into contact "with persons who had positions of responsibility in Al Qaeda." But the military presented no unclassified information that Mr. Hamad was anything but a hospital administrator and former teacher, or that he knew of his employers’ purported ties. As with all such cases, it is not possible to judge independently the evidence against Mr. Hamad because part of it is secret. But while two panel members found him to be rightfully detained, a third officer, an Army lawyer whose name was blacked out in the declassified document, objected strongly. Even if the unclassified allegations were true -- and Mr. Hamad said he knew nothing about Qaeda links -- "a mere association with Al Qaeda does not qualify as a basis for enemy combatant status," the lawyer wrote in a formal dissent. The officer, who also studied the secret evidence, said the military was declaring Mr. Hamad an enemy combatant because some parts of the organization he worked for had allegedly supported "terrorist ideals and causes." "To reach such a conclusion would provide for unconscionable results," he wrote. It might mean, he added, that "all physicians, nurses and aid workers employed by the alleged terrorist-connected N.G.O.’s would also be declared enemy combatants." The panel’s 2-to-1 decision was reviewed by two other military lawyers, each of whom tersely upheld its "legal sufficiency." One of them, Cmdr. James R. Crisfield Jr. of the Navy, described the Army officer’s dissent as "articulate and thoughtful," but emphasized the review panels’ modest standard of proof. "Given the low evidentiary hurdle posed by a preponderance-of-evidence standard and the rebuttable presumption of genuineness and accuracy that attaches to government evidence, I believe that the test is satisfied in this case," Commander Crisfield wrote. Despite the limited evidence against Mr. Hamad, documents from his first annual review show little further substance to the military’s accusations. They noted that a brother of the Sept. 11 plotter Khalid Shaikh Mohammed was once a manager at one of the charities where Mr. Hamad worked. But the military was now asserting only that the group "may be affiliated with Osama bin Laden and Al Qaeda operations." Two federal public defenders in Portland, Ore., who took Mr. Hamad’s case last year said they had located about a dozen witnesses who corroborated parts of his account. Although much of that information has been filed as part of a habeas case in federal court, there is no sign yet that it has made any difference for Mr. Hamad. "I don’t think there was any substantive attempt by the military to find witnesses who could get to the bottom of this," said one of the lawyers, Patrick J. Ehlers. "There were hundreds of other people out there who worked for these groups. None of those people were arrested, and none of them were questioned." CONSTRAINTS ON THE SYSTEM Several officials who helped establish the review panels said they tried to create mechanisms that would let detainees present witnesses and evidence and allow the panels to gather new information. But some officials said those ambitions, however sincere, had often been undone by the speed of most reviews -- often conducted in just hours -- and the low priority assigned to the collection of information on the detainees by intelligence agencies and foreign governments. This year, three panels at Guantanamo handled as many as 13 or 14 cases a week, they said. "There are real time constraints and real resource constraints," one retired military officer said. "They usually ended up without anything new, so the boards were just dusting off old files and trying to have a fair and impartial body look at that old information." Captain Waddingham, the chief of the review office at Guantanamo, said the boards followed the recommendations of military intelligence officials 95 percent of the time. But both he and the overall head of the review program, Frank Sweigart, insisted that the panels were able to get new information when they needed it. "We are always looking for supporting facts, and if we can’t find them, we ask for them," Mr. Sweigart, a retired Navy captain, said in an interview. "There really is a lot of information out there for a number of them -- especially for the detainees who are there today." But other current and former officials described a system that was frequently inefficient in collecting information that might determine a prisoner’s fate. Some officials said military and civilian intelligence agencies gave little priority to requests for information from the panels, particularly when they involved time-consuming inquiries overseas. And though officials including Mr. England, the deputy defense secretary, have urged foreign governments to develop and pass on their own information about detainees from their countries, few of them did. Officials said some governments, including those of Kuwait and Bahrain, had provided extensive files on their detainees. Partly out of diplomatic considerations, they said, the State Department pressed Mr. England to move up review hearings for at least several detainees from those two countries and, ultimately, to overrule review panel decisions and repatriate them. On Nov. 3 last year, the Pentagon sent two Kuwaitis and three Bahrainis home from Guantanamo on Mr. England’s approval, despite what two officials said had been negative rulings by the review panels in at least some of those cases. But other releases are harder to explain. In one such case, lawyers for Nazar Chaman Gul, an Afghan prisoner, said they were mystified to learn of the repatriation on Dec. 16 of another Afghan, Mohammad Akhtiar, after his annual review. Mr. Akhtiar had been accused of launching a rocket attack on an American military base in Afghanistan in early 2003. Declassified transcripts of Mr. Gul’s hearings suggest that a major piece of incriminating evidence against him was that he was captured with Mr. Akhtiar at his home. (Another problem seemed to be that he was confused with another Afghan with the same name, who is also being held at Guantanamo.) "Gul’s greatest sin seemed to be his association with Mohammad Akhtiar," said a lawyer for Mr. Gul, Amy Baggio. "Unfathomably, Akhtiar is now home with his family while Nazar Gul is going on his fourth year in custody." Lawyers say that detainees who have tried to use the review system to challenge the accusations against them have often been frustrated. According to a recent study of 102 unclassified C.S.R.T. files by the Seton Hall University law school, the military denied all requests by the detainees for witnesses who were not also being held at Guantanamo and denied requests for detainee witnesses 74 percent of the time. Although a growing number of lawyers have begun to conduct their own investigations into accusations against their clients, a former military intelligence officer who has presided over dozens of review boards was dismissive of those contributions. "As far as what the habeas lawyers have to say, for the most part it wouldn’t factor in because they have made themselves not credible," said the officer, a Marine colonel who suggested that the lawyers took detainees’ claims of innocence at face value. The lawyers respond that the obstacles to their input in the process raise questions about the military’s desire to learn everything it can about the detainees. More than a week after the hearing for the Pakistani businessman accused of ties to Al Qaeda, a Washington lawyer who had been trying to help him told a reporter that he had not even known the session had taken place. "There is no hint of any kind of due process in this," said the lawyer, Gaillard T. Hunt. "He’s got no right to an investigation. But substantively, it really doesn’t matter, because they can always just say they have this classified information that he can’t see." * New York Times -- December 19, 2006 US INQUIRY FALTERS ON CIVILIANS ACCUSED OF ABUSING DETAINEES By David Johnston http://www.nytimes.com/2006/12/19/washington/19detain.html By DAVID JOHNSTON WASHINGTON, Dec. 18 -- A Justice Department team responsible for investigating accusations that civilian government employees had abused detainees has decided against prosecution in most of the nearly 20 cases referred in the last two years by the Pentagon and the Central Intelligence Agency, said lawyers who have been officially briefed on the effort. The prosecution team, which was established in June 2004 at the United States attorney’s office in Alexandria, Va., has not brought a single indictment and has been plagued by problems. The team has been unable to collect forensic evidence or find witnesses needed to bring indictments out of war-ravaged areas of Iraq and Afghanistan. In some cases, the unit has been stymied by the absence of facts in the referrals, the lawyers said. A few investigations remain open, although the lawyers declined to be specific about how many cases fell in that category. The team was set up in the aftermath of the uproar over abuses at the Abu Ghraib prison in Iraq; it was to investigate accusations that detainees had been mistreated by civilian personnel. Civilians have worked in large numbers in Afghanistan and Iraq, among them C.I.A. officers, Americans hired by companies under contract with the military as interrogators and translators, and local residents temporarily employed as support workers. The military justice system, meanwhile, has won convictions against a number of soldiers in cases from Abu Ghraib and elsewhere in Iraq and Afghanistan. In some cases, the Justice Department has declined to prosecute in cases involving the same events in which military lawyers have brought charges against members of the armed services. Lawyers who have been briefed on the work of the Justice Department unit, initially made up of six federal prosecutors, said problems with evidence and the fragmentary nature of some of the accusations had proved so daunting that prosecutors never even reached the point of grappling with difficult legal issues involving permissive interrogation guidelines. These guidelines, most of them based on Justice Department legal opinions, granted government officials the authority to use harsh tactics in questioning detainees. In one case, Justice Department prosecutors investigated an accusation that a civilian translator working under a contract with the military had sexually assaulted a detainee at Abu Ghraib prison. But when investigators arrived in Iraq, the detainee and witnesses had been released in Baghdad and could not be found. In another case, a referral cited abusive conduct by a government employee but did not include the names of witnesses or victims or where they lived. In other cases, investigators began their inquiries long after the alleged crimes occurred, when any forensic evidence a crime scene might have provided had been lost. One of the investigations that remains open involves the November 2003 death of Manadel al-Jamadi, who died at Abu Ghraib after a brutal interrogation in one of the most widely publicized abuse cases in Iraq. Mr. Jamadi was in the custody of a C.I.A. officer and a contract interpreter at the time of his death, although he had first been captured by a team of Navy Seals. Justice Department prosecutors who reviewed the case advised superiors that neither of the civilians could be charged. They concluded that Mr. Jamadi probably sustained severe injuries when he was in military custody before he was turned over to the intelligence agency and that therefore the civilians could not be prosecuted for his death. Frank Spinner, who represented some of the Navy Seals who have faced disciplinary proceedings, denied that military personnel were responsible for Mr. Jamadi’s death. "He walked into Abu Ghraib, into the custody of the C.I.A.," Mr. Spinner said. Justice Department officials have never publicly disclosed that the prosecution team had terminated most of its cases or that it encountered serious evidentiary problems -- an assertion likely to be met with skepticism by lawmakers and human rights activists who have been critical of the department’s unwillingness to discuss the abuse cases. In a letter sent Monday to Attorney General Alberto R. Gonzales, Senator Richard J. Durbin, Democrat of Illinois and a member of the Judiciary Committee, urged the Justice Department to be more forthcoming. "Providing more public information about the Justice Department’s handling of detainee abuse cases would be an important step in restoring the confidence of the American people in their government and would send a powerful message to the rest of the world about the role of the rule of law in American society," Mr. Durbin’s letter said. Hina Shamsi, senior counsel at Human Rights First, a group based in New York, said: "Secrecy itself invites abuse. Investigations shrouded in secrecy invite immunity for abuse. Congress needs to take a hard look at what happened, and why, and how to keep the agency accountable." Spokesmen for the Pentagon and the C.I.A. declined to comment on specifics of the referrals, but both said their agencies took seriously accusations of detainee abuse. The C.I.A. has been advised that most of the cases have been closed, an intelligence official said. The referrals had stirred resentment within the agency, where some officers believed the actions of agency personnel did not warrant criminal investigation. James Rybicki, a spokesman for the United States attorney’s office in Alexandria, declined to comment on the details of the cases or their status. "This office continues the independent investigation of the cases referred to us," Mr. Rybicki said. "Because our review is ongoing, however, we cannot make any further comment at this time." In a letter earlier this year responding to questions posed by Mr. Durbin, the Justice Department said the prosecution unit had received 19 separate accusations of abuse in Iraq and Afghanistan. Eleven referrals of possible wrongdoing came from the Pentagon, and eight from an unspecified agency later identified as the Central Intelligence Agency. The Department reported that it had dropped two of the cases on grounds of insufficient evidence. Although the team has brought no charges, one civilian case has been prosecuted by federal prosecutors in North Carolina, resulting in a felony assault conviction against David A. Passaro, a C.I.A. contract employee. The charges stemmed from an interrogation in June 2003 at an American base in Afghanistan that resulted in the death of an Afghan, Abdul Wali. Even that case caused problems for prosecutors, one of the lawyers said. Investigators were unable to retrieve the body of Mr. Wali from where he was buried to determine precisely the cause of his death. As a result, Mr. Passaro was not charged with Mr. Wali’s death, but with beating him with a flashlight. While the details about most cases are not known, one of the closed cases is believed to have involved the C.I.A. contract personnel who were at times present during the interrogation of Maj. Gen. Abed Hamed Mowhoush, an Iraqi who died after a rough interrogation in November 2003. General Mowhoush died of "asphyxiation due to smothering and chest compression," according to an autopsy report, after he was severely clubbed, beaten with fists and shoved into a sleeping bag. In the Jamadi and Mowhoush cases, military prosecutors brought charges against several members of the armed forces. But they had no jurisdiction over civilians working alongside their military counterparts. A court-martial of Lt. Andrew Ledford, the leader of the Navy Seal unit that captured Mr. Jamadi, ended with an acquittal. A court-martial in the Mowhoush case concluded with a conviction of Chief Warrant Officer Lewis Welshofer Jr., who was fined $6,000 and confined for 60 days to his barracks. Mr. Spinner, a defense lawyer who has specialized in military cases and who represented Lieutenant Ledford and Chief Warrant Officer Welshofer, said the Jamadi case in particular had raised questions about the role of the C.I.A. "The evidence was clear," Mr. Spinner said. "Let’s have equal justice. If you’re going to try Ledford and try the Seals, then you have to go after the C.I.A. guys." From the start, there were doubts among some Democrats in Congress that the Justice Department could mount a serious prosecutorial effort against intelligence officers and other civilians accused of violence against terror suspects. It was the Justice Department, through a series of legal opinions and memoranda, that played a crucial role in erecting the legal framework intended to give C.I.A. officers the widest possible latitude in interrogating terror suspects and virtually indemnify them from legal liability. * Washington Post -- December 5, 2006 LAWYERS DEMAND RELEASE OF CHINESE MUSLIMS Court Documents Allege Lengthy Detainment at Guantanamo Is Part of Deal With Beijing By Josh White http://www.washingtonpost.com/wp-dyn/content/ article/2006/12/04/AR2006120401191.html Attorneys for a group of Chinese Muslims held for nearly five years in the U.S. military prison at Guantanamo Bay, Cuba, filed suit yesterday, asking that the men be released immediately and alleging that they have been held as part of a political deal between the United States and China. Citing new laws that allow detainees to challenge their status as "enemy combatants," the lawyers argue that their seven clients -- ethnic Uighurs (pronounced wee-gurs) -- have never taken up arms against the United States or its allies. They contend that the men have been labeled wrongfully as terrorist suspects because they oppose the Communist Chinese government. In a 58-page filing at the Court of Appeals for the District of Columbia Circuit, the lawyers argue that the Uighurs have been held since early 2002 as a way to win Chinese acquiescence for the U.S. invasion of Iraq. The lawyers -- Sabin Willett and Susan Baker Manning -- allege in the court documents that their clients' detention was one of several demands the Chinese government solicited in mid-2002 as the United States was seeking global support for toppling Saddam Hussein. U.S. officials labeled the East Turkistan Islamic Movement (ETIM) -- a group that includes Uighur separatists who want their own nation in western China -- a terrorist organization in August 2002 after diplomatic discussions with China about Iraq, the lawyers allege. "In the crisis atmosphere of the time, the interests of a few dozen refugees paled beside the urgency of the Administration's war plans," the lawsuit said. "The Iraq deal sealed the fate of the seven petitioners here. More than four years have passed. Long-discarded pawns in a diplomatic match between superpowers, petitioners today remain illegally imprisoned at Guantanamo." Former State Department officials acknowledged in interviews that they negotiated with China about placing ETIM and another group on a list of known terrorist organizations, and that ETIM was added after intelligence reports indicated the group had killed innocent people. The officials said, however, that labeling the group as terrorists had no effect on Uighurs already in U.S. custody, who were believed to be cooperating with the Taliban and al-Qaeda near Tora Bora, Afghanistan. Then-Deputy Secretary of State Richard L. Armitage met with Chinese officials in Beijing in late August 2002 and discussed the Iraq situation with them. He said at the time that ETIM was placed on the foreign terrorist list after months of discussions with China. He also said he made clear that China needed to respect the minority Uighur population. "They had been after us to put ETIM on the list," Armitage said in a recent interview. He said the decision did not have anything to do with winning China's tacit approval on the Iraq invasion. "But at the time, we didn't know when we were going to invade Iraq. It was done in response to information gathered by the intelligence group." The Uighurs have been a diplomatic headache for the United States. U.S. officials working to negotiate the release of five other Uighurs held at Guantanamo who were determined not to be a threat to U.S. interests refused to return them to China out of concern they could be tortured or killed. More than two dozen countries declined requests to take them in, and the United States has been unwilling to allow them to come here. Earlier this year, those five Uighurs were released to a U.N. compound in Albania, where they remain virtual prisoners. Pierre-Richard Prosper, who formerly led U.S. negotiations with other countries over Guantanamo detainees, said that China wanted custody of the Uighurs but that the United States staved off Beijing because of human rights concerns. "We tried for many months to reach an understanding with China regarding the fate of the Uighurs and were unable to do so," he said. More than a dozen Uighurs are still in Guantanamo. U.S. officials have determined them to be enemy combatants because of their participation in an alleged terrorist training camp in Afghanistan, which all fled when the United States started bombing the area after the Sept. 11, 2001, attacks. The Uighurs have told military court officials they were not allied with the Taliban and are sympathetic to the United States, which they view as a liberator. They said they were living in a small community in Afghanistan after fleeing oppression in China. According to military tribunal records and court filings, the men were lured to a mosque in Pakistan, where they were arrested and later turned over to Pakistani authorities. Willett said he believes the men were sold to the United States for sizable bounties and were sent to Guantanamo along with many other detainees captured there. The lawyers challenge the way the Uighurs were determined to be enemy combatants, arguing that their encampment in Afghanistan did not make them a party to hostilities. The Uighurs have said the United States allowed a Chinese delegation to visit and interrogate them after their capture, and that the Chinese threatened them. A U.S. official confirmed that the Chinese were allowed to question the Uighurs. "It is amazing to me that the U.S. has agreed to, in effect, hold political prisoners for China in exchange for anything," Manning said. "That goes against everything that we, I thought, stood for in this country." [ Staff researcher Julie Tate contributed to this report. ] * Washington Post -- November 4, 2006 US SEEKS SILENCE ON CIA PRISONS Court Is Asked to Bar Detainees From Talking About Interrogations By Carol D. Leonnig and Eric Rich http://www.washingtonpost.com/wp-dyn/content/ article/2006/11/03/AR2006110301793.html The Bush administration has told a federal judge that terrorism suspects held in secret CIA prisons should not be allowed to reveal details of the "alternative interrogation methods" that their captors used to get them to talk. The government says in new court filings that those interrogation methods are now among the nation's most sensitive national security secrets and that their release -- even to the detainees' own attorneys -- "could reasonably be expected to cause extremely grave damage." Terrorists could use the information to train in counter-interrogation techniques and foil government efforts to elicit information about their methods and plots, according to government documents submitted to U.S. District Judge Reggie B. Walton on Oct. 26. The battle over legal rights for terrorism suspects detained for years in CIA prisons centers on Majid Khan, a 26-year-old former Catonsville resident who was one of 14 high-value detainees transferred in September from the "black" sites to the U.S. military prison at Guantanamo Bay, Cuba. A lawyer with the Center for Constitutional Rights, which represents many detainees at Guantanamo, is seeking emergency access to him. The government, in trying to block lawyers' access to the 14 detainees, effectively asserts that the detainees' experiences are a secret that should never be shared with the public. Because Khan "was detained by CIA in this program, he may have come into possession of information, including locations of detention, conditions of detention, and alternative interrogation techniques that is classified at the TOP SECRET//SCI level," an affidavit from CIA Information Review Officer Marilyn A. Dorn states, using the acronym for "sensitive compartmented information." Gitanjali Gutierrez, an attorney for Khan's family, responded in a court document yesterday that there is no evidence that Khan had top-secret information. "Rather," she said, "the executive is attempting to misuse its classification authority . . . to conceal illegal or embarrassing executive conduct." Joseph Margulies, a Northwestern University law professor who has represented several detainees at Guantanamo, said the prisoners "can't even say what our government did to these guys to elicit the statements that are the basis for them being held. Kafka-esque doesn't do it justice. This is 'Alice in Wonderland.' " Kathleen Blomquist, a Justice Department spokeswoman, said yesterday that details of the CIA program must be protected from disclosure. She said the lawyer's proposal for talking with Khan "is inadequate to protect unique and potentially highly classified information that is vital to our country's ability to fight terrorism." Government lawyers also argue in court papers that detainees such as Khan previously held in CIA sites have no automatic right to speak to lawyers because the new Military Commissions Act, signed by President Bush last month, stripped them of access to U.S. courts. That law established separate military trials for terrorism suspects. The U.S. Court of Appeals for the District of Columbia Circuit is considering whether Guantanamo detainees have the right to challenge their imprisonment in U.S. courts. The government urged Walton to defer any decision on access to lawyers until the higher court rules. The government filing expresses concern that detainee attorneys will provide their clients with information about the outside world and relay information about detainees to others. In an affidavit, Guantanamo's staff judge advocate, Cmdr. Patrick M. McCarthy, said that in one case a detainee's attorney took questions from a BBC reporter with him into a meeting with a detainee at the camp. Such indirect interviews are "inconsistent with the purpose of counsel access" at the prison, McCarthy wrote. Dorn said in the court papers that for lawyers to speak to former CIA detainees under the security protocol used for other Guantanamo detainees "poses an unacceptable risk of disclosure." But detainee attorneys said they have followed the protocol to the letter, and none has been accused of releasing information without government clearance. Captives who have spent time in the secret prisons, and their advocates, have said the detainees were sometimes treated harshly with techniques that included "waterboarding," which simulates drowning. Bush has declared that the administration will not tolerate the use of torture but has pressed to retain the use of unspecified "alternative" interrogation methods. The government argues that once rules are set for the new military commissions, the high-value detainees will have military lawyers and "unprecedented" rights to challenge charges against them in that venue. U.S. officials say Khan, a Pakistani national who lived in the United States for seven years, took orders from Khalid Sheik Mohammed, the man accused of orchestrating the Sept. 11, 2001, attacks. Mohammed allegedly asked Khan to research poisoning U.S. reservoirs and considered him for an operation to assassinate the Pakistani president. In a separate court document filed last night, Khan's attorneys offered declarations from Khaled al-Masri, a released detainee who said he was held with Khan in a dingy CIA prison called "the salt pit" in Afghanistan. There, prisoners slept on the floor, wore diapers and were given tainted water that made them vomit, Masri said. American interrogators treated him roughly, he said, and told him he "was in a land where there were no laws." Khan's family did not learn of his whereabouts until Bush announced his transfer in September, more than three years after he was seized in Pakistan. The family said Khan was staying with a brother in Karachi, Pakistan, in March 2003 when men, who were not in uniform, burst into the apartment late one night and put hoods over the heads of Khan, his brother Mohammad and his brother's wife. The couple's 1-month-old son was also seized. Another brother, Mahmood Khan, who has lived in the United States since 1989, said in an interview this week that the four were hustled into police vehicles and taken to an undisclosed location, where they were separated and held in windowless rooms. His sister-in-law and her baby remained together, he said. According to Mahmood, Mohammad said they were questioned repeatedly by men who identified themselves as members of Pakistan's intelligence service and others who identified themselves as U.S. officials. Mohammad's wife was released after seven days, and he was released after three months, without charge. He was left on a street corner without explanation, Mahmood said. Periodically, he said, people who identified themselves as Pakistani officials contacted Mohammad and assured him that his brother would soon be released and that they ought not contact a lawyer or speak with the news media. "We had no way of knowing who had him or where he was," Mahmood Khan said this week at the family home outside Baltimore. He said they complied with the requests because they believed anything else could delay his brother's release. In Maryland, Khan's family was under constant FBI surveillance from the moment of his arrest, his brother said. The FBI raided their house the day after the arrest, removing computer equipment, papers and videos. Each family member was questioned extensively and shown photographs of terrorism suspects that Mahmood Khan said none of them recognized. For much of the next year, he said, they were followed everywhere. "Pretty much we were scared," he said. "We live in this country. We have everything here." [ Staff researcher Julie Tate contributed to this report. ] * New York Times -- November 4, 2006 GERMAN DETAINEE QUESTIONS HIS COUNTRY’S ROLE By Mark Landler and Souad Mekhennet http://www.nytimes.com/2006/11/04/world/europe/04germany.html BREMEN, Germany, Nov. 2 -- During the four and a half years he languished in American prison camps in Afghanistan and Guantanamo Bay, Cuba, Murat Kurnaz claims to have been beaten, locked alone for months, dunked in water, sexually humiliated and hung from the ceiling by chains -- all of which the Pentagon denies. But the Americans eventually decided not to hold him any longer on suspicion of being a terrorist with ties to Al Qaeda. In late August he was finally released, a result of negotiations between the United States and Germany, where he was born 24 years ago into a Turkish family. Now back home in Bremen, and recently cleared by his own government, he is struggling to make sense of his odyssey. He blames not just his American captors but also the German government, which according to internal intelligence documents turned down an offer by the United States to send him home in late 2002. "The first time, the Americans kept me in Guantanamo; the second time, the Germans did," Mr. Kurnaz said in an interview, speaking English, which he learned during his captivity. "They did the same as the American government." Mr. Kurnaz’s tale of wrongful imprisonment reinforces the worst suspicions of many Europeans about the detention of suspected terrorists at Guantanamo Bay. The camp’s existence is perhaps the main obstacle to healing the rift between United States and Europe that was opened by the Iraq war, and magnified by diverging approaches to civil liberties. Yet his account pointedly calls into question Germany’s role, suggesting that the Germans decided to abandon him because he was a Turkish citizen, though born and living in Germany, and that they even contributed to his ordeal. His case has ignited a political firestorm in Germany, raising questions about whether this country sacrificed its principles in supporting the American-led campaign against terrorism. Mr. Kurnaz says his troubles stemmed from a poorly timed visit to Pakistan in October 2001, a month after the attacks on the World Trade Center and the Pentagon. Within weeks he was pulled off a bus in Pakistan, and by January 2002 he was sent to an American prison in Kandahar, in southern Afghanistan. While he was there, he said, German soldiers slammed his head on the ground and kicked him, to the laughter of American soldiers watching. Germany’s Defense Ministry said there was no evidence its soldiers had mistreated Mr. Kurnaz. The ministry at first denied its soldiers were even active in southern Afghanistan, but later conceded they had been there and had contact with Mr. Kurnaz. "I was born in Germany; I live in Germany," he said. "It’s hard to see something like that from Germans, to be treated like that by Germans. You think the government of your country will help you." A Pentagon spokesman, Lt. Cmdr. Chito Peppler, said Mr. Kurnaz had been treated humanely in Afghanistan and Cuba. He was allowed to exercise, as well as to send and receive letters. Commander Peppler said Mr. Kurnaz was released after lengthy discussions with the German government, "when the United States determined that conditions were appropriate for his transfer." A stocky man with flowing reddish brown hair and a long, bushy beard, Mr. Kurnaz described his experience in a matter-of-fact tone, leavened with flashes of mordant humor. Only when he talked about Germany did his speech become halting, the words measured out painfully. "The soldier grabbed my hair and pulled back my head," Mr. Kurnaz recalled. "He asked, ‘Do you know who we are? We are the German force, K.S.K.’ " (The initials refer to an elite army unit.) "He hit my head, and then either he or his friend kicked me, and everyone laughed." Mr. Kurnaz’s years in prison and his charge of mistreatment by two governments have created an uproar in Germany. "In this case, it was the moral obligation of Germany to do something," said Cem Ozdemir, a German member of the European Parliament, which is investigating the detention of suspected terrorists. "They chose to close their eyes, and didn’t do anything," said Mr. Ozdemir, who is of Turkish descent. The German Foreign Ministry declined to comment on secret government documents that were submitted to Parliament as part of a review of the Kurnaz case. The documents, which were seen by a reporter for The New York Times, indicated that Germany had rejected an American offer to return Mr. Kurnaz. In one, German intelligence suggested that he should be sent to Turkey instead. The documents note that the Americans had been puzzled by the German response. With public criticism mounting, the German Parliament has opened its formal investigation into how the government handled Mr. Kurnaz’s case. The Defense Ministry has begun its own investigation. The case has become a lingering headache for Chancellor Angela Merkel. Under mounting public pressure, she set the wheels in motion for Mr. Kurnaz’s release by raising his case in a meeting in January with President Bush. But the previous German government’s dealings involve the current foreign minister, Frank-Walter Steinmeier, who was then chief of staff to Chancellor Gerhard Schröder. Mr. Schröder said recently that he knew nothing about the case while he was chancellor -- a claim that drew a sardonic response from Mr. Kurnaz. "Smart guy," he said. Mr. Kurnaz says he went to Pakistan because he and a Turkish friend from Bremen, Selcuk Bilgin, had wanted to immerse themselves in Islam. Mr. Bilgin was detained at the Frankfurt airport on Oct. 3, 2001, when authorities found the record of an unrelated misdemeanor charge, and Mr. Kurnaz set off alone. Once in Pakistan, he traveled from mosque to mosque under the auspices of Tablighi Jamaat, a South Asian Islamic missionary group that is active in Europe. Mr. Kurnaz, whose family is not deeply religious, said he was attracted to the group because of the work it did with drug users and homeless people. Having married in Turkey that summer, Mr. Kurnaz said he felt this was his last chance to travel and study Islam before settling down. At the time, he said, he believed there was little danger in going to Pakistan, since he did not plan to cross into Afghanistan. In Peshawar, however, the Pakistani police detained Mr. Kurnaz during a routine roadside check; according to his account, he was later turned over to the Americans for a bounty of $3,000. Mr. Kurnaz said he was then moved to Kandahar, which he recalls as the darkest period of his confinement. "It was the beginning, so there were absolutely no rules," he said of his early captivity by the Americans. "They had the right to do anything. They used to beat us every time. They did use electroshocks. They dived my head in the water." American officials who interrogated Mr. Kurnaz accused him of being a terrorist and a member of Al Qaeda, he said. They asked him if he knew Mohamed Atta, the Egyptian hijacker who, in Hamburg, only an hour’s ride from Bremen, had plotted the Sept. 11 attacks. The prisoners were kept outside, behind wire fences, with only thin jumpsuits to protect them in the winter, Mr. Kurnaz said. It was during this period, he said, that he encountered the two German soldiers. Around the beginning of February 2002, Mr. Kurnaz reckons, he was flown to Cuba (he said he was not sure of the date, as prisoners were not allowed to see clocks or calendars). Mr. Kurnaz, an animal lover who used to keep birds and dogs, said he knew where he was after landing because he saw an iguana and a hummingbird that were native to Cuba. Life in Guantanamo was less brutal than in Kandahar. Still, Mr. Kurnaz said, he spent more than half of his first two years there in a cell by himself after breaking an early rule that prohibited working out. "I was pretty famous because I used to train a lot," said Mr. Kurnaz, who boxed in Germany. "They punished me every time." Some of the guards, he said, were nevertheless fascinated by his strict regimen. "They used to call me the push-up king," he said with a trace of a smile. At his Combatant Status Review Tribunal in 2004, Mr. Kurnaz learned that he had been classified as an "enemy combatant" because of his association with Tablighi Jamaat, which the American government suspects of supporting Islamic terrorism, and also because of his friendship with Mr. Bilgin, who American officials said might have carried out a suicide bombing. "He was absolutely not that kind of person," Mr. Kurnaz said. "I said, ‘How can a human being change so much in just a few years?’ But I believed it." (Mr. Bilgin is now living in Bremen, according to officials. Mr. Kurnaz said he had not seen him, and calls him an "ex-friend.") German authorities investigated suggestions that Mr. Kurnaz had associated with radical Islamic figures, but found no evidence that he had ties to terrorist groups. In Guantanamo, he said, he was interrogated twice by German officials. The officials, who did not identify themselves, told him that if he gave the right answers, it would help his case, he said. In the end, the evidence did not hold up to judicial scrutiny. A Federal District Court judge, Joyce Hens Green, concluded in early 2005 that even the classified portion of his file was "rife with hearsay." More than a year later, in July, Mr. Kurnaz returned to a chilly reception in Germany, where he was nicknamed the "Taliban of Bremen" by the news media. The German government reinstated an investigation of his ties to Al Qaeda but, finding no evidence, formally cleared him. His wife filed for divorce while he was away. Lawyers for Mr. Kurnaz are considering lawsuits against both the American and German governments. But he said a financial settlement alone would not compensate for what was taken from him. "I left all those years in prison," Mr. Kurnaz said. "Nobody could give them back, even if they gave me several million dollars. Cars and houses, you can buy. Freedom, you can’t buy." [ Victor Homola contributed reporting from Berlin. ] * New York Times -- October 31, 2006 WHAT TORTURE IS AND ISN’T: A HARD-LINER’S ARGUMENT By Michiko Kakutani http://www.nytimes.com/2006/10/31/books/31kaku.html Review of: WAR BY OTHER MEANS An Insider’s Account of the War on Terror By John Yoo 292 pages / Atlantic Monthly Press / $24 In the tumultuous days and weeks after 9/11, a young lawyer in the Justice Department’s Office of Legal Counsel named John Yoo became a key architect of the Bush administration’s legal response to the terrorist threat and a strong advocate of its expansive view of presidential power. The controversial opinions he worked on would elicit charges that the administration was subverting the Constitution, tipping the balance of power among the three branches of government, trampling the civil rights of detainees and authorizing coercive interrogation. Mr. Yoo worked on memos and opinions that determinedly attempted to redefine torture. He also argued that the terrorist attacks created "an emergency situation" in America, and that given this situation, "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties." Shortly after the terrorist attacks of Sept. 11, Mr. Yoo wrote a memorandum opinion, which declared that "the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11." And in January 2002, he was a co-author of a memo arguing that "customary international law has no binding legal effect on either the President or the military" and that "neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions in Guantanamo Bay, Cuba, or to trial by military commission of al Qaeda or Taliban prisoners." In his combative new book, "War by Other Means," Mr. Yoo -- who is now a professor at the University of California, Berkeley, School of Law -- lays out the thinking behind the Bush White House’s legal maneuvers. While he makes many of the same arguments that other members of the administration have used to defend its aggressive post-9/11 policies, he is more candid than many of his colleagues about his fervent belief in unfettered executive power. And his book makes timely if often disturbing reading, given the Supreme Court’s recent Hamdan ruling (which repudiated the military tribunals created by the administration to put Guantanamo detainees on trial without due process) and Congress’s subsequent passage, in September, of a detainee treatment bill, which gives the president new power over terrorism suspects and deprives foreigners detained in United States military prisons of the right to challenge their imprisonment. Mr. Yoo suggests in these pages that the war on terror is a new paradigm that calls for new tactics; that the judiciary should defer to the executive branch in wartime; and that those who quarrel with the Bush White House are soft on fighting terrorism. One of his favorite tactics in this book is to create a ridiculous caricature of administration critics’ views and then dismiss them. For instance, he writes: "A Geneva Convention POW camp is supposed to look like the World War II camps seen in movies like ‘Stalag 17’ or ‘The Great Escape.’ But because Gitmo does not look like this, critics automatically declare that detainees’ human rights are being violated." In this volume, Mr. Yoo argues that the Constitution grants the president "the leading role in foreign affairs," and that the Authorization for Use of Military Force, passed by Congress a week after 9/11, gives the president broad powers to wage the war on terror the way he wants to. Indeed, Mr. Yoo says, "We wrote the law as broadly as we did" to "make sure there could be no claim in the future that the President was acting in the war on terrorism without congressional support." Major figures in Congress have said repeatedly that this law does not give the president such sweeping powers; Mr. Yoo, meanwhile, contends that the ambiguous wording covers everything from the implicit power "to detain enemy combatants" to the implicit authority "to carry out electronic surveillance to prevent further attacks." Mr. Yoo has not used his academic background in the legal aspects of war powers issues and executive authority to make a persuasive case here for the administration’s actions. Instead, he has written a book that reads like a combination of White House talking points and a partisan brief on presidential prerogatives -- a book that is strewn with preposterous assertions, contorted reasoning and illogical conclusions. He writes that "because of our aggressive policies post 9/11, al Qaeda is no longer the threat it was." He suggests that might makes right: "At this moment in world history the United States’ conduct should bear the most weight in defining the customs of war. Our defense budget is greater than the defense spending of the next fifteen nations combined." And he contends that President Bush’s decision to secretly authorize the National Security Agency to eavesdrop on Americans in search of evidence of terrorist activity without court-approved warrants "does not signal that we live under a dictator, or that the separation of powers has failed," because Congress, which "has total control over funding and significant powers of oversight," could simply decide to "do away with the NSA as a whole." Just as the administration cherry-picked intelligence to make the case that Saddam Hussein possessed weapons of mass destruction, so Mr. Yoo cherry-picks information in this volume. Of the Schlesinger report on the Abu Ghraib prison, Mr. Yoo says it found that the abuses there "resulted not from orders out of Washington, but from flagrant disregard of interrogation and detention rules by the guards." He does not grapple with those portions of the report that found "there is both institutional and personal responsibility at higher levels." August 2002 memos worked on by Mr. Yoo addressed the question of what constituted torture and just what might lead to prosecution by the International Criminal Court. In this book he amplifies his views on this subject, quibbling over the meaning of phrases like "severe physical or mental pain or suffering" and "prolonged mental harm." In addition, he makes much of wording in the Convention Against Torture (ratified by the United States in 1994), that requires the criminalization of torture and also declares that parties "undertake to prevent ... other acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture." He uses these passages to argue that there is an important distinction to be made "between torture on the one hand, and harsh measures characterized as ‘cruel, inhuman, or degrading treatment’ on the other." Concerning a 2004 decision by the Justice Department to revise an earlier opinion (which had been widely condemned in Congress and by human rights groups as laying the groundwork for the abuses at Abu Ghraib), Mr. Yoo, intentionally or not, seems to buttress arguments made by critics of the administration, writing that it was an "exercise in political image-making" designed to help ease the confirmation of Alberto Gonzales as attorney general. He adds that this 2004 opinion "included a footnote to say that all interrogation methods that earlier opinions had said were legal were still legal. In other words, the differences in the opinions were for appearances’ sake. In the real world of interrogation policy nothing had changed. The new opinion just reread the statute to deliberately blur the interpretation of torture as a short-term political maneuver in response to public criticism." Mr. Yoo is cavalierly dismissive in this book of critics of administration policy, shrugging off concerns about violations of civil rights and presidential overreaching. "Is the Bush administration using public fear to consolidate political power?" he asks. "If it is, it has only another two years to go, and new security policies generally last only as long as the emergency. Lincoln’s military courts and military justice did not last beyond the Civil War and Reconstruction. FDR’s internments ended after World War II. The President and Congress usually give up their emergency powers voluntarily, and if they don’t, courts step in." Never mind that there is no foreseeable end date to the war on terror. Never mind that the judiciary, which Mr. Yoo says in this passage can be counted on to curb any possible overstepping by the Bush White House, may have had its power to review the treatment of detainees sharply curtailed by Congress’s recent passage of the Military Commissions Act of 2006 -- the same judiciary Mr. Yoo repeatedly berates in this tendentious book for "pushing into matters where it didn’t belong," and for impinging upon the powers of the presidency, an office whose function he asserts is "to act forcefully and independently to repel serious threats to the nation." * MSNBC -- October 24, 2006 CAN THE '20TH HIJACKER' OF SEPT. 11 STAND TRIAL? Aggressive interrogation at Guantanamo may prevent his prosecution PART TWO OF TWO By Bill Dedman http://www.msnbc.msn.com/id/15361462/ Mohammed al-Qahtani, detainee No. 063, was forced to wear a bra. He had a thong placed on his head. He was massaged by a female interrogator who straddled him like a lap dancer. He was told that his mother and sisters were whores. He was told that other detainees knew he was gay. He was forced to dance with a male interrogator. He was strip-searched in front of women. He was led on a leash and forced to perform dog tricks. He was doused with water. He was prevented from praying. He was forced to watch as an interrogator squatted over his Koran. That much is known. These details were among the findings of the U.S. Army's investigation of al-Qahtani's aggressive interrogation at Guantanamo Bay, Cuba. But only now is a picture emerging of how the interrogation policy developed, and the battle that law enforcement agents waged, inside Guantanamo and in the offices of the Pentagon, against harsh treatment of al-Qahtani and other detainees by military intelligence interrogators. In interviews with MSNBC.com -- the first time they have spoken publicly -- former senior law enforcement agents described their attempts to stop the abusive interrogations. The agents of the Pentagon's Criminal Investigation Task Force, working to build legal cases against suspected terrorists, said they objected to coercive tactics used by a separate team of intelligence interrogators soon after Guantanamo's prison camp opened in early 2002. They ultimately carried their battle up to the office of Secretary of Defense Donald H. Rumsfeld, who approved the more aggressive techniques to be used on al- Qahtani and others. Although they believed the abusive techniques were probably illegal, the Pentagon cops said their objection was practical. They argued that abusive interrogations were not likely to produce truthful information, either for preventing more al-Qaida attacks or prosecuting terrorists. And they described their disappointment when military prosecutors told them not to worry about making a criminal case against al-Qahtani, the suspected "20th hijacker" of Sept. 11, because what had been done to him would prevent him from ever being put on trial. ****** When Gen. Geoffrey D. Miller, the U.S. Army general in charge of detainees at Guantanamo Bay, flew to Iraq on Aug. 31, 2003, to advise on operation of a little-known prison called Abu Ghraib, his plane also carried something of a stowaway. An agent of the Pentagon's Criminal Investigation Task Force went along to warn U.S. prison officials in Iraq that Gen. Miller's aggressive interrogation techniques were not the only way, that there were legal and effective ways of building rapport with detainees to get them to talk. The task force's top cop, Mark Fallon, had sent the agent. Fallon said he feared that the Guantanamo techniques would spread. "I wanted to tackle the general, anything to stop him from getting on that plane," Fallon said. "The best I could do was to send along a chaperone." Gen. Miller resisted the agent, Blaine Thomas, joining his team, according to Fallon and his commander, Col. Brittain P. Mallow. He eventually relented, they said, but in Iraq he told the agent three times that he wasn't needed in meetings. So the agent made the best of his time in Iraq, meeting with the FBI. The general, now retired, says the cops have it backward. "I'm the one who asked their guy to come" on the Abu Ghraib trip, Gen. Miller said, "and when they sent him, he was the one who decided to work with the FBI and other agencies instead of coming to the briefings. He had free and open access like everyone else." In early April 2004, Gen. Miller left Guantanamo for a new role, running all U.S. prisons in Iraq, a few weeks before the name Abu Ghraib became well known. An Army investigation found later that Miller on his first visit had urged that military police with dogs "set the conditions" for interrogations, and that interrogators adopt "emerging strategic interrogation strategies and techniques" being used at Guantanamo. "When the Abu Ghraib photos were released," Fallon said, "I felt a great disappointment." "I wasn't there for the meetings with General Miller. I do not know what he told those folks over there, what techniques to employ. ... But I felt a great sense of disappointment that I was not able to effectively influence behaviors that could have contributed to Abu Ghraib." ****** At Orlando International Airport on Aug. 4, 2001, a Saudi traveler caught the eye of a Customs agent. The young man had no return ticket, $2,800 in cash, and wouldn't identify the friend he said would pick him up at the airport. The Customs agent decided this was a potential illegal immigrant. Before being sent on a flight back to the Middle East, Mohammed al-Qahtani turned to the agent and said, "I'll be back." The Pentagon has said that his friend at the airport was the Sept. 11 ringleader, Mohammed Atta, and that al-Qahtani was apparently intended to be the fifth hijacker on United Airlines Flight 93, which crashed in Pennsylvania when passengers were able to overpower the other four. Al-Qahtani, through his attorney, says he was not involved. Al-Qahtani was captured in December 2001 on the Afghanistan-Pakistan border and shipped to the U.S. prison camp at Guantanamo Bay. For awhile he cooperated with FBI interrogators, but by the fall of 2002, he had mostly stopped talking. The pressure on interrogators to produce information was intense. Less than a year after the Sept. 11 attacks, al-Qaida attacks were continuing: the firebombing of a synagogue in Tunisia in April, a bomb outside the U.S. Consulate in Karachi in June. In early September 2002, the FBI suggested another option for obtaining information from al-Qahtani, according to the leaders of the law enforcement task force, who shared an office at Guantanamo with the FBI. The plan, they said, was to send al-Qahtani temporarily or permanently to another country, such as Egypt or Jordan, where he could be interrogated with techniques that the FBI could not legally use. The commander of the law enforcement task force, Col. Britt Mallow, and his chief investigator, Mark Fallon, say they learned of the plan from the Pentagon's Office of General Counsel, which urged them to reach a consensus with the FBI and intelligence interrogators on how to handle al-Qahtani. The cops opposed the plan, which was scrapped. A later FBI legal analysis warned that even discussing such a plan, known as "rendition," could be a crime, conspiracy to commit torture. The FBI and Justice Department will not comment on any plan for rendition of al- Qahtani. A Pentagon spokesman, Cmdr. Jeffrey D. Gordon, said only, "There is continuous dialogue among interagency staffs about a wide variety of topics of national importance, although we do not typically discuss those talks." If al-Qahtani wasn't going to talk with the law enforcement agents, then the military intelligence interrogators wanted their shot. By September 2002, they were developing their own interrogation plans for al-Qahtani. By this time, law enforcement interrogators said, they had seen signs of coercive or abusive techniques being tried by the young, mostly inexperienced, military intelligence personnel: a cinder block left in the interrogation box, apparently used to hold a detainee in a stress position, called short shackling; a detainee wrapped from head to toe in duct tape. These techniques were not in the interrogation bible, the Army Field Manual. The al-Qahtani plan went much further. The law enforcement agents began to hear a new term, SERE, an acronym for Survival, Evasion, Resistance and Escape. SERE training is provided to U.S. Special Forces and other military personnel to prepare them to withstand torture if they become prisoners of war. It includes mocking of their religious beliefs, sexual taunting, and a technique called water-boarding, which induces water through the nose to make a prisoner feel like he's drowning. Intelligence interrogators had the idea to "reverse-engineer" SERE, to use its techniques to pry information out of the suspected al-Qaida and Taliban terrorists. Pentagon e-mails seen by MSNBC.com show that at least a half dozen military intelligence personnel from Guantanamo, including at least one medical adviser, went to Fort Bragg, N.C., on Sept. 16-20, 2002, for SERE training. It was an experiment, apparently not unlike what the CIA had been trying on the few high-value detainees kept at secret locations. The law enforcement agents, who were collecting intelligence information but primarily focused on developing cases for Pentagon prosecutors, say they questioned whether SERE tactics would produce useful information. "It was the latest gimmick," said Michael Gelles, the chief psychologist for the Naval Criminal Investigative Service and an adviser to the law enforcement agents at Guantanamo. "The problem was these techniques were taught to harden you against interrogation." Gelles said he called Col. Morgan Banks, the director of the Psychological Applications Directorate at Fort Bragg. "I said it was nuts," Gelles recalls, "and told him we were concerned about this. He said it was used to train for resistance, and would not work as an interrogation approach. But they still teach it." That September of 2002, Col. Mallow and Fallon ordered their agents in writing not to engage in coercive interrogations, particularly using SERE techniques. They also said they and their agents raised these concerns several times with the commander at Guantanamo, Gen. Michael E. Dunlavey, and his staff, but he "wouldn't listen at all," Col. Mallow said. Gen. Dunlavey, a lawyer and reserve officer, now a state judge in Erie, Pa., says the law enforcement agents "are absolutely wrong." They didn't speak up to him about any coercive interrogations, he said. Any use of the SERE techniques must have begun after he left. "Whatever happened after Gen. Miller took over, I can't tell you." Dunlavey said he always believed that "torture is wrong," and that his views were right in line with the law enforcement views. He said couldn't comment further because he is a defendant in two lawsuits brought by detainees. Back in the states, Col. Mallow and Fallon said, they raised the issue almost weekly in August and September 2002 with lawyers from the office of the Pentagon general counsel, William J. Haynes III, as well as senior Army officials. Mallow said he recalls clearly that one meeting was on Sept. 11, the anniversary of the attacks, because his father died that night. The cops argued that the al-Qahtani plan not only was illegal and unreliable, but also unnecessary. Mohammed al-Qahtani was not alleged to be a leader of the Sept. 11 plot. He was not trained as a pilot. If he was involved, he was one of the "muscle" hijackers. Everything known about al-Qaida, they said, suggests that information is compartmentalized. Mallow said the senior Pentagon lawyers were sympathetic, but had limited influence on policy areas handled by the office of the secretary of defense. A VIP TOUR Into the interrogation debate flew a group of legal VIPs from the White House, the Justice Department and the Pentagon. Defense Department e-mails seen by MSNBC.com show that a delegation visiting Guantanamo on Sept. 25, 2002, included Alberto R. Gonzales, then the White House counsel and now attorney general; David S. Addington, legal counsel to Vice President Dick Cheney, now his chief of staff; Timothy E. Flanigan, the deputy White House counsel; William Haynes III, the Pentagon general counsel; Larry Thompson, then deputy attorney general; Christopher A. Wray, the principal associate deputy attorney general, now head of Criminal Division at the Justice Department; and John Yoo, a lawyer in the Justice Department's Office of Legal Counsel, who reportedly had just helped write an Aug. 1, 2002, "torture memo" to Gonzales, defining torture narrowly as causing pain equivalent to organ failure or death. The visiting VIPs met with Gen. Dunlavey and his staff, but not with any of the law enforcement investigators who opposed the aggressive interrogations. The White House and the Pentagon will not comment on the visit, other than to say that delegations frequently visited Guantanamo to discuss detainee matters. Yoo has expressed the administration's position on the balance between anti- terrorist operations and law enforcement in the war on terror. "You know, the point of the war is not to collect evidence and solve crimes; it's to fight and defeat the enemy," Yoo, now a law professor at the University of California, said in an NPR interview this month. "So I think this sort of flexible process reflects the demands and the nature of warfare." The Pentagon's law enforcement investigators bristle at the idea that defeating al-Qaida was solely the mission of the intelligence interrogators. "It was our job to prevent the next attack," Fallon said. "Anyone in the United States government's job, particularly someone who is a federal agent, law enforcement officer, is to prevent the next attack against the United States. ... The question we raised, rather vigorously: Will you really accomplish that objective by using aggressive technique?" A MENU OF TACTICS On Oct. 11, 2002, Gen. Dunlavey sent a formal plan for al-Qahtani's interrogation up the chain of command. He sought approval for a menu of 19 "counter-resistance techniques" not in the Army Field Manual: * CATEGORY 1: Yelling, deception, use of multiple interrogators, misrepresenting identity of the interrogator (as from a country with a reputation for harsh treatment of prisoners). * CATEGORY 2: Stress positions (such as standing for up to four hours), use of falsified documents or reports, isolation for 30 days or longer, interrogation in places other than the interrogation booth, deprivation of light and sound, hooding, interrogation for up to 20 hours straight, removal of all comfort items (including religious items), switching from hot food to military meals ready to eat, removal of clothing, forced grooming and shaving of facial hair, use of phobias (such as fear of dogs) to induce stress. * CATEGORY 3: Use of scenarios to persuade the detainee that death or pain is imminent for him or his family, exposure to cold or water, use of mild non-injurious physical contact, use of a wet towel or water-boarding to simulate drowning or suffocation. When preliminary approval of these techniques came from the Army's Southern Command in Miami in early November, the law enforcement agents at Guantanamo offered an alternative plan to the intelligence side. In writing, they described successes they had seen with rapport-building, and criticized the proposed aggressive techniques as "possibly illegal" and harmful to law enforcement efforts. They also said that agents of the Defense Humint Service, the Defense Department's human intelligence spy agency, "blatantly misled" Pentagon officials by claiming that the FBI endorsed these coercive methods. The next day, Nov. 23, the military interrogators began using their techniques on al-Qahtani, according to the Army investigation, although written approval had not yet been received. While some aggressive treatment of al-Qahtani had begun months earlier -- on Oct. 1, 2002, a military police dog was used to scare the Saudi, an Army investigation found -- now it began in earnest. He was interrogated for 18 to 20 hours per day, for 48 of the next 54 days, according to an Army investigative report. On Dec. 7, 2002, he had to be revived at the detainee hospital when his heart rate fell to 35 beats per minute, according to a log of the interrogation published by Time magazine. Then the interrogation continued. FBI agents at Guantanamo joined the opposition. A Nov. 27 FBI "legal analysis," since reported by Newsweek, labeled several parts of the plan as "coercive interrogation techniques which are not permitted by the U.S. Constitution." It also warned that several of the proposed tactics could constitute torture, depending on how a judge viewed the intent of the interrogator. Justice Department spokeswoman Kathleen Blomquist declined to say last week whether the department communicated the FBI objections to the Pentagon or the White House. 'WHY IS STANDING LIMITED TO 4 HOURS?' On Dec. 2, Secretary of Defense Donald H. Rumsfeld signed off, approving most of the tactics for use on al-Qahtani and others, including all of categories 1 and 2, but only one item in category 3: mild, non-injurious physical contact. Mock assassinations and water-boarding were out. Rumsfeld added an asterisk, a note scrawled on the bottom of the approval memo, asking why stress positions were limited. "I stand for 8-10 hours a day," the secretary of defense wrote. "Why is standing limited to 4 hours?" The approval wasn't announced, not even to the law enforcement investigators at Guantanamo. "We continued to push the issue," said Fallon, the chief investigator. "Basically the responses started to come back, 'We're authorized to do this.'" The Qahtani interrogation was a success, the Pentagon has said. Al-Qahtani admitted he had been sent to the United States by Sept. 11 plotter Khalid Sheik Mohamed, that he had met Osama bin Laden several times, that he had been trained at two al-Qaida camps, that he knew the shoe bomber Richard Reid, and that 30 other detainees he identified had been bodyguards for bin Laden. The law enforcement investigators, however, say the interrogation produced little new. "I will just say that most of what we knew, we knew before," Col. Mallow said. "A lot of the intelligence 'successes' that have been touted were a result of much earlier disclosures made by detainees to our agents." Al-Qahtani's lawyer says her client repudiates his statements. "He adamantly denies all of that," said Gitanjali S. Gutierrez, of the Center for Constitutional Rights. She said al-Qahtani, now in his late 20s, is physically and psychologically broken. In addition to the degrading treatment, she said, al-Qahtani was subjected to a "fake rendition," in which he was tranquilized, flown off the island of Cuba, revived, flown back to Cuba, and told he was in a country that allows torture. "The government," she said, "has never come forward with any evidence that wasn't obtained by torture." REMEMBERING NUREMBERG Soon other detainees were in line for SERE techniques, under the new leader at Guantanamo. Maj. Gen. Miller, a former artillery officer, had replaced Dunlavey in November. On Dec. 14, according to the law enforcement agents and Pentagon e-mails, the general gave them a proposed "standard operating procedure" for use of SERE techniques. Here the law enforcement agents had their only internal disagreement. Col. Mallow, the commander, initially took the position that they could watch the intelligence interrogations, to collect information, and perhaps to deter abuses. After all, the secretary of defense had authorized these tactics. Fallon, his deputy and chief investigator, said he would resign from the law enforcement task force -- and the Navy if necessary. "You're talking illegal acts here," Fallon said. "The secretary of defense can't change the law. One of the things that we told all our personnel was the fact that during Nuremberg, Nazi war criminals were actually tried for acts that were perpetrated by them under orders of their superiors." Col. Mallow said Fallon quickly persuaded him and, on Dec. 16, the colonel ordered his agents to disengage from any inhumane interrogation, to document what they saw, and to report it. Gen. Miller was displeased, Col. Mallow recalls, saying, "You either are with us or you and your guys are out." The general does not deny saying this. He said he inherited a situation where the two teams of interrogators "weren't even speaking to one another, and it was unproductive," with two teams duplicating each other. Still the investigators were unwilling to observe the aggressive interrogations. David L. Brant, the boss of Fallon and Gelles as the director of the Naval Criminal Investigative Service, said he told the Army, "if there's anything that's beyond the boards, we'll just pull our people out." Air Force cops on the task force, from the Office of Special Investigations, said they would go along with a Navy walkout. Finally everyone agreed that the law enforcement investigators would not be forced to watch the intelligence interrogations. Although they had built a wall separating themselves from the intelligence side, the law enforcement agents knew they had failed to persuade the Pentagon that rapport-building would be more effective than abusive interrogations. 'PUT ON THE SAME UNIFORM' They turned back to the Navy for help. On Dec. 17, director Brant from the Naval Criminal Investigative service took the concerns to Alberto J. Mora, the chief lawyer for the Navy. Mora, whose family had escaped Cuba under Castro, says the interrogation tactics shocked him, reminding him of the internment of Japanese citizens during World War II. While he worked on Pentagon lawyers, he recommended that the investigators take one more shot at persuading the leadership at Guantanamo. So Fallon, the cop, and Gelles, the psychologist, flew down to see Gen. Miller. They took along a Secret Service expert on threat assessment. In Miller's office, the three cops described the rapport-building approach, how it had worked in terrorism cases, the USS Cole bombing, the embassy bombings in East Africa, even in preventing assassination attempts. The general was unmoved. "If you want to be on the team," Fallon and Gelles said Gen. Miller told them, "you've got to put on the same uniform." The general says that's a fair description of his reply. Back in Washington, Mora, the Navy lawyer, resorted to an ultimatum. On Jan. 15, 2003, he prepared a draft memorandum opposing the techniques as clearly illegal, addressed to his boss, general counsel Haynes, as well as to the legal adviser to the Joint Chiefs of Staff. Mora said he would be signing the memo at the end of the day. Before he could sign, Haynes told him that Rumsfeld would stop the aggressive interrogations. It was true, to a point. Rumsfeld rescinded his blanket approval of the harshest techniques. Rumsfeld then asked a group of lawyers at Justice and the Pentagon to come up with new limits. According to Mora, this group relied heavily on a Justice Department memo, later withdrawn, justifying cruel, inhuman and degrading treatment. In March 2003, Rumsfeld secretly re-authorized 24 techniques, mostly confined to those in the Army Field Manual but also allowing isolation, "environmental manipulation," "sleep adjustment," and threats to send the detainee to a country allowing torture. The new policy required "humane treatment," but did not define it. 'UNANSWERED QUESTIONS' Mora, now the vice president and general counsel for international operations for Wal-Mart, found out about Rumsfeld's reauthorization a year later, watching a congressional hearing on C-SPAN about Abu Ghraib. "We may have stopped some abuse on the Department of Defense side," Mora said, "but it's clear we had no effect on the national policy, meaning the White House policy, to inflict cruelty on some individuals." Although the Pentagon has looked at specific allegations made by FBI agents of abusive interrogations, no investigation has untangled how the policy of aggressive interrogation was set, or who influenced it. "The unanswered questions," Mora said, "are, how much of this was actually applied, what the level of abuse was, who the victims were, and who is responsible for the application of abuse, the cruel treatment? I think the historical record will indicate shifting responsibility for these abuses. ... You've got some abuse that was inflicted as a result of authorizations by the command authority, some from a lack of leadership, suggesting that unlawful combatants could be treated more harshly than POWs, and some from rogue soldiers who have sadistic streaks." The Bush administration has said that there was no policy to abuse detainees, although some detainees were abused in individual cases, and that those responsible have been held accountable. "What took place at Guantanamo," Rumsfeld said in January, "is a matter of public record today, and the investigations turned up nothing that suggested that there was any policy in the department other than humane treatment. And it is also clear, by the very fact that some 250 people have been punished in one way or another, that there was behavior that was inappropriate." 'AN HONEST MISTAKE' The Army's internal Furlow-Schmidt investigation of FBI allegations of detainee mistreatment found in April 2005 that Gen. Miller failed to monitor the interrogation of al-Qahtani, whose interrogation "resulted in degrading and abusive treatment but did not rise to the level of being inhumane treatment." The general told Army investigators that he was unaware of the extent of the techniques used on al-Qahtani, but they found that statement "inconsistent" with a letter he sent to his superiors on Jan. 21, 2003, saying that he approved the interrogation plan and that it was followed "relentlessly." "It is clear," the Army found, that the al-Qahtani intelligence interrogation team "believed they were acting within existing guidance." In that letter, later unclassified in part, Miller wrote that the new techniques approved by Rumsfeld "are within the spirit and intent of humane detention. ... These techniques are not intended to cause gratuitous, severe physical pain or suffering or prolonged mental harm, but are instead intended to induce cooperation over a period of time by weakening the detainee's mental and physical ability to resist." Beyond al-Qahtani, the investigators found that intelligence interrogators at Guantanamo had impersonated FBI agents and State Department investigators; played loud music with strobe lights (Metallica, Britney Spears and rap were often used); moved the detainees every few hours to disrupt sleep (called the "frequent flyer program"); wrapped a detainee's head in duct tape to stop him from chanting passages from the Koran; and a female interrogator rubbed red ink on a detainee, and said, "By the way, I am menstruating." ("The detainee threw himself on the floor and started banging his head.") Gen. Miller was recommended for administrative "admonishment" for failing to supervise the al-Qahtani investigation, but the Pentagon declined to impose the penalty. He was allowed to retire. As a condition of that retirement, he agreed to testify before the Senate Armed Services Committee, which is investigating the interrogations, but he has not yet been called. "There were mistakes made," Miller told MSNBC.com. "I'll be honest with you." He said that many of the odd tactics tried on al-Qahtani were "authorized within the guidance" from Rumsfeld of Dec. 2, "but not within the plan" of specifics laid out by his staff at Guantanamo. In other words, individual interrogators were using techniques that he had not anticipated. "One young, very young interrogator who put ladies' panties on al-Qahtani's head, that wasn't authorized," Gen. Miller said. "We relieved that kid the next morning. It was a youngster who made an honest mistake." 'UNPROSECUTABLE' Will Mohammed al-Qahtani, the suspected 20th hijacker, ever face trial? The cops who directed the investigation, Col. Mallow and Fallon, said they were told several times by prosecutors in the Pentagon's Office of Military Commissions, as the military trials are known, not to keep bringing forward a case against al-Qahtani, that there would be no case. "The techniques made some detainees unprosecutable," Fallon said. "It would provide the defense counsel a tremendous advantage at trial to sway the presiding officer and members, as well as it would have disclosed those techniques to the public." A Pentagon spokesman last week dismissed this as "speculation," but wouldn't say whether al-Qahtani would face a military trial, known as a commission. "The detainee you reference," Cmdr. Gordon said, "is not among those 10 already referred to military commissions." (See sidebar, In limbo: Cases are few against Gitmo detainees.) Under the Military Commissions Act signed last week by President Bush, statements made under torture would not be admissible in a military trial. But the law says a military judge could accept statements made under coercion. A court may have to decide which category, torture or coercion, encompasses such techniques as a fake trip to Egypt, sleep deprivation, and being forced to do dog tricks. The new law also extends legal protection from prosecution for war crimes to any U.S. personnel who used coercive tactics, if they believed in good faith that what they were doing was lawful. Al-Qahtani's lawyer says she believes he'll never face trial, that eventually the government will have to transfer him back to Saudi Arabia. "They can't just leave him in Guantanamo to rot and die," Gutierrez said. ****** Soon after the Abu Ghraib photos were released, Mark Fallon saw Gen. Geoff Miller one last time. Fallon was returning to the Naval Criminal Investigative service, where he directs the training academy. "I frankly was rather surprised because General Miller gave me a hug," Fallon said. "It was the first hug that I received from General Miller. "And he actually had told me that we were right." That's true, Miller says. "To be frank with you," the general says, "I got down there and saw that the rapport-building was more effective. We made significant progress as we moved along. I found the law enforcement techniques to be an effective way to go about doing business. "But not the only way." * MSNBC -- October 23, 2006 GITMO INTERROGATIONS SPARK BATTLE OVER TACTICS The inside story of criminal investigators who tried to stop abuse PART ONE OF TWO By Bill Dedman http://www.msnbc.msn.com/id/15361458/ Speaking publicly for the first time, senior U.S. law enforcement investigators say they waged a long but futile battle inside the Pentagon to stop coercive and degrading treatment of detainees by intelligence interrogators at Guantanamo Bay, Cuba. Their account indicates that the struggle over U.S. interrogation techniques began much earlier than previously known, with separate teams of law enforcement and intelligence interrogators battling over the best way to accomplish two missions: prevent future attacks and punish the terrorists. In extensive interviews with MSNBC.com, former leaders of the Defense Department's Criminal Investigation Task Force said they repeatedly warned senior Pentagon officials beginning in early 2002 that the harsh interrogation techniques used by a separate intelligence team would not produce reliable information, could constitute war crimes, and would embarrass the nation when they became public knowledge. The investigators say their warnings began almost from the moment their agents got involved at the Guantanamo prison camp, in January 2002. When they could not prevent the harsh interrogations and humiliation of detainees at Guantanamo, they say, they tried in 2003 to stop the spread of those tactics to Iraq, where abuses at Abu Ghraib prison triggered worldwide outrage with the publishing of graphic photos in April 2004. Their account, confirmed by the Navy's former general counsel, outlines a fierce debate within the Defense Department over the competing goals of justice and security in the war on terror. President Bush has said repeatedly that the detentions at Guantanamo were intended not only to secure intelligence information to prevent al-Qaida attacks, but also to "bring to justice" the terrorists. As a result, a dual structure of intelligence gathering and criminal investigation, with two arms of the U.S. military, with overlapping missions, interrogating the same prisoners, continues today. The law enforcement agents, who were building criminal cases against the detainees, also say that military prosecutors told them that abusive interrogations at Guantanamo compromised the chance to bring some suspected terrorists to trial. Among them, the agents say, is Mohammed al-Qahtani, a Saudi whom the Pentagon has described as the intended 20th hijacker in the Sept. 11, 2001, terror attacks. "We were told by the Office of Military Commissions, based on what was done to him, it made his case unprosecutable," said Mark Fallon, the deputy commander and special agent in charge of the Criminal Investigation Task Force from 2002 to 2004. "It would taint any confession if obtained under coercion. They were unwilling to move forward with any prosecution of al-Qahtani." A Pentagon spokesman on Friday dismissed this as "speculation," but would not say whether al-Qahtani would be tried. He is not among the 10 detainees who have been approved for a military trial. It was two years before the photos emerged from Abu Ghraib, the Pentagon cops said, when they began arguing that coercive or abusive interrogations would not serve war-fighting or justice. "No. 1, it's not going to work," said Col. Brittain P. Mallow, the commander of the task force from 2002 to 2005. "No. 2, if it does work, it's not reliable. No. 3, it may not be legal, ethical or moral. No. 4, it's going to hurt you when you have to prosecute these guys. No. 5, sooner or later, all of this stuff is going to come to light, and you're going to be embarrassed." ****** The members of the criminal task force who spoke with MSNBC.com are experienced criminal investigators. The task force drew from the Army, Navy and Air Force, as well as from the FBI, Secret Service and other law enforcement agencies. These agents are not whistleblowers. Those still serving inside the Department of Defense received authorization to be interviewed by MSNBC.com. Working in the shadow of Sept. 11, under pressure to prevent another attack on the nation, the investigators found themselves pitted in a war of principle against a unit of young intelligence interrogators, often reservists, with little or no experience. Based on their experience interrogating al-Qaida members involved in the bombing of the USS Cole and other attacks, the agents preferred an approach to interrogation they called "rapport building." "We had agents who knew how to do adversarial interviews, had sat across from bad guys," Col. Mallow said. "Interviews and interrogations are not about making someone talk. They are about making them want to." Early in 2002, when the first detainees were brought from the Afghan front to the barbed wire of Guantanamo, the law enforcement agents said, they saw intelligence interrogators struggle to apply to suspected al-Qaida terrorists the techniques taken from the Army Field Manual. They said frustrated intelligence interrogators were trying whatever they thought might work: One interrogator fancied blaring country and western music and a full cowboy getup during his sessions. By the summer of 2002, the agents said, the intelligence unit was experimenting with harsher tactics, such as using a cinderblock to hold a detainee in a "stress position" by forcing him to sit on it with his hands chained to the floor. By the fall of 2002, believing that some detainees had al-Qaida training in resisting interrogation, the intelligence team sought greater leeway from Secretary of Defense Donald H. Rumsfeld. He approved new rules allowing stress positions for up to four hours, deprivation of light and sound, interrogation for up to 20 hours straight, removal of all comfort items (including the Koran and toilet paper), removal of clothing, forced shaving of facial hair, and use of military dogs to scare detainees. In practice, these new rules were interpreted broadly: According to interrogation logs made public, al-Qahtani, the suspected 20th hijacker, was dressed in women's clothing and led around on a leash while performing dog tricks. WARNINGS AND ALTERNATIVES With increasing frustration, the agents said, they worked for change within the Pentagon in these ways: * Suggested alternatives to the Army commanders in charge of the Guantanamo intelligence interrogations, Maj. Gen. Michael E. Dunlavey and his replacement, Maj. Gen. Geoffrey D. Miller. They said Dunlavey wouldn't listen, and Miller questioned their loyalty and patriotism, saying, "If you want to be on the team, you've got to put on the uniform." Miller acknowledges saying this. He said he was trying to get the intelligence and law enforcement groups to work together, to repair a situation where they were barely speaking. Dunlavey says he was a supporter of the rapport- building approach, and "torture doesn't work," but he can't say more because he is a defendant in two lawsuits brought by former detainees. * Refused to participate in interrogations they felt were abusive; reported any signs of criminal acts by the intelligence interrogators; blocked an FBI plan to move al-Qahtani to another country where he could be tortured; and threatened to remove their investigators from Guantanamo entirely if they were forced to watch abusive interrogations. * Pushed their warnings up the chain of command to the Pentagon's general counsel, William J. Haynes III, and to officials in Rumsfeld's office. "In some cases, they listened to what we said," said Col. Mallow, the unit's commander. "In other cases, we just got head nods." The agents said they were shut out of briefings when senior lawyers from the Bush administration toured Guantanamo on Sept. 25, 2002, while the plan for the aggressive interrogation of al-Qahtani was being formed. The VIP visitors included White House counsel Alberto R. Gonzales, now the attorney general; David S. Addington, legal counsel to Vice President Dick Cheney, now his chief of staff; and Justice Department attorney John Yoo, who helped write memos narrowly defining torture. They also were surprised not to be contacted during subsequent Pentagon investigations of detainee treatment at Abu Ghraib and Guantanamo, which concluded that there was no policy of abuse. Fallon, Col. Mallow and other investigators recently provided written answers to questions from Sen. Carl Levin of Michigan, the ranking Democrat on the Senate Armed Services Committee, who has told the investigators he plans to issue a report as soon as this week calling for an investigation of Bush administration policies on detainees. 'WE WILL NOT BE A PARTY TO THIS' "What makes me intensely proud of all these individuals was they said, 'We will not be party to this, even if we're ordered to do so,'" said Alberto J. Mora, the former general counsel of the Navy, who ultimately got Secretary Rumsfeld to roll back permission for some of the harshest interrogation techniques. "They are heroes, and there's no other way to describe them. They demonstrated enormous personal courage and personal integrity in standing up for American values and the system we all live for." In the end, the law enforcement investigators said, they were not able to stop abusive interrogations, but they were able to slow them. "We always said, there are no secrets, just delayed disclosures," said Fallon, the chief investigator. "And what we told our folks is, your grandchildren are going to ask, 'What did you do during the war?' We wanted our folks to be proud of what they did." ****** Mark Fallon is a cop. The grandson of a police commissioner and son of a deputy chief, he married the daughter of his father's partner from the detective bureau. He grew up in Harrison, N.J., now best known as "Sopranos" family territory. (The television version of Big Pussy's auto body shop is just down the street from Fallon's boyhood home, and his boat is the "Bada Bing.") After college, Fallon took his father's advice to "go federal," first as a deputy U.S. marshal and then in 1981 as an agent for the Naval Criminal Investigative Service. Working undercover and wearing a rattail haircut as a young agent, he busted Filipino drug dealers in Subic Bay before the ships came in, hoping to discourage sales to American sailors. In 1993, he worked with the FBI on the investigation of the blind sheik, Abdul Omar Abdel-Rahman, who planned to blow up the United Nations and other New York City landmarks. In 1998, he was the lead agent investigating the joyriding Marine aviators from Aviano Air Base who clipped a cable-car wire in Italy, killing 20 tourists. As chief of counterintelligence operations in Europe and the Middle East, Fallon commanded the Navy's USS Cole Task Force, investigating with the FBI the 2000 al-Qaida suicide bombing that killed 17 sailors in the Yemeni port of Aden. As an investigator, Fallon has been trained to collect the facts and challenge assumptions. As a civilian who has served the Navy and Marine Corps in 31 countries, he has grown accustomed to speaking truth to people in uniforms -- with a New Jersey bluntness if necessary. "If you're honest and act with integrity," he says, "what else do you need?" 'THIS IS YOUR LIFE' In January 2002, Fallon was lent by the Navy to the Army to serve as deputy commander and special agent in charge of a new Criminal Investigation Task Force. Based at Fort Belvoir, Va., he supervised agents working in Afghanistan, Iraq and Naval Station Guantanamo Bay, commonly known as "Gitmo," building cases against detainees believed to be al-Qaida members or supporters. The investigators faced an almost insurmountable challenge at Guantanamo. They didn't have names for many of the detainees. It often wasn't clear what country they were from. A detainee might claim he was a Saudi, then visiting law enforcement agents would recognize him as a Yemeni. Most weren't picked up by U.S. forces, but were handed over by bounty hunters in the early days of the war in Afghanistan. They were transferred with scant records, often without any "pocket litter," the possessions and documents that can be invaluable to investigators. The law enforcement team's mission was to conduct criminal investigations, prepare cases for prosecution, recommend which detainees should be released or held, and pass on intelligence information to other agencies. But this was no ordinary criminal case. Rumsfeld had called the detainees "the worst of the worst," but what crime had they committed? "Instead of having a crime scene, a suspect, we had suspects," Fallon said. "So we had to take a suspect ... then track that particular person, once we identified who they actually were, through various levels of their life, through possible radicalization, through a possible visit to ... a training camp in Afghanistan or elsewhere where they might have learned some of the tradecraft of terrorism. We would then have to determine where they might have been at any particular point in their life, from there determine if any acts occurred in that particular area, and then if the individual might have been involved in any of those acts, and if those acts then would have been a criminal violation. So it was very much different from the way you would traditionally work a criminal investigation." They called the process "This Is Your Life," after the biographical radio and television show. Although Pentagon officials have referred to an "elaborate screening process" before detainees were sent to Guantanamo, the law enforcement agents said evidence of criminal activity or intelligence value in some cases was flimsy. Fallon said two detainees were suspected in a rocket attack against U.S. forces in Afghanistan. The evidence against them was that they were found wearing dark olive green jackets similar to the one worn by the attacker. "I've been to Kabul," he said. "That's the only color jacket I've seen." Because they saw so many detainees they thought didn't belong there, the investigators decided early in 2002 to expand operations to Afghanistan, to help evaluate detainees before they were sent to Guantanamo. In the end, they were able to develop criminal cases against only about 100 of the roughly 775 detainees who came to Guantanamo. Out of 445 detainees still remaining at Guantanamo, the Pentagon says "more than 70" are in line for military trials. (See sidebar, In Limbo: Cases are few against Gitmo detainees. http://www.msnbc.msn.com/id/15361740/ ) "There are some mean, nasty people down there," said Jeffery K. Sieber, a former resident agent in charge of the law enforcement task force at Guantanamo. "There's always been some hard-core people down there who want to do very bad things to the United States. And some who weren't -- but now they're very upset." INTELLIGENCE UNIT HELD LEAD ROLE The law enforcement investigators don't control the operations at Guantanamo. The lead role is played by a separate military intelligence unit, the Army's Joint Task Force 170, later known as the Joint Task Force Guantanamo, which runs the prison and interrogates detainees for intelligence information. Rumsfeld has made clear in public statements that the Bush administration considers the intelligence mission more important than the law enforcement mission. "Once September 11th occurred and the global war on terror began, people ... had in their mind that when you arrested somebody like a car theft or a bank robber, what you do is you put him in jail, then you give him a lawyer, then you have a trial, and then you punish them," Rumsfeld said in a 2004 radio interview. "Of course in this instance, the people in Guantanamo Bay, these are people that were picked up on the battlefield for killing innocent men, women and children in Afghanistan. ... They're not car thieves. The purpose is to keep them off the battlefield so they don't kill more innocent men, women and children, and to try to interrogate them and find out what they know so we can stop other terrorists from killing still additional Americans and friends of ours. It isn't a law enforcement task. It's a war on terrorism task." The Pentagon also has said that the intelligence interrogations at Guantanamo are "guided by a very detailed plan, conducted by trained professionals in a controlled environment, and with active supervision." But the cops at Guantanamo said the intelligence interrogators were "very challenged." "The first time most of these interrogators were actually ... in the room with a real bad guy was at Guantanamo Bay," Fallon said, "with this tremendous challenge of trying to elicit information from someone who's a suspected terrorist." 'FUTILITY' OR FRENCH FRIES? The intelligence team had mostly completed a course at the U.S. Army Intelligence Center at Fort Huachuca in Arizona, where they learned a series of interrogation scenarios described in the Army Field Manual with catchy names: Fear Up Harsh, Pride and Ego Down, Mutt and Jeff, We Know All, Isolation, Futility. These scenarios are open to wide interpretation. An intelligence officer in Afghanistan was asked by an Army investigator to describe the Fear Up scenario. "Disrespect for the Koran," he began, though there's nothing about that in the Army Field Manual. "Insult the PUC," or person under custody, "throw a chair inside a room. Have a room upstairs with spotlights. Turn on music very loud, under constant supervision of an MP guard." The law enforcement investigators, on the other hand, had their own ways of making the detainees talk. In captured al-Qaida training handbooks, jihadists are told what to expect during interrogation. The U.S. will whip you, use dogs, give you water but not allow you to urinate, isolate you, insult your family. The handbooks say nothing of French fries. "Some of them really became fond of some fast food French fries, and cheeseburgers," Fallon said, noting that the law enforcement agents made frequent visits to a McDonald's on the U.S. base. Wearing polo shirts instead of uniforms, the law enforcement investigators would take off the detainees' leg irons and handcuffs. Aside from the lack of a lawyer and a Miranda warning, the investigators said they tried to treat the captives as they would any suspect. The cops call it rapport-building. "Our folks would sit on the ground with detainees having tea," Fallon said. "Many of the detainees wanted also to be released. And our goal was to obtain accurate information. A good investigator works hard to prove guilt or innocence." Before the interrogation, they would study. Fallon sought help from a friend from the Naval Criminal Investigative Service, chief psychologist Michael Gelles, to develop training that included Arab culture and social networking, tribal origins, al-Qaida camps, the roles of shame, obedience and secrecy. They brought in Arabic speakers and agents with Middle Eastern experience, who had worked on the USS Cole and East African embassy bombings. But their main weapon was their experience as cops. "We were not browbeating them. We were not fussing with them," said Randy Carter, the director of operations at the Guantanamo interrogation "boxes" for the task force. 'IN THE TROPICS, BEAUTIFUL VIEWS OF THE OCEAN' "We would create an environment where they were comfortable talking with us. Asking about their families. Have they had any correspondence with them? Is their food acceptable?" Agents would say, 'You're in the tropics, beautiful views of the ocean,' and some of them would chuckle with that, and that would bring down the barriers that they had built up on themselves," Carter said. Some were "head hangers," who wouldn't even acknowledge an interrogator, but others loved to talk. Carter recalled an Australian detainee "coming in to discuss things, and just loving a pepperoni pizza, which is pork, and him being a good Muslim. He knew it. And smoking his Marlboros. Building a rapport is not what they're used to, and it worked for us. As we built a rapport, it would be 'yes' or 'no.' Then it would be telling us whether they did or did not do it, and if they didn't, who did." At first, the two sets of interrogators, intelligence and law enforcement, tried to work together, crowding into the box with the detainee and an interpreter. These efforts did not go well. The scripted scenarios of the intelligence interrogators, such as Rapid Fire -- repeatedly asking the same question with slightly different phrasings no matter what the answer - frustrated the criminal investigators as well as the detainees. In August 2002, the two teams agreed to take turns, each choosing 200 detainees for an exclusive period of interrogation. But that plan broke down frequently, because the intelligence group had priority. "If we had a cooperating detainee," Carter said, "we would share that information, but then JTF 170 would get him up in the middle of the night to have him tell them the same information. It impeded our process." Of greater concern was a different attitude toward abusing or degrading the detainees. The law enforcement investigators said they saw early on in Afghanistan, before the detainees were shipped to Guantanamo, that the temptation to cross the line would be great - not out of sadism in most cases, but out of confusion about what would work. "I watched the intelligence community, military and civilian, struggle with how to develop a coherent strategy to deal with terrorist subjects," Col. Mallow said. "I wish they had asked our law enforcement folks more, had invited us to the table more. We sure did not have all the answers, but I think we could have helped." ON GUARD AGAINST RUNAWAY EMOTIONS The messages from the Bush administration and the Pentagon had been mixed: The detainees were to be treated humanely, "consistent with" the Geneva Conventions on treatment of prisoners of war. But they also said that the Geneva Conventions did not apply: These were not prisoners of war, but "enemy combatants." "We were very, very concerned," Fallon said, "to ensure that we would not, in the heat of battle, in a highly emotional period, in an effort to do the right thing, commit criminal acts." That moral and legal line was patrolled by Carter, who monitored the interrogation booths in Guantanamo's Camp Delta. From his observation booth in a triple-wide interrogation trailer, where he could see into two interrogation boxes at once, he was charged with ensuring that the intelligence interrogations, with their flashing lights, stress positions or the man in the cowboy outfit, didn't contaminate the evidence from legal investigations. "I told ICE -- Interrogation Control Element -- I do not want any of our interrogations or interviews in the same trailer as the intel collectors are," Carter said. "We are not to partake of any of their tactics, we are not to witness any of their tactics. We can't have the foolishness from those folks in the mix." At this stage, in the summer of 2002, said Col. Mallow, the commander of the law enforcement unit, "We're not talking about grievous abuse. But frankly some of the things my agents saw were just plain silly and stupid. They were obviously amateurish and not likely to produce good results. "It would get worse." -------------------------------------------------------------------------------- About this series The following members of the Criminal Investigative Task Force at Guantanamo Bay and other military officers and civilians were interviewed in preparing these articles: * Col. Brittain P. Mallow, CITF's commander from 2002-2005. * Mark Fallon, deputy commander and special agent in charge of the CITF from 2002-2004. * Jeffery K. Sieber, former resident agent in charge of CITF activities at Guantanamo. * Randy Carter, former chief of operations for CITF at the interrogation booths at Guantanamo. * Michael Gelles, chief psychologist of the Naval Criminal Investigative Service, who advised CITF on interrogations. * David L. Brant, former director of the Naval Criminal Investigative Service. * Major General Geoffrey D. Miller, former commander of all detainee operations at Guantanamo. * Alberto J. Mora, former general counsel of the Navy. [ CITF = Criminal Investigation Task Force ] -------------------------------------------------------------------------------- * MSNBC -- * SIDEBAR * October 23, 2006 IN LIMBO: CASES ARE FEW AGAINST GITMO DETAINEES Only about 70 out of 775 will face military trials, Pentagon says By Bill Dedman http://www.msnbc.msn.com/id/15361740/ Speaking directly to terrorists in his speech on this year's fifth anniversary of Sept. 11, President Bush said, "America will find you, and we will bring you to justice." But because of a lack of evidence, most of the suspected terrorists taken to the detention center at Guantanamo Bay, Cuba, will not see the inside of a courtroom. Only one out of 10 is facing a military trial, the Pentagon acknowledges. Hundreds could be held indefinitely. Out of roughly 775 detainees who have come to Guantanamo, former leaders of the Criminal Investigation Task Force, said they were able to develop credible cases against only about 100. And some of those have been released. The investigators said that some criminal suspects against whom they had good evidence have been among the 340 detainees released, because they were citizens of Great Britain or other cooperating countries who made diplomatic deals with the United States. Citizens of some 40 nations are still at Guantanamo. Of the 435 who remain in the prison camps, the Pentagon says, another 110 have been labeled as ready to release, but the United States has not been able to find a country willing to take them under terms such as continued confinement or monitoring. Of the remaining 325, how many will face trial? At this point, "more than 70," the Pentagon says. Of those 70, only 10 have been certified by the president as al-Qaida members or supporters eligible for trial. The trials, called military commissions, will allow the detainees some rights, such as advice of an attorney, but will allow evidence that wouldn't be permitted under the rules in U.S. criminal courts. They are expected to begin next year at the earliest. That leaves approximately 250 detainees, more than half of those still at Guantanamo, who are being held indefinitely, not because they are awaiting a trial, but because the U.S. considers them to be dangerous or to possess intelligence information, the Pentagon said. The Supreme Court has upheld that the government may detain enemy combatants for the duration of hostilities - in an unconventional war that may never end. 'POTENTIAL SUICIDE BOMBERS' The Pentagon notes that any detainee release carries risk. It says about 15 released detainees have returned to the battlefield, taking part in hostile acts against Americans or allies. "It's important for Americans and others across the world to understand the kind of people held at Guantanamo," Bush said last month. "These aren't common criminals, or bystanders accidentally swept up on the battlefield. We have in place a rigorous process to ensure those held at Guantanamo Bay belong at Guantanamo. Those held at Guantanamo include suspected bomb makers, terrorist trainers, recruiters and facilitators and potential suicide bombers. They are in our custody so they cannot murder our people." * Wall Street Journal -- October 19, 2006 SENDING A MESSAGE Congress to Courts: Get Out of the War on Terror. By John Yoo http://www.opinionjournal.com/editorial/feature.html?id=110009113 During the bitter controversy over the military commission bill, which President Bush signed into law on Tuesday, most of the press and the professional punditry missed the big story. In the struggle for power between the three branches of government, it is not the presidency that "won." Instead, it is the judiciary that lost. The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3. Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged. After all, it has gotten away with many broad assertions of judicial authority before. This has been because Congress is unwilling to take a clear position on controversial issues (like abortion, religion or race) and instead passes ambiguous laws which breed litigation and leave the power to decide to the federal courts. Until the Supreme Court began trying to make war policy, the writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis). Even after hostilities ended, the justices turned away lawsuits by enemy prisoners seeking to challenge their detention. In Johnson v. Eisentrager, the court held that it would not hear habeas claims brought by alien enemy prisoners held outside the U.S., and refused to interpret the Geneva Conventions to give new rights in civilian court against the government. In the case of Gen. Tomoyuki Yamashita, the court refrained from reviewing the operations of military commissions. In Hamdan, the court moved to sweep aside decades of law and practice so as to forge a grand new role for the courts to open their doors to enemy war prisoners. Led by John Paul Stevens and abetted by Anthony Kennedy, the majority ignored or creatively misread the court's World War II precedents. The approach catered to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations, rather than hewing to wise but boring precedents. Thoughtful critics point out that because the enemy fights covertly, the risk of detaining the innocent is greater. But so is the risk of releasing the dangerous. That's why enemy combatants who fight out of uniform, such as wartime spies, have always been considered illegals under the law of war, not entitled to the same protections given to soldiers on the battlefield or ordinary POWs. Disguised suicide- bombers in an age of WMD proliferation and virulent America- hatred are more immediately dangerous than the furtive information-carriers of our Cold War past. We now know that more than a dozen detainees released from Guantanamo have rejoined the jihad. The real question is how much time, energy and money should be diverted from winning the fight toward establishing multiple layers of review for terrorists. Until Hamdan, nothing in the law of war ever suggested that enemy status was anything but a military judgment. While there may be different ways to strike a balance, this is a decision for the president and Congress, not the courts. The Constitution gives Congress the authority to determine the jurisdiction of federal courts in peacetime, and also declares that habeas corpus can be suspended "in Cases of Rebellion or Invasion" when "the public Safety may require it." Congress's power is even greater when it is correcting the justices' errors. Courts are ill-equipped to decide whether vast resources should be devoted to reviewing military detentions. Or whether military personnel's time should be consumed traveling back to the U.S. for detainee hearings. Or whether we risk revealing information in these hearings that might compromise the intelligence sources and methods that may allow us to win the war. This time, Congress and the president did not take the court's power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court's habeas powers in wartime because it disagreed with its decisions. The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions. All this went overlooked during the fight over the bill by the media, which focused on Sens. McCain, Graham and Warner's opposition to the administration's proposals for the use of classified evidence at terrorist trials and permissible interrogation methods. In its eagerness to magnify an intra-GOP squabble, the media mostly ignored the substance of the bill, which gave current and future administrations, whether Democrat or Republican, the powers needed to win this war. [ Mr. Yoo, professor of law at Berkeley and visiting scholar at the American Enterprise Institute, served in the Bush Justice Department from 2001-03. He is the author of "War By Other Means" (Grove/Atlantic 2006). ] * Boston Globe -- October 18, 2006 BATTLES BREWING ON TORTURE, DETAINEES Bush signs, hails rules; foes vow legal challenge By Farah Stockman and Charlie Savage http://www.boston.com/news/nation/washington/articles/ 2006/10/18/battles_brewing_on_torture_detainees/ WASHINGTON -- President Bush yesterday signed into law new rules on interrogating detainees and prosecuting suspected terrorists at Guantanamo Bay, calling the measure "one of the most important pieces of legislation in the war on terror." But as Bush and a group of key Republican senators hailed the compromise that led to the passage of the new rules last month, the American Civil Liberties Union called it "one of the worst civil liberties measures ever enacted in American history." Groups of defense lawyers vowed to fight the new law in court, calling it "blatantly unconstitutional" because it denies detainees the right to challenge their detention in court. The lawyers' vows assure that the battle over the treatment and prosecution of detainees -- which consumed Congress for much of September and sparked a brief Republican rebellion against the administration -- will continue in courtrooms in the coming years, almost certainly finding its way to the Supreme Court. The law bans US agents from inflicting severe physical or mental pain and using torture during interrogations. But it gives the White House wide latitude to define what constitutes torture and "cruel treatment" under the Geneva Conventions, and it effectively grants legal amnesty to White House officials who authorized harsh techniques in the past to protect CIA agents who have reportedly used mock drownings, sleep deprivation, and hypothermia during interrogations . The law also bars US courts from hearing any civil or criminal cases regarding a detainee's treatment while in US custody. "This bill provides legal protections that ensure our military and intelligence personnel will not have to fear lawsuits filed by terrorists, simply for doing their jobs," Bush said, lauding the CIA interrogation program as a "vital tool" that has thwarted numerous attacks. "This program has been one of the most successful intelligence efforts in American history." It is unclear whether the new law bans mock drownings and other such tactics. Senator John McCain of Arizona, a Republican and former Vietnam POW who spearheaded the effort to outlaw torture, said those tactics would be prohibited. But White House press secretary Tony Snow would not specify which methods would be allowed. "The government will not tell you the precise questioning techniques, for the reasons that have been outlined many times before," he said. "You do not want to give those who are apprehended, or terrorists, the ability to plan in advance for techniques that might be used." In an unusual move, the Bush administration broke with its practice of issuing "signing statements," which Bush has repeatedly used to assert an expansive view of his own powers as commander in chief, and to ignore statutory limits if he decides that violating a law is necessary to protect national security. Snow had said this week that Bush would not need to issue a signing statement for this law because Congress "did a really good job" in drafting it. He joked that the White House wanted to "frustrate [the media] because everybody has been waiting for one." In the coming weeks, Snow said, the White House will publish in the Federal Register a broad interpretation of what acts constitute torture under the Geneva Conventions. When it comes to the government's prosecution of detainees, the law sets up a new system of military trials, after the Supreme Court struck down the old one in June. The justices ruled that the tribunals Bush authorized to try the detainees had not been approved by Congress. Months of wrangling ensued between Bush and key Senate Republicans who wanted the White House to explicitly ban torture and put limits on the use of evidence in detainee trials if the information was collected through coercion and torture. Critics of the new law, however, contend that it denies justice for detainees because it cuts off access to federal courts. The vast majority of the 450 detainees in Guantanamo, critics say, are not accused of terrorist acts and are unlikely to ever stand trial, and their only recourse had been to file petitions in federal court challenging their detentions. The new law now blocks the court from hearing those petitions. Yesterday, the Department of Justice immediately sent a letter to a US appeals court in Washington announcing that the Guantanamo detainees no longer have access to the court. Defense lawyers said they would appeal, arguing that the Constitution guarantees a detainee's right to challenge his or her detention in court, and that that right cannot be so easily denied by Congress. "Even though that was Congress's intent, we completely don't buy the idea that you can do that," said Patrick Ehlers , a member of the Oregon public defender's office, which is representing seven Guantanamo Bay detainees. Ehlers predicted that it could take years before the Supreme Court settles the matter; in the meantime, he said, cases that his office has been working on for years would be halted and the detainees will continue to be held unjustly. Ehlers said his office has collected witness statements from Afghanistan that he says would prove his clients' innocence in court, including videotaped testimony from an Afghan deputy minister that one client worked for on a legally recognized charity, not a terrorist group. "Just as the president is signing a bill that closes the courthouse door, here are three cases of guys in the door that say, `We're innocent,' " he said. Democrats yesterday criticized the new law. "The administration initially tried to establish military commissions without congressional approval, but it failed to bring any detainee to justice in the five years since 9/11 and the commissions were struck down by the Supreme Court last term," Senator Edward M. Kennedy of Massachusetts said in a statement. "The administration's new scheme is likely to suffer the same fate, and Congress will have to pass further legislation to try to get it right." Senator Patrick J. Leahy of Vermont, a ranking member of the Judiciary Committee, said Congress cannot strip away protections enshrined in the Constitution, no matter the circumstances. "It is a sad day when the rubber- stamp Congress undercuts our freedoms," he said in a statement. But Bush insisted that the law will help "secure this country." "It sends a clear message," he said. "This nation is patient and decent and fair, and will never back down from the threats to our freedom." - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - October 18, 2006 HIGHLIGHTS OF THE ACT * ALLOWS Enemy combatants to be held indefinitely without trial or access to an attorney, but once the detainee stands trial, a lawyer is assigned. Hearsay evidence so long as a judge determines it was reliable. Hearsay evidence is evidence based on what someone has told a witness, not something the witnesses have seen or heard for themselves. Defendants to see some -- but not necessarily all -- of the evidence. The imposition of the death sentence. * BANS Certain abuses of detainees, such as torture and rape -- but gives the president leeway to decide whether interrogators can use other coercive techniques. Suspects from going to court to challenge the constitutionality of their confinement. Defendants from invoking the Geneva Conventions as a source of rights. SOURCE: JURIST, news reports [ Kathleen Hennrikus / Globe Staff ] * Washington Post -- October 17, 2006 US FACES OBSTACLES TO FREEING DETAINEES Allies Block Returns From Guantanamo By Craig Whitlock http://www.washingtonpost.com/wp-dyn/content/ article/2006/10/16/AR2006101601339.html BERLIN -- British Foreign Secretary Margaret Beckett last week issued the latest European demand to close down the U.S. military prison at Guantanamo Bay, Cuba. The existence of the prison is "unacceptable" and fuels Islamic radicalism around the world, she said, echoing a recent chorus of complaints from Europe about U.S. counterterrorism policy. Behind the scenes, however, the British government has repeatedly blocked efforts to let some prisoners leave Guantanamo and return home. According to documents made public this month in London, officials there recently rejected a U.S. offer to transfer 10 former British residents from Guantanamo to the United Kingdom, arguing that it would be too expensive to keep them under surveillance. Britain has also staved off a legal challenge by the relatives of some prisoners who sued to require the British government to seek their release. Other European governments, which have been equally vocal in assailing Guantanamo as a human rights liability, have also balked at accepting prisoner transfers. A Turkish citizen who was born and raised in Germany was finally permitted to return from Guantanamo in August, four years after the German government turned down a U.S. proposal to release him. In addition, virtually every country in Europe refused to grant asylum to several Guantanamo prisoners from China who were not being sent home because of fears they could face political harassment there. The Balkan nation of Albania agreed to take in five of the Chinese in May, but only after more than 100 other nations rebuffed U.S. pleas to accept them on humanitarian grounds, State Department officials said. "In practical terms, it's not enough to say, 'Guantanamo should be closed,' without suggesting the next sentence: What do you do with the people who are there?" John B. Bellinger III, the State Department's chief legal adviser, said during a visit to Berlin last week to meet with German counterterrorism officials. There are about 435 prisoners from about 40 countries at Guantanamo, according to the Pentagon. Military tribunals have concluded that about one-quarter of the prisoners are not a security risk, or are otherwise eligible for release or transfer. Ultimately, Bellinger said, U.S. officials expect 60 to 80 prisoners to face trial by military commission. The rest will be released, though many of them might face charges or other restrictions in their home countries. But those whom the Pentagon wants to free often have nowhere to go. In many cases, their native countries don't want them or have challenged their nationalities. Also slowing the process is a U.S. policy stipulating that prisoners cannot be transferred to nations with a record of human rights violations unless there are written assurances that they won't be mistreated. The Pentagon has already freed all but a few European citizens from Guantanamo. But U.S. officials have struggled to persuade Britain, Germany and other allies in Europe to accept prisoners who once had legal residency there, or who are effectively stateless. "We think countries whose nationals are in Guantanamo ought to take responsibility for them," Bellinger said. "We have also, in certain cases, encouraged European governments to see if they would be eager to take detainees of other nationalities." So far, there have been few takers. Although Albania agreed to accept the five Chinese prisoners -- all ethnic Uighur Muslims -- the United States is still looking for a home for 17 Uighurs who remain at Guantanamo. Several European countries with small Uighur immigrant populations declined to give the prisoners asylum after receiving pressure from the Chinese government, which wants to extradite the Uighurs and try them on terrorism charges, according to U.S. and European officials. Among those countries is Germany, which also balked for years at allowing a German native, Murat Kurnaz, to return even though U.S. military intelligence and German law enforcement officials had largely concluded there was no information tying him to al-Qaeda or terrorist activities, U.S. and German documents show. In 2002, U.S. officials indicated they were willing to release Kurnaz, who was born and raised in Germany but holds Turkish citizenship. But the German government barred him from returning. The official explanation: Kurnaz had failed to renew his German residency permit while he was locked up at Guantanamo. But German diplomats acknowledged that they saw no reason to take Kurnaz back and that they considered him an American problem. "It was a shame what happened," said one of his attorneys, Bernhard Docke. "It was a kind of excuse for being passive and just watching what was going on. If Germany had done something then, it would have kept him from having to spend another four years in Guantanamo." European officials say the United States deserves the bulk of the blame for delaying the release of inmates who have been found not to be a threat. In January, new German Chancellor Angela Merkel raised Kurnaz's case in visits to the White House and said her country had changed its mind. But it took until August to secure his release, largely because U.S. officials insisted he be indicted or placed under 24-hour surveillance. The Bush administration ultimately relented after Germany refused, according to German officials and Kurnaz's lawyers. Some of the strongest resistance to helping Guantanamo inmates has come from Britain, America's closest ally on counterterrorism matters. Despite the presence of British troops in Afghanistan and Iraq, as well as a longtime special relationship between U.S. and British intelligence agencies, British officials have become increasingly blunt in their calls for the closure of Guantanamo on moral and legal grounds. Beckett, the foreign secretary, said Thursday that Guantanamo was "unacceptable in terms of human rights" and added that it was "ineffective in terms of counterterrorism." In an interview last month with The Washington Post, Charles Falconer, one of the highest-ranking justice officials in Britain, accused the United States of a willingness "to do things beyond the law." He has also called Guantanamo "an affront to the principles of democracy." While all British citizens in Guantanamo were freed starting in 2004, Britain has balked at allowing former legal residents of the country to return. British officials say they are under no legal obligation to intercede on their behalf because they lack citizenship. It's unclear exactly how many British residents remain in prison at the U.S. military base in Cuba. British officials said there are nine who were residents of the United Kingdom at one time, four of them illegally. U.S. officials say there are 10, court papers show. According to an affidavit filed in a London court case by David F. Richmond, director general of defense and intelligence for the British Foreign Office, U.S. officials informally floated a proposal in June to see whether Britain would be willing to accept the transfer of all 10 prisoners. Court papers show that Britain nixed the idea, saying it would be too costly and difficult to meet U.S. conditions to keep the men under constant surveillance. George Brent Mickum IV, a Washington lawyer, represents two of the British residents, Jamil el-Banna, a Palestinian with Jordanian citizenship who legally moved to Britain in 1994, and Bisher al-Rawi, an Iraqi citizen who immigrated to Britain as a teenager in 1984. He said his clients would much rather return to London, even if it meant restrictions on their liberty there. But he said Britain was clearly opposed to the idea, under any circumstances. "As far as I'm concerned, they can put them under whatever surveillance they want -- they're infinitely better off in Britain," Mickum said. "But the British have indicated to me that they are adamant. They do not want these guys back." The British security service known as MI5 played an instrumental role in sending Banna and Rawi to Guantanamo in the first place. The men were seized in 2002 during a business trip to West Africa, taken to a secret CIA prison in Afghanistan and later shipped to Cuba. Documents show that British agents tipped off the CIA to the men's whereabouts after they had refused to work as informants for MI5 in London. [ Researcher Julie Tate in Washington contributed to this report. ] * International Herald Tribune / AP -- October 16, 2006 PENTAGON DEFENDS DETENTION OF AP PHOTOGRAPHER IN IRAQ, DOES NOT SAY WHETHER HE WILL BE CHARGED http://www.iht.com/articles/ap/2006/10/16/america/ NA_GEN_US_Photographer_Detained.php NEW YORK (AP) -- The Pentagon has brushed off a request from a journalist organization seeking more information and a decision on Bilal Hussein, an Associated Press photographer held for six months in Iraq without formal charges. Pentagon spokesman Bryan Whitman, in a letter to the Committee to Protect Journalists, did not provide details about why Iraqi photographer Bilal Hussein continues to be held without charges at a U.S.-run prison camp. He instead repeated the military's longstanding assertion that it detained Hussein under authority of U.N. resolutions and in accord with the Geneva Conventions. Hussein was arrested in Ramadi on April 12. The military has said he was in the company of two alleged insurgents, in an apartment where there were bomb-making materials, and that his detention was for "imperative reasons of security" under U.N. resolutions. His "strong ties" to insurgents go beyond the role of a journalist, the military has said. The Associated Press last month made a public call for the military to either charge Hussein with a crime or release him. After the AP request, Paul Steiger, chairman of the Committee to Protect Journalists, sought information about Hussein's detention, and asked for the Pentagon to say whether it would charge him with a crime. He noted that in several cases where journalists have been detained by U.S. forces for lengthy periods, they ultimately were released without charges or convictions. "If U.S. military officials do not intend to charge Hussein with a crime, we believe he should be released at once," Steiger wrote. Whitman, in his response, said Hussein has been notified and given an opportunity to provide information for consideration in at least two of three military reviews of his detention. But an AP executive said that was true only for one of the three hearings -- and the notice came after the hearing took place. "Bilal Hussein was not aware that any of these took place," said Dave Tomlin, AP's associate general counsel. "So he obviously wasn't present for any of them, nor was he represented at any of them." "We regard all these so-called due process events as legally meaningless, and in fact consider it laughable that the term 'due process' would even be applied to them," Tomlin said. AP executives went public with news about Hussein's detention Sept. 10 after months of behind-the-scenes negotiations. They said the news cooperative's review of Hussein's work did not find inappropriate contact with insurgents and that U.N. resolutions do not allow for indefinite detention. Any evidence against him, they said, should be brought to the Iraqi criminal justice system or else he should be released. Hussein is one of an estimated 14,000 people detained as suspected security threats by the U.S. military worldwide; some 13,000 of them are in Iraq. Few are charged with a specific crime or given a chance before any court or tribunal to argue for their freedom. * TIME -- October 12, 2006 FINGERING DANNY PEARL'S KILLER US officials are now convinced it was Khalid Sheikh Mohammed, the alleged mastermind of 9/11, who murdered the Wall Street Journal reporter By Timothy J. Burger and Adam Zagorin http://www.time.com/time/world/article/0,8599,1545441,00.html Who murdered Wall Street Journal reporter Daniel Pearl? Since his kidnapping and execution by Islamic militants in Pakistan in 2002, various suspects have been identified. Pakistani authorities initially put the blame on Ahmad Omar Saeed Sheik, a British-born Islamist who was convicted and sentenced to death for the crime in Pakistan in 2003. Three fellow conspirators received jail terms of 25 years. More recently, a new book by Pakistani president Pervez Musharraf, In the Line of Fire, speculates that Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, was "the man who may have actually killed Pearl or at least participated in his butchery." According to Musharraf, "When we later arrested and interrogated him, he admitted his participation." A new HBO documentary, The Journalist and the Jihadi: The Murder of Daniel Pearl, leaves the question unresolved; it focuses on the intersecting lives of Pearl and Sheik, the man convicted of the crime, but also cites unnamed U.S. and Pakistani officials who blame Khalid Sheikh Mohammed for the murder. Now, several U.S. officials tell TIME that KSM's role in the Pearl murder appears more direct than previously acknowledged -- and that the Bush Administration plans to try him for it. The officials tell TIME that KSM confessed under CIA interrogation that he personally committed the murder. Moreover, when he faces a military tribunal at Guantanamo, perhaps as soon as next year, the U.S. plans to charge him not only with the 9/11 plot, but also with direct responsibility for Pearl's death. Khalid Sheikh Mohammad (KSM) was one of 14 "high value" prisoners recently moved to the U.S. detention camp at Guantanamo Bay, Cuba, from secret CIA prisons overseas. In announcing the transfer on Sept. 6, President Bush also promised to try some of the most important captives in military tribunals, a plan that Congress approved last month. One former U.S. national security official tells TIME there is no doubt that KSM personally wielded the knife that killed the Wall Street Journal reporter. This official says that Ahmad Omar Saed Sheik insisted under interrogation that taking Pearl's life was not at first part of the kidnap plot -- though Sheik also told his questioners that Pearl's kidnappers could never have released him because he was Jewish. But as the scheme unfolded, someone senior to him in the al-Qaeda hierarchy, known as "the fat man," took control of the operation and beheaded Pearl. Sheik never identified KSM as the actual killer, however. The FBI deduced KSM's role only after analyzing a video of the crime, in which only the perpetrator's hands are visible. That video was released by Islamic militants soon after Pearl's murder and then widely shown on Arab television and the Internet. Eventually, the FBI obtained its own version of the original video, as well as the camera used to photograph the murder. Once KSM was taken into custody in March 2003, a comparison of the hands shown in the video and KSM's own hands, along with other evidence, confirmed the FBI's suspicions. Then, under interrogation, KSM confessed, national security officials told TIME, admitting without remorse that he personally severed Pearl's head and telling interrogators he had to switch knives after the first one, "got dull." KSM was interrogated in secret CIA prisons along with some three dozen other key captives, including alleged terrorists Ramzi Binalshibh and Abu Zubaydah, a close associate of Osama bin Laden. U.S. officials say all were questioned as part of a special CIA program that was in effect before Congress began legislating on interrogation policy, first last December and again in anew bill that President Bush is expected to sign soon. But with their actionable intelligence value largely exhausted in recent months -- and the White House under political and legal pressure to alter the CIA's once-secret detention and interrogation system -- all the captives have been shipped to Guantanamo or to third countries. Ahmad Omar Saed Sheik, who was questioned intensively after his capture and conviction in Pakistan, insisted to his interrogators that he was personally opposed to beheading victims, and felt bad about what happened to Pearl. But he also stated that it was sometimes the only way for terrorists to prove -- in videos released to the outside world -- that a person was, in fact, dead. Today, Pearl's widow, Marriane Pearl, is raising the couple's son, Adam, who was born four and a half months after his father's death. A non-profit foundation set up by the Pearl family in Daniel Pearl's name promotes interfaith dialogue and attempts to combat the mind-set that led to his murder. * Balkinization -- October 8, 2006 WHEN LAWYERS ARE WAR CRIMINALS Remarks to the ASIL Centennial Conference on The Nuremberg War Crimes Trial, Bowling Green, Ohio (2006.10.07) By Scott Horton http://balkin.blogspot.com/2006/10/when-lawyers-are-war-criminals.html To the memory of Helmuth James von Moltke -------------------------------------------------------------------------------- "In France, innumerable summary executions occur, even as I sit here writing. Each day certainly more than a thousand people are killed, and thousands of German men experience murder as a matter of routine. And yet all of that is child's play compared to what's going on in Poland and Russia. Can I learn about this and just sit at the table in my heated apartment and drink tea? Don't I establish my complicity simply by doing nothing? What will I say in the future, when someone asks me: and what did you do during this time?" -- Helmuth von Moltke, in a letter to his wife (1941.10.19) -------------------------------------------------------------------------------- Talking about the Nuremberg Tribunals inevitably seems to involve "bad Germans," so I want to talk about a man who deserves to be remembered in the course of this meeting. He was more than merely a "good German;" indeed, he was man whose powerful moral example serves as a model for all of us today, a man who represents the ethical pinnacle of our profession. And the strange thing is that he was a staff lawyer at the German defense ministry during the Second World War. His name was Helmuth von Moltke. His tenacious advocacy of the Geneva and Hague Conventions in the face of withering criticism and suspicion from the Nazi hierarchy saved the lives of thousands of civilians and prisoners, particularly on the Eastern Front and in the Balkans. It also led inextricably to his execution at the hands of the Nazis in 1945. Disgusted by an atmosphere in which law was constantly subverted to political expedience, Moltke envisioned harsh prosecutions of politicians and lawyers who engaged in such antics as an essential purgative. In a draft dated June 14, 1943, Moltke envisioned a special international criminal tribunal to be convened at the conclusion of the Second World War for the purpose of bringing to justice those who violated the laws of war. Lest there be any doubt, it was principally the men he worked with every day in the Wehrmacht whose punishment he foresaw. In view of mounting evidence of a crime of genocide, and out of concern that international customary law failed yet to provide a medium for its punishment, he advocated an expansive posture for prosecution. "Any person who violates the essential principles of divine or natural law, of international law, or of international customary law in such a fashion that makes clear that he contemptuously disregards the binding nature of such law shall be punished," he wrote in a plan for a post-war tribunal in 1943. This conference has turned on a great deal of discussion of Robert Jackson and his visionary role in the Nuremberg process, but it is truly remarkably that so much of Jackson's vision was commited to paper two years earlier, and its author was not only a German, but the scion of his nation's most prominent military family. I come to the example of Moltke for another reason, namely that he very properly puts the emphasis not on the simple soldiers who invariably operate the weaponry of war, but on those who make the policies that drive their conduct. And in that process, his stern gaze falls first on the lawyers. In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. Moltke challenges us to test the conduct of the lawyers. Do they show fidelity to the law? Do they recognize that the law of armed conflict, with its protections for disarmed combatants, for civilians and for detainees, reflects a particularly powerful type of law -- as Jackson said "the basic building blocks of civilization"? Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated? These are questions Moltke asked. They are questions that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system. For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong. United States v. Altstoetter: Lawyers As War Criminals Concerned about the level of resistance faced by German troops in the occupied territories, Hitler instructed Field Marshall Keitel to issue a special decree authorizing extraordinary measures pursuant to which political suspects would simply "disappear" to special detention facilities and might face summary court proceedings. The death penalty appears as the punishment most frequently contemplated. The decree, issued on the same day the Japanese attacked Pearl Harbor (December 7, 1941) and as the German drive on Moscow stalled and the Soviet counteroffensive had begun, is known as the "Night and Fog Decree" (Nacht- und Nebelerlass), a reference to the covert action it authorized. Contemporaneous documents make clear that it was motivated by the high level of casualties German soldiers were sustaining behind the front in occupied territory. Pacification of this territory was given a high priority. A team of Justice Department lawyers worked with Keitel and his team at OKW on the drafting of the decree and further steps for its implementation. This included a series of highly particularized rules setting out how such detainees were to be treated by police, justice officials and others. The rules specified how such individuals would be permitted to make wills, issue final letters of farewell, what would be done with children born to detainees and how their death could be recorded in the registry. Other lawyers prepared parallel orders creating special secret courts and detention facilities for those interned under the Nacht- und Nebelerlass. These courts were crafted under domestic German law and thus constituted a projection of German law into the occupied territories. These arrangements flouted the protections of the Hague Convention, specifically the right of "family honor, lives of persons" and the right "to be judged under their own laws." To the extent applied against uniformed service personnel, they also violated the Geneva Convention on Prisoners of War of 1929. However, the Justice Department lawyers advanced the view that the Hague and Geneva Conventions were inapplicable because their adversaries did not subscribe to these documents. This decree was applied brutally, and with particular force in France. A total of at least 7,000 persons were detained; a large number of them perished. The Justice Department lawyers justified these acts as steps available to an occupying power in order to protect its troops against terrorist acts or insurgency. Further, the occupied territories could be divided, roughly, into three categories: (i) areas directly incorporated into the German State (for instance, Austria, Alsace-Lorraine, the Eupen-Malmédy region of Belgium, Danzig and portions of Poland); (ii) areas under German occupation and direct administration (such as Bohemia and Moravia); and (iii) areas under puppet régimes (such as Hungary and Slovakia). As for the first, they asserted the right to treat persons found within those territories under German law. As to the second, they claimed the right as occupier to promulgate new rules and orders, and to derive them from Germany. As to the third, they relied on the acquiescence of régimes like Vichy France and Hungary. Their positions on these points were at least colorable from a legal perspective. The Justice Department lawyers were indicted and charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht- und Nebelerlass. The United States charged that as lawyers, "not farmers or factory workers," they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were "recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war." That is to say, they were customary international law. Further, the United States charged, this decree "would probably cause the death of human beings," grounding a charge of homicidal intent. After trial, the two principal Justice Department lawyers, one a deputy chief of the criminal division, were convicted and sentenced to ten years' imprisonment, less time served. This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom. Moreover, it establishes a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law. THE PRESENT CRISIS Between the fall of 2001 and early 2004, US Government lawyers engaged many of the same issues and took decisions very close to those taken by von Ammann and his colleagues in the German Justice Department. In particular, the Nacht- und Nebelerlass has a close cousin in the United States extraordinary rendition project on a policy plain, though we should quickly note two essential distinctions: the total throughput in human terms has been dozens, not thousands of persons, and it has not involved death sentences, though not a few persons (to be exact: 98) have died in incarceration under circumstances suggesting that torture was involved, if they were not indeed tortured to death. These lawyers adopted a mantra, namely, to quote Alberto Gonzales, that the Geneva Conventions were "quaint" and "obsolete," and did not apply to a "new kind of warfare." In so doing, they thoughtlessly moved in the same paths traversed by lawyers in Berlin sixty years earlier. Indeed, at the General Staff trial, the world public learned for the first time of the valiant struggle of Moltke when one of his memoranda was put into evidence. It pleaded in forceful terms for respect of the Geneva Convention rights of enemy soldiers, civilians and irregular combatants on the East Front, mustering a series of arguments that bear remarkable similarity to a memorandum sent by Colin Powell to President Bush sixty years later. And in the margins, in the unmistakeable pencil scrawl of Field Marshall Keitel, were found the words "quaint" and "obsolete." This was cited as an aggravating factor justifying a sentence of the death against Keitel. The Bush Administration apparently assumed that the court system would toe the political line they had drawn. It was clearly taken by surprise when the Supreme Court, in Hamdan, knocked the legal props out from under the Administration's detainee policy, validating the positions taken by the senior legal officers of the nation's uniformed military services and the State Department. The Hamdan decision presents a straight-forward interpretation of the Geneva Conventions, finding that Common Article 3 was applicable to detainees in the War on Terror who did not qualify for prisoner of war protections. This position is also identical to the view embraced by the organized bar in the United States in 2003, in a series of reports that warned the Administration that its legal reasoning was both radical and isolated. But the most striking aspect of the Court's opinion was its forceful and repeated references to the War Crimes Act of 1996. There is little doubt that the Court was concerned that the Administration's policies were not just inconsistent with Geneva, but in fact potentially criminal under American law. The Administration's response was to propose the Military Commissions Act of 2006, the thrust of which was to attempt to amend the War Crimes Act into oblivion and to make the amendment retroactive. When it became clear that the Administration could not muster a majority for this legislation in the Senate, the Administration entered into a compromise with Senators McCain, Warner and Graham, who had specifically flagged and objected to this effort. I want to ask today: What has this legislation done to the legacy of Nuremberg? Has it granted impunity to persons who committed war crimes? Is that impunity effective, and might it have unintended consequences? At Nuremberg, Justice Jackson promised that this process would not be "victor's justice." He said "We must never forget that the record on which we judge these defen-dants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well." Powerful words. A moral compact. Did the Bush Administration seek to repudiate Jackson's commitment? This can be answered quite clearly: yes. But did they succeed? That is less clear. But before getting to that point, I want to deconstruct some myths that the Administration has generated to obscure their entire process. THE CAMOUFLAGE In announcing the Military Commissions Act, President Bush insisted that he needed the legislation to lay to rest the concerns of 400-500 professional interrogators. These loyal citizens were, he said, concerned that the Supreme Court in Hamdan had called into question the legality of what he called "the Program," a set of "alternative interrogation procedures" which were developed and implemented by his Administrations. This was perhaps the most fact-free speech Bush has ever delivered. But it contained three fundamental misrepresentations. First, he suggested that the interrogators faced the prospect of prosecution under the War Crimes Act. In fact, as a matter of long-established policy, US service personnel are prosecuted under the Uniform Code of Military Justice and not the War Crimes Act. The CIA personnel and private contractors involved in this process likewise faced no prosecution risk under the WCA because of a memorandum of agreement between the Department of Justice, Department of Defense and CIA done by Michael Chertoff when he headed the Criminal Division. Chertoff undertook that as long as a set of scheduled techniques were used, which are described on an appended memorandum he prepared with Alice Fischer, no prosecutions would be undertaken for death, dismemberment or assaults. Consequently, only one group feared prosecution under the War Crimes Act, and that is the policy makers: John Yoo, Jay Bybee, Alberto Gonzales, David Addington, Jim Haynes and a host of others. This measure was pushed at their initiative, and for their benefit. This is the first dark secret of this measure. Second, Bush revealed that there was a new "Program," of "extraordinary procedures" that he, personally, had been advised of and had approved. The Program, he complained, had been stopped as a result of the decision in Hamdan. This is part of a general political strategy of spotlighting judges and accusing them of politics when they are bravely enforcing the law. But the facts here are different: the Program was always against the law, and the US Army's own interrogation manuals stated just that. As the current issue of Time reports, and I have corroborated from my own sources, the use of these techniques was suspended when even the President's own lawyers, and I am talking about political appointees in the DOJ as well as the interim general counsel of the CIA, concluded that it was unlawful. They were propelled to this conclusion not by Hamdan, but a half year earlier, by the passage of the McCain Amendment, which banned cruel, inhuman and degrading treatment as well as torture. Placing the blame on the Court was the second lie. Third -- and this is the darkest lie of all because it impunes the integrity of American service personnel -- Bush stated that the reach for highly coercive new techniques came at the instance of the interrogators themselves. But in fact, we now know from an array of leaked documents that these techniques were rammed down their throats, often over courageous opposition, both within the CIA and the uniformed services. When the career professionals refused, DOJ lawyers were enlisted, led by figures like Alberto Gonzales and John Yoo, to override their objections by issuing formal opinions backing orders from the White House to use abusive techniques. Consequently, when we allocate moral and legal culpability for the deaths, torment and scarred lives that this process has produced, it is the torture memo writers who surely deserve the biggest blame. It was their professional duty to say "no," but instead when asked whether they would give a green light to war crimes, they responded by doing their master's unthinking bidding. IMPUNITY The Military Commissions Act seeks to accomplish its objective of granting impunity through three tools. First, it redefines "war crimes" into a series of specifically chargeable offenses, of which two, "torture" and "cruel treatment" are most important for these purposes. Second, it makes the restatement of these crimes retroactive to September 11, 2001. Consequently, a series of criminal offenses under the War Crimes Act will disappear retroactively when the Act goes into force. Third, it strips courts of jurisdiction over habeas corpus petitions and forbids litigants to cite the Geneva Conventions and related international and foreign law in those courts, in an effort to blind the courts to the law which the Constitution obligates them to enforce. The initial draft makes clear that the White House sought impunity for crimes arising as a result of the use of three techniques that the Bush Administration (and, from the remarkable working of one of Bush's press conferences, Bush himself) authorized and which constitute grave breaches under Common Article 3: waterboarding, long-time standing (or as it was called by its NKVD inventors, in Russian: stoika) and hypothermia or cold cell. The use of these techniques is a criminal act. The purported authorization of these techniques is a criminal act. The larger effort to employ them constitutes a joint criminal enterprise. The Act does not alter the fact that these practices are outlawed by Common Article 3. However, by creating a series of specifically chargeable crimes that weave and bob through the historical offenses. The plain intent of the drafters is to make it more difficult to prosecute these offenses in US courts. At the core, we have this question: are waterboarding, hypothermia and long-time standing "cruel treatment" as the crime is identified in the Act? And on this point, the legislation's sponsors -- Senators Warner, McCain and Graham, say "yes," while the White House says "no." A fair reading would say that the Act creates ambiguity where none previously existed. However, a close comparison of the White House's original proposal with the compromise version that resulted clearly undermines the White House's claims, for the changes seem clearly keyed to forbidding the questioned tactics. So where do we go from here? Unfortunately its track record up to this point suggests that the Administration will exploit any ambiguity to work its will. Consequently, the burden will shortly fall on Administration lawyers, who will be challenged to pick their path: will it be that of Moltke and Jackson, or will they adhere to the twisted course of Addington, Yoo and Gonzales? That's a stark choice, and one that entails absolute moral clarity. If the consequence of the Act is to immunize those who authorized these techniques from prosecution, is that lawful? The US position, articulated most recently in connection with Yugoslavia's efforts to immunize its military leaders, was that any such act would only provide evidence of a broader conspiracy to commit war crimes. Consequently, the grant of immunity is ineffective in the contemplation of the international community; moreover, those involved in purporting to grant immunity may thereby be roped into a charged joint criminal enterprise. Clearly there will be no prosecutions in the US, certainly not under Attorney General Alberto Gonzales, who would figure near the top of anyone's list of criminal conspirators and whose name has already appeared in a criminal indictment relating to Abu Ghraib. But what about universal jurisdiction processes? Spain, France, Belgium, Germany, Switzerland and Italy all have universal jurisdiction statutes. Germany has already entertained a complaint against Rumsfeld, Tenet and others over detainee abuse questions. That complaint was dismissed without prejudice by the German Federal Prosecutor. In his opinion, the Federal Prosecutor stated that the first predicate of the statute had not been met since there was no showing that a prosecution for the crimes shown in the home nation of the defendants would not occur. Considering the political and military position of the United States, the invocation of a universal jurisdiction statute against sitting officers of the government has to be viewed as more than an uphill task. But I think passage of the Act has just made it a whole lot easier. CONCLUSION The legacy of Nuremberg and the solemn undertaking that Justice Jackson gave for the United States at the opening session, are under assault by the Bush Administration, which has embraced a radical world view that rests on a cult of power and a disdain for law. And fundamentally, this Administration has a notorious allergy against accountability in any form. But this conference is evidence that the spirit of Nuremberg has not been extinguished in the United States. And indeed, the flickering candle that was lit at Nuremberg has developed into principles which form the heart of the international legal order. We bear witness to those principles with this conference. * Kansas City Star -- October 7, 2006 GUANTANAMO DEFENSE LAWYER FORCED TO RETIRE BY NAVY By Carol Rosenberg http://www.kansascity.com/mld/kansascity/news/nation/15704593.htm (MCT) NEWARK, N.J. - The Navy lawyer who took the Guantanamo case of Osama bin Laden's driver to the U.S. Supreme Court - and won - has been passed over for promotion by the Pentagon and must soon leave the military. Lt. Cmdr. Charles Swift, 44, said last week he received word that he had been denied a promotion to full-blown Navy commander this summer - "about two weeks after" the Supreme Court sided against the White House and with his client, a Yemeni captive at the U.S. Navy base in southeast Cuba. Under the military's "up or out" promotion system, Swift will retire in March or April, closing out a 20-year career of military service. A Pentagon appointee, Swift embraced the alleged al-Qaida's sympathizer's defense with a classic defense lawyer's zeal - casting his captive client as an innocent victim in the dungeon of King George, a startling analogy for the attorney whose commander-in-chief is President George Bush. He wore Navy whites to his client's war-crimes tribunal at Guantanamo, dress blues to challenge the administration on the steps of the Supreme Court and turned up last week at a symposium at Seton Hall Law School in more sober, workaday khakis. "It was a pleasure to serve," said Swift, who added that he would defend Salim Hamdan all over again, even if he knew he would have to leave the Navy earlier than he wanted. "All I ever wanted was to make a difference - and in that sense I think my career and personal satisfaction has been beyond my dreams," he said. Swift, a University of Seattle Law School graduate, also said he will continue to defend Hamdan as a civilian. The Seattle law firm of Perkins Coie, which provided pro bono legal work in Hamdan's habeas corpus petition, has agreed to support Swift's defense of Hamdan in civilian life, he said. Hamdan, 36, who has only a fourth-grade education, was captured along the border between Pakistan and Afghanistan while fleeing the U.S. invasion of Afghanistan, launched in reprisal for the Sept. 11, 2001, terrorist attacks. He admits to working as bin Laden's $200-a-month driver on a Kandahar farm, but said he never joined al-Qaida and never fought anyone. Still at Guantanamo as an "enemy combatant," Hamdan halted his war-crimes trial by challenging the format's constitutionality through civilian courts. The justices ruled in June that President Bush overstepped his constitutional authority by creating ad hoc military tribunals for prisoners at Guantanamo Bay, Cuba, sending the Pentagon back to the drawing board for the trials. In the end, it developed a system very similar to those struck down, setting the stage for a likely new challenge this session. In the opinion of Washington, D.C., attorney Eugene Fidell, president of the National Institute of Military Justice, Swift was "a no-brainer for promotion," given his devotion to the Navy, the law and his client. But, he said, Swift is part of a long line of Navy defense lawyers "of tremendous distinction" who were not made full commander and "had their careers terminated prematurely." "He brought real credit to the Navy," said Fidell. "It's too bad that it's unrequited love." In June, the prestigious National Law Journal listed Swift among the nation's top 100 lawyers, with such legal luminaries as former Bush administration Solicitor General Theodore Olson, 66; Stanford Law constitutional law expert Kathleen Sullivan, 50, and former Bush campaign recount attorney Fred H. Bartlit, 73. Navy Lt. Cmdr. Jeffrey D. Gordon, Pentagon spokesman on Guantanamo topics, did not respond to a query about the up-or-out system by which Navy lieutenant commanders are retired if they don't get promoted. Perhaps ironically, one of Swift's first challenges on behalf of Hamdan as a civilian will be over whether he has the right to represent him in federal court. Under legislation approved by the House and Senate last month, Guantanamo detainees lose their right to file traditional habeas corpus petitions. Swift last saw his controversial client last month at Guantanamo. "He's depressed," the lawyer said. Swift said the Yemeni is now held in "Tango Block" at the U.S. detention center, in the company of ethnic Muslim Uighurs, who await resettlement elsewhere rather than repatriation to their native China. "He now has Chinese roommates," meaning cellblock neighbors, said Swift, "which he's not particularly thrilled about." Swift's supervisor, the Pentagon's chief defense counsel for Military Commissions, said the career Navy officer had served with distinction. "Charlie has obviously done an exceptional job, a really extraordinary job," said Marine Col. Dwight Sullivan, a former American Civil Liberties Union attorney, calling it "quite a coincidence" that the Navy promotion board passed on promoting Swift "within two weeks of the Supreme Court opinion." * Los Angeles Times -- October 7, 2006 AT GUANTANAMO: HARD TIME AND A VIEW OF WHAT COULD HAVE BEEN Detainees at a new camp will see only a sliver of a common area; isolation has become the norm. By Carol J. Williams http://www.latimes.com/news/printedition/asection/ la-na-gitmo7oct07,1,1844572.story GUANTANAMO BAY, Cuba -- The narrow windows in the 7-by-12 steel and concrete cells of Camp 6 will give detainees a view of a common room designed to bring them together as brothers in faith, language and customs. But looking is all they will be able to do. The area will be off-limits. When the Guantanamo prison complex's new camp was designed two years ago, the triangular communal area was intended to let detainees mingle over meals, games and conversation. But virtually all time at Guantanamo has become hard time, and when prisoners begin arriving at the $38-million building in the next few weeks, they will be kept mostly in isolation. A May riot in which dozens of detainees attacked U.S. soldiers, the suicide of three prisoners in June, and changes in the camp population -- including the arrival of 14 "high value detainees" -- have transformed Guantanamo into a largely maximum security facility. The first new arrivals in two years -- the group including the self-proclaimed Sept. 11 plotter Khalid Shaikh Mohammed and his alleged lieutenant Ramzi Binalshibh -- were flown from secret CIA prisons abroad over Labor Day weekend. But dozens have left in recent months, too, having been cleared by annual review boards for release or transfer to their native countries. Negotiations also are underway between the State Department and foreign governments on the possible group repatriations of more than 300 Afghans, Saudis and Yemenis. Washington is trying to obtain assurances that the men will neither be tortured nor freed to potentially threaten U.S. or allied forces. The 100 or so expected to remain after the transfers will be the detainees considered the most dangerous, those with little hope of release or reward for good behavior, according to military jailers. That population is unlikely to elicit much softening of the conditions. Near the same time of the May and June incidents, officials discovered that prisoners with good behavior records had been dismantling their faucets to fashion weapons, officials said. That prompted jailers to reconsider whether prisoners should be allowed to interact and possibly plot resistance. "We had to think about whether there is such a thing as a medium-security terrorist,'' said Rear Adm. Harry B. Harris Jr., commander of the prison and interrogation network that houses 460 war-on-terror suspects. Col. Wade Dennis, who is effectively Guantanamo's warden, echoed Harris' concern that although most detainees cooperated with camp rules, the recent violence suggested some had been hiding their true nature. "Detainees have already demonstrated they have the will and the thought processes to do self-harm and I facilitate that if I let them live in a communal-type environment," said Dennis. Shortly after the suicides, the prison commanders decided to scrap the medium- security comforts, and will keep inmates isolated behind steel doors for all but an hour or two of daily exercise time. "Meals will be served in their cells," said Naval Cmdr. Kris Winter, head of the force staffing the prisons. Since the discovery of the vandalized faucets, Camp 1 has been emptied and its detainees moved to temporary metal-mesh cells pending repairs or relocation to Camp 6, which is expected to be fully populated by the end of the year. Camp 4, which held about 175 prisoners before the riot, is a barracks-like compound where detainees slept 10 to a room, ate together and were free to congregate for as much as 14 hours daily. It has been cleared of all but about 30 Afghans who didn't take part in the uprising -- the only detainees not confined to solitary cells. Harris and Dennis say they will invoke tougher screening before any prisoners are allowed back into communal living. Where to hold the prisoners among Guantanamo's eight detention facilities is an exercise in risk assessment complicated by the shutdown of Camp 1 -- previously the most populous prison -- and the virtual emptying of Camp 4 to modify fans and light fixtures that the rioters used to make weapons. Unlike Camp 5, the reigning hard-time housing, Camp 6 has no outside windows or natural light in the cells. The prefabricated units are arrayed along two sides of a triangle. Bare concrete walls, floors and metal furnishings make the common room an echo chamber. In addition to mothballing the tables, lockers and leg-stretching spaces in the new camp, the Navy's construction force, or SeaBees, and the prison's Kellogg Brown and Root contractors have erected chain-link partitions to make 10-by-30- foot exercise pens in what was designed as an open sports court. Other retrofitting has included shower doors that will prevent the detainees from communicating, said Lt. Cmdr. Eileen D'Andrea, who was in charge of the prison's construction and 11th-hour revisions. An expanded guard force also will be needed to provide the manpower to shackle and escort each prisoner every time he needs to leave his cell, said Lt. Col. Mike Nicolucci, Dennis' deputy. The hardening of Guantanamo detention dispirits the detainees and their lawyers, who see it as part of U.S. political posturing in an election year. "They've set this up as a showcase and they feel they can't back down from it," Marine Maj. Michael Mori, who represents Australian detainee David Hicks, said of the Bush administration's Guantanamo operations. "Every day in Iraq and Afghanistan they let people go who they know are far more dangerous than these guys." Rank-and-file guards express little concern or curiosity about the conditions of the prisoners' confinement, noting that they are just doing their duty. "I don't know exactly what they did but they must have done something wrong to be here," said Master-at-Arms Seaman Leif Kreizenbeck, a 23-year-old Oregonian who arrived barely a month ago. Construction chief D'Andrea said the prison's design allows for future changes. Each of the eight clusters of 22 cells around a common area is self-contained and could be transformed to a medium-security, communal-living "pod" if that is what detention authorities decide. That prospect seems distant. "Once we get Camp 4 repaired -- and that is costing us a tremendous amount of money -- we will be very selective about who goes back to Camp 4," said Harris. carol.williams@latimes.com * Myrtle Beach Sun News -- October 6, 2006 TERRORISTS ON TRIAL Graham felt duty-bound to point out flaws By Lindsay Graham http://www.myrtlebeachonline.com/mld/myrtlebeachonline/news/local/15692421.htm Since Sept. 11, 2001, our nation has been at war. We are fighting a group of barbaric warriors as committed to their cause as any other people in history. They know no boundaries and have no sense of humanity. They are driven by a radical, hateful ideology and are barbaric in every sense of the word. Our nation is different, and it is our greatest strength. President Bush and I both want to put terrorists on trial. We also want to protect our nation from future attacks. The legislation, which Congress decisively passed, establishes military tribunals and provides the legal infrastructure to fight and win the war on terror. We can now say for the first time since Sept. 11, 2001, the executive and legislative branches are on the same sheet of music regarding the legal infrastructure we need to fight the war. I'm proud of the role I played in drafting the legislation and believe my 20 years of military legal experience helped identify problem areas and bring about constructive solutions. The Supreme Court ruled terrorist enemy combatants were covered by the Geneva Conventions. President Bush and I did not agree with its decision, but it was incumbent upon us to comply when writing the legislation. A conviction against a terror suspect in a military tribunal is no good if it is later overturned by the Supreme Court. Working together, we rose to the occasion and demonstrated it was possible to provide tools to the president, the Central Intelligence Agency and military to fight this vicious enemy and do so without abandoning our Geneva Convention obligations or national values. The major points of our legislation include: Protecting Bush's CIA program for high-value targets by allowing aggressive interrogation techniques - classified in nature - that will continue to yield good information protecting us from terrorists. We gave the CIA the clarity it needed regarding interrogation techniques and for the first time clearly defined what constitutes a grave breach of the Geneva Conventions. By accomplishing this goal, the CIA can move forward with its program in a manner consistent with our international obligations and our values. Prohibiting terror suspects and others from suing CIA agents or their families for doing their jobs. Establishing military tribunals in a manner consistent with our national values and demonstrating America is rendering justice, not vengeance. The military tribunal system protects our nation's secrets in an unprecedented manner while at the same time allowing defendants the ability to confront evidence against them. To do otherwise would run the serious risk of the Supreme Court rejecting our work. We achieved the correct balance between protecting ourselves in this war without setting a precedent that would jeopardize our troops in future wars. I'm pleased we rejected the effort to criminalize the war and applied the laws of armed conflict in a balanced manner. There is one other point on which much confusion exists. Even if a terrorist is acquitted by a military tribunal, that does not mean he or she will be released from military prison. [Terrorists] remain enemy combatants. The decision to release an enemy combatant is made by the Annual Review Board, which is already in operation at Guantanamo Bay, Cuba. I know al Qaida and the Taliban are barbarians. They target innocent men, women, and children and do not follow any laws of a just and civilized society. I also know this will not be the last war America fights. As a military lawyer I am well aware of how the Geneva Conventions have protected American [military personnel] in the past including conflicts in Somalia and Libya. One day in the future we may invoke the convention to protect someone such as a CIA paramilitary operative who falls into Iranian or North Korean hands while doing reconnaissance on nuclear programs. From the start I agreed with Bush on 90 percent of his proposed solution. However, on the remaining 10 percent, I had concerns that were shared by the highest-ranking admirals and generals in charge of our military legal system. I would not have been doing my job as your senator if I saw a problem with the president's proposal, which I did, and didn't work to address it in a constructive manner. I thought it was always a false choice to think we had to choose between good interrogation techniques, aggressive trials, and the Geneva Conventions. The legislation we passed showed it was possible to accomplish each of these objectives. After four years of legal starts and stops, I believe we can now put terrorists on trial and administer justice. From the beginning, Bush and I shared the same goal. Now I'm proud to say the president and a decisive majority in Congress agree on the path to get there. [ The writer is a Republican U.S. senator from Greenville. ] * TIME -- October 6, 2006 THE SECRET LETTER FROM IRAQ A Marine's letter home, with its frank description of life in "Dante's inferno," has been circulating through generals' in-boxes. We publish it here with the author's approval By a Marine Officer http://www.time.com/time/world/article/0,8599,1543658,00.html [ Written last month, this straightforward account of life in Iraq by a Marine officer was initially sent just to a small group of family and friends. His honest but wry narration and unusually frank dissection of the mission contrasts sharply with the story presented by both sides of the Iraq war debate, the Pentagon spin masters and fierce critics. Perhaps inevitably, the 'Letter from Iraq' moved quickly beyond the small group of acquantainaces and hit the inboxes of retired generals, officers in the Pentagon, and staffers on Capitol Hill. TIME's Sally B. Donnelly first received a copy three weeks ago but only this week was able to track down the author and verify the document's authenticity. The author wishes to remain anonymous but has allowed us to publish it here -- with a few judicious omissions. ] All: I haven't written very much from Iraq. There's really not much to write about. More exactly, there's not much I can write about because practically everything I do, read or hear is classified military information or is depressing to the point that I'd rather just forget about it, never mind write about it. The gaps in between all of that are filled with the pure tedium of daily life in an armed camp. So it's a bit of a struggle to think of anything to put into a letter that's worth reading. Worse, this place just consumes you. I work 18-20-hour days, every day. The quest to draw a clear picture of what the insurgents are up to never ends. Problems and frictions crop up faster than solutions. Every challenge demands a response. It's like this every day. Before I know it, I can't see straight, because it's 0400 and I've been at work for 20 hours straight, somehow missing dinner again in the process. And once again I haven't written to anyone. It starts all over again four hours later. It's not really like Ground Hog Day, it's more like a level from Dante's Inferno. Rather than attempting to sum up the last seven months, I figured I'd just hit the record setting highlights of 2006 in Iraq. These are among the events and experiences I'll remember best. Worst Case of Deja Vu -- I thought I was familiar with the feeling of deja vu until I arrived back here in Fallujah in February. The moment I stepped off of the helicopter, just as dawn broke, and saw the camp just as I had left it ten months before -- that was deja vu. Kind of unnerving. It was as if I had never left. Same work area, same busted desk, same chair, same computer, same room, same creaky rack, same... everything. Same everything for the next year. It was like entering a parallel universe. Home wasn't 10,000 miles away, it was a different life-time. Most Surreal Moment -- Watching Marines arrive at my detention facility and unload a truck load of flex-cuffed midgets. 26 to be exact. We had put the word out earlier in the day to the Marines in Fallujah that we were looking for Bad Guy X, who was described as a midget. Little did I know that Fallujah was home to a small community of midgets, who banded together for support since they were considered as social outcasts. The Marines were anxious to get back to the midget colony to bring in the rest of the midget suspects, but I called off the search, figuring Bad Guy X was long gone on his short legs after seeing his companions rounded up by the giant infidels. Most Profound Man in Iraq -- an unidentified farmer in a fairly remote area who, after being asked by Reconnaissance Marines if he had seen any foreign fighters in the area replied "Yes, you." Worst City in al-Anbar Province -- Ramadi, hands down. The provincial capital of 400,000 people. Lots and lots of insurgents killed in there since we arrived in February. Every day is a nasty gun battle. They blast us with giant bombs in the road, snipers, mortars and small arms. We blast them with tanks, attack helicopters, artillery, our snipers (much better than theirs), and every weapon that an infantryman can carry. Every day. Incredibly, I rarely see Ramadi in the news. We have as many attacks out here in the west as Baghdad. Yet, Baghdad has 7 million people, we have just 1.2 million. Per capita, al-Anbar province is the most violent place in Iraq by several orders of magnitude. I suppose it was no accident that the Marines were assigned this area in 2003. Bravest Guy in al-Anbar Province -- Any Explosive Ordnance Disposal Technician (EOD Tech). How'd you like a job that required you to defuse bombs in a hole in the middle of the road that very likely are booby-trapped or connected by wire to a bad guy who's just waiting for you to get close to the bomb before he clicks the detonator? Every day. Sanitation workers in New York City get paid more than these guys. Talk about courage and commitment. Second Bravest Guy in al-Anbar Province -- It's a 20,000 way tie among all these Marines and Soldiers who venture out on the highways and through the towns of al-Anbar every day, not knowing if it will be their last -- and for a couple of them, it will be. Worst E-Mail Message -- "The Walking Blood Bank is Activated. We need blood type A+ stat." I always head down to the surgical unit as soon as I get these messages, but I never give blood -- there's always about 80 Marines in line, night or day. Biggest Surprise -- Iraqi Police. All local guys. I never figured that we'd get a police force established in the cities in al-Anbar. I estimated that insurgents would kill the first few, scaring off the rest. Well, insurgents did kill the first few, but the cops kept on coming. The insurgents continue to target the police, killing them in their homes and on the streets, but the cops won't give up. Absolutely incredible tenacity. The insurgents know that the police are far better at finding them than we are -- and they are finding them. Now, if we could just get them out of the habit of beating prisoners to a pulp... Greatest Vindication -- Stocking up on outrageous quantities of Diet Coke from the chow hall in spite of the derision from my men on such hoarding, then having a 122mm rocket blast apart the giant shipping container that held all of the soda for the chow hall. Yep, you can't buy experience. Biggest Mystery -- How some people can gain weight out here. I'm down to 165 lbs. Who has time to eat? Second Biggest Mystery -- if there's no atheists in foxholes, then why aren't there more people at Mass every Sunday? Favorite Iraqi TV Show -- Oprah. I have no idea. They all have satellite TV. Coolest Insurgent Act -- Stealing almost $7 million from the main bank in Ramadi in broad daylight, then, upon exiting, waving to the Marines in the combat outpost right next to the bank, who had no clue of what was going on. The Marines waved back. Too cool. Most Memorable Scene -- In the middle of the night, on a dusty airfield, watching the better part of a battalion of Marines packed up and ready to go home after over six months in al-Anbar, the relief etched in their young faces even in the moonlight. Then watching these same Marines exchange glances with a similar number of grunts loaded down with gear file past -- their replacements. Nothing was said. Nothing needed to be said. Highest Unit Re-enlistment Rate -- Any outfit that has been in Iraq recently. All the danger, all the hardship, all the time away from home, all the horror, all the frustrations with the fight here -- all are outweighed by the desire for young men to be part of a band of brothers who will die for one another. They found what they were looking for when they enlisted out of high school. Man for man, they now have more combat experience than any Marines in the history of our Corps. Most Surprising Thing I Don't Miss -- Beer. Perhaps being half-stunned by lack of sleep makes up for it. Worst Smell -- Porta-johns in 120 degree heat -- and that's 120 degrees outside of the porta-john. Highest Temperature -- I don't know exactly, but it was in the porta-johns. Needed to re-hydrate after each trip to the loo. Biggest Hassle -- High-ranking visitors. More disruptive to work than a rocket attack. VIPs demand briefs and "battlefield" tours (we take them to quiet sections of Fallujah, which is plenty scary for them). Our briefs and commentary seem to have no affect on their preconceived notions of what's going on in Iraq. Their trips allow them to say that they've been to Fallujah, which gives them an unfortunate degree of credibility in perpetuating their fantasies about the insurgency here. Biggest Outrage -- Practically anything said by talking heads on TV about the war in Iraq, not that I get to watch much TV. Their thoughts are consistently both grossly simplistic and politically slanted. Biggest Offender: Bill O'Reilly. Best Intel Work -- Finding Jill Carroll's kidnappers -- all of them. I was mighty proud of my guys that day. I figured we'd all get the Christian Science Monitor for free after this, but none have showed up yet. Saddest Moment -- Having an infantry battalion commander hand me the dog tags of one of my Marines who had just been killed while on a mission with his unit. Hit by a 60mm mortar. He was a great Marine. I felt crushed for a long time afterward. His picture now hangs at the entrance to our section area. We'll carry it home with us when we leave in February. Best Chuck Norris Moment -- 13 May. Bad Guys arrived at the government center in a small town to kidnap the mayor, since they have a problem with any form of government that does not include regular beheadings and women wearing burqahs. There were seven of them. As they brought the mayor out to put him in a pick-up truck to take him off to be beheaded (on video, as usual), one of the Bad Guys put down his machinegun so that he could tie the mayor's hands. The mayor took the opportunity to pick up the machinegun and drill five of the Bad Guys. The other two ran away. One of the dead Bad Guys was on our top twenty wanted list. Like they say, you can't fight City Hall. Worst Sound -- That crack-boom off in the distance that means an IED or mine just went off. You just wonder who got it, hoping that it was a near miss rather than a direct hit. Hear it practically every day. Second Worst Sound -- Our artillery firing without warning. The howitzers are pretty close to where I work. Believe me, outgoing sounds a lot like incoming when our guns are firing right over our heads. They'd about knock the fillings out of your teeth. Only Thing Better in Iraq Than in the U.S. -- Sunsets. Spectacular. It's from all the dust in the air. Proudest Moment -- It's a tie every day, watching our Marines produce phenomenal intelligence products that go pretty far in teasing apart Bad Guy operations in al-Anbar. Every night Marines and Soldiers are kicking in doors and grabbing Bad Guys based on intelligence developed by our guys. We rarely lose a Marine during these raids, they are so well-informed of the objective. A bunch of kids right out of high school shouldn't be able to work so well, but they do. Happiest Moment -- Well, it wasn't in Iraq. There are no truly happy moments here. It was back in California when I was able to hold my family again while home on leave during July. Most Common Thought -- Home. Always thinking of home, of my great wife and the kids. Wondering how everyone else is getting along. Regretting that I don't write more. Yep, always thinking of home. I hope you all are doing well. If you want to do something for me, kiss a cop, flush a toilet, and drink a beer. I'll try to write again before too long -- I promise. * New York Times -- October 1, 2006 DETAINEE MEMO CREATED DIVIDE IN WHITE HOUSE By Tim Golden http://www.nytimes.com/2006/10/01/washington/01detain.html In June 2005, two senior national security officials in the Bush administration came together to propose a sweeping new approach to the growing problems the United States was facing with the detention, interrogation and prosecution of terrorism suspects. In a nine-page memorandum, the two officials, Gordon R. England, the acting deputy secretary of defense, and Philip D. Zelikow, the counselor of the State Department, urged the administration to seek Congressional approval for its detention policies. They called for a return to the minimum standards of treatment in the Geneva Conventions and for eventually closing the detention center at Guantanamo Bay, Cuba. The time had come, they said, for suspects in the 9/11 plot to be taken out of their secret prison cells and tried before military tribunals. The recommendations of the paper, which has not previously been disclosed, included several of the major policy shifts that President Bush laid out in a White House address on Sept. 6, five officials who read the document said. But the memorandum's fate underscores the deep, long-running conflicts over detention policy that continued to divide the administration even as it pushed new legislation through Congress last week on the handling of terrorism suspects. When the paper first circulated in the upper reaches of the administration, two of those officials said, it so angered Defense Secretary Donald H. Rumsfeld that his aides gathered up copies of the document and had at least some of them shredded. "It was not in step with the secretary of defense or the president," said one Defense Department official who, like many others, would discuss the internal deliberations only on condition of anonymity. "It was clear that Rumsfeld was very unhappy." The internal debate over detention issues that began within weeks after the terrorist attacks of Sept. 11, 2001, has come to light before. But interviews show that the struggle, pitting top officials against one another, intensified behind the scenes over the last year as criticism of the administration's approach grew in the United States and abroad. Crucial elements of that approach were struck down by the Supreme Court on June 29, forcing a resolution of disputes that had gone on for months. On one side of the fight were officials, often led by Vice President Dick Cheney, who said the terrorism threat required that the president have wide power to decide who could be held and how they should be treated. On the other side were officials, primarily in the State Department and the Pentagon, who portrayed their disagreement as pragmatic. They said the administration had claimed more authority than it needed, drawing widespread criticism and challenges in the courts. Those officials initially hailed the president's Sept. 6 announcement. Mr. Bush publicly discussed the Central Intelligence Agency's secret detention program for the first time, saying he had ordered its remaining 14 prisoners sent to Guantanamo and tried before military tribunals. The same day, Pentagon officials presented new directives that effectively renounced military use of highly coercive interrogation methods. But even as the White House negotiated with Congress in recent weeks, administration forces led by the vice president's office reasserted themselves. Officials said Mr. Cheney's staff and its bureaucratic allies -- having agreed reluctantly to the disclosure of the CIA operation and other changes -- were closely involved in guiding the talks with Republican senators. Their adversaries in the administration, meanwhile, had to scramble just to keep up with details of the bargaining. "Basically, they were left to get back whatever they could from Congress," one senior administration official said of the Cheney group. "And they did." In the end, the White House pressed Republican senators to accept a broad definition of "unlawful enemy combatants" whom the government can hold indefinitely, to maintain some of the president's control over CIA interrogation methods and to allow the government to present some evidence in military tribunals that is based on hearsay or has been coerced from witnesses. The administration did concede to the senators on some rules for military commissions, as the tribunals are called. It also backed off its effort to limit its obligations under the Geneva Conventions, but fought to ensure that government personnel would be immunized from prosecution for any treatment of detainees before the end of 2005 that was cruel, inhuman or degrading. Still, several officials said privately that the detainee legislation might fail to meet a primary goal of those inside the administration who had advocated change: quelling domestic and international criticism and moving past the federal lawsuits that have tied up parts of the detention apparatus since 2002. "There have been so many times when we thought we had broken through and turned things around, and then the forces on the other side kept charging back," said one administration lawyer who has supported such changes. Now, the official added, "even after what was supposed to be this major legislation to resolve these issues, we are going to be back at it." At the time the England-Zelikow memorandum was written, in mid-June 2005, several officials said they saw little enthusiasm for reconsidering the detention system that had been set up after 9/11, primarily by a small group of lawyers in the White House, the Justice Department and the Defense Department. That system had begun to come under increasing attack. An erroneous item in Newsweek magazine, about a Koran being flushed down a toilet at Guantanamo, led to violent demonstrations overseas. Criticism of the detention camp grew sharper in Europe. Some influential Republicans in Congress began to voice complaints as well. Mr. Zelikow, who served as staff director for the national commission that investigated the 9/11 attacks, joined the State Department in early 2005 with strong views on the detention issue, other officials said. Early on, he began to push the idea that high-level CIA captives held in connection with the 9/11 attacks should be brought to justice, these officials said. Mr. England took over as Mr. Rumsfeld's acting deputy in April 2005 while continuing to serve as secretary of the Navy. (He was confirmed as deputy secretary in April 2006.) He, too, had experience with the detainee issue, having spent months working to overhaul what many military officers saw as a flawed screening process for prisoners at Guantanamo. Two other officials who had worked extensively on detention issues during Mr. Bush's first term also participated in the drafting of the memorandum, officials said. One of them, Matthew C. Waxman, was Mr. Rumsfeld's chief aide for detainee issues. The other, John B. Bellinger III, was the State Department's legal counsel. The proposals in the paper were not entirely new. But what was different, one administration official said, was an effort at "a big-bang solution," to persuade senior officials or the president himself to adopt a comprehensive new approach to the detention problems of the policy. Failing that, officials said, the authors hoped to foster new debate about how to shape a strategy that would be more sustainable diplomatically, politically and in the federal courts. Three years after Mr. Bush had determined he would not apply the Geneva Conventions in fighting terrorists, the memorandum urged a return to the conventions' minimum standards, including the ban on "humiliating and degrading treatment" contained in the provision known as Common Article 3. The authors advocated that move not because they believed it was required by international law, officials said, but to win broader support from American allies and make court intervention less likely. The paper did not advocate abandoning the covert interrogation program, but restricting it to the shorter-term questioning of more important suspects, officials said. After repatriating many of the Guantanamo detainees, the authors argued, the detention center could be shut down and the remaining prisoners transferred to a long-term detention facility in the United States. They did not specify what kind of facility it should be, two of the officials who read the paper said. In a passage that underscored the views of Mr. Zelikow, one official said, the paper argued that efforts to bring to justice the perpetrators of the 9/11 attacks must produce more than the chaotic trial of Zacarias Moussaoui, the French-born militant who remains the only person to have been charged in an American court with involvement in the attacks. The paper specifically called for taking Khalid Shaikh Mohammed and others held by the CIA before military commissions, officials said, arguing that much of the information that would be disclosed by their trials was already widely known. Officials said the memorandum was well received by Secretary of State Condoleezza Rice, who forwarded it to senior officials at the National Security Council. But the hope that it would lead to a broader discussion of options within the administration was quashed by Mr. Rumsfeld, they said. Some of the defense secretary's ire over the paper appeared to be substantive, several Pentagon officials said. At various times, Mr. Rumsfeld raised objections to taking over responsibility for the CIA detainees, and he was reluctant to consider closing Guantanamo without a viable alternative in sight, the officials said. Most important, they said, Mr. Rumsfeld was angered that his new deputy, Mr. England, had worked on the memorandum with officials outside the Pentagon without his authorization. "England's wings got clipped after that," one Defense Department aide said. A spokesman for the department, Col. Gary L. Keck, said it would not discuss its deliberations on detainee policy or any "predecisional documents." But he denied that Mr. Rumsfeld was ever angered by those deliberations or instructed anyone to destroy documents. "This is a difficult and complex issue that has profound operational, diplomatic, legal and political implications not only for the Department of Defense, but for many other executive agencies," Colonel Keck said in a statement. "In any discussion on such an important topic there will be differences of opinion -- this is to be expected." In early August 2005, after a long internal debate, new rules for the Guantanamo military tribunals were published which did not include changes that many military lawyers had advocated. Officials said David S. Addington, who was then Mr. Cheney's counsel and is now his chief of staff, was prominent among those who opposed modifications like an explicit ban on evidence obtained by torture, contending that it would wrongly hint that the government had sanctioned torture at all. At the Pentagon, Mr. England continued to pursue the idea of adopting Common Article 3 of the Geneva Conventions in a directive that would set guidelines for prisoner treatment and interrogations. In late August, he called a meeting with some of the vice chiefs of staff of the armed forces and senior uniformed and civilian lawyers to consider the matter. According to officials who attended the meeting, several of those present spoke in favor of the Geneva provision, including the senior Army lawyer, Maj. Gen. Thomas J. Romig. In an unusual move, Mr. England called for a show of hands. All but two of those present endorsed the provision. But those two officials were among the most influential in the room: the department's under secretary for intelligence, Stephen A. Cambone, and its general counsel, William J. Haynes II. Their concerns, which were later echoed by aides to Mr. Cheney, started with the fact that the president had explicitly rejected the Geneva standard in February 2002. They also disputed the idea that Article 3 would necessarily give clear guidance to soldiers, citing what they called its vague prohibition on "outrages upon personal dignity." Debate over both the proposed prisoner-treatment directive and an Army field manual for interrogations would go on for another year. For the time being, though, the idea of adopting Common Article 3 directly as the standard of treatment went no further. There was little high-level discussion of alternatives to Guantanamo, several officials said. But the CIA's secret prisons had been a subject of rising concern since at least 2004, when unease over the open-ended detentions became evident within the agency and the Supreme Court ruled that detainees held by the United States at Guantanamo -- and, by implication, elsewhere around the world -- could challenge their detention in American courts. By late 2005, as reports in The Washington Post and other news media about the secret prisons raised a storm of complaints among foreign governments, the CIA began to move more quickly to transfer some captives to the custody of their own and other foreign governments, officials familiar with the program said. By the end of 2005, military lawyers also began to review the CIA's evidentiary files on the high-value detainees to consider their possible prosecution by the military commissions at Guantanamo. Ultimately, military officials concluded that they could make solid cases against the CIA prisoners without unduly exposing the agency's covert program or even having to depend heavily on statements that had been obtained during highly coercive interrogations, several officials said. There was also new pressure for action from within the CIA Intelligence officers involved in detention and interrogations were increasingly worried about the legal implications of the program, officials said. Some foreign governments had declined to house covert detention centers, and the furor over those sites created friction with other intelligence agencies, the officials said. Still, some senior figures in the administration, including Mr. Cheney and his chief of staff, Mr. Addington, remained unconvinced that the CIA program could be made public and its prisoners taken before military commissions while continuing to protect what they saw as a vital intelligence asset, several officials said. A spokeswoman for Mr. Cheney, Lea Anne McBride, said his office would have no comment on its role in policy deliberations, as did spokesmen for the State Department and the National Security Council. "The problem fell for some period of time into the too-hard category," one senior administration official said. "It fell so far into the too-hard category that it was lost from view." Interagency meetings on the detention issue with officials just below the cabinet level went around and around for months, officials said. In the late spring, they added, the president's national security adviser, Stephen J. Hadley, began pushing senior officials to agree on options they could present to the president. Many officials said the most important factor in forcing a new approach was the Supreme Court's ruling in June that the military commissions set up by the administration could not proceed. That decision, which also upheld the minimum Geneva standards of prisoner treatment as binding law, led the administration to seek Congressional authorization for new tribunals and, some officials said, left the CIA's interrogation program on even more tenuous ground. In late July, two officials said, Mr. Rumsfeld and his aides dropped their longstanding concerns about taking custody of the CIA detainees, and Mr. Hadley moved to approve the arrangements for their transfer to Guantanamo. The two officials said that Mr. Cheney was never entirely persuaded of the wisdom of emptying the CIA's detention sites and making its interrogation program public, but supported the move when Mr. Bush decided in late August to go ahead. "The vice president knows the president has made the right decisions to make Americans safer and support the men and women on the front lines in the war on terror who are fighting this brutal enemy," Mr. Cheney's spokeswoman, Ms. McBride, said. The element of the new legislation that raised the sharpest criticism among legal scholars and human rights advocates last week was the scaling back of the habeas corpus right of terrorism suspects to challenge their detention in the federal courts. But in dozens of high-level meetings on detention policy, officials said, that provision was scarcely even discussed. * TIME -- October 1, 2006 LETTING THE PRESIDENT SAY A new bill lets Bush define who is an enemy combatant and denies detainees habeas corpus By Michael Duffy http://www.time.com/time/magazine/printout/0,8816,1541282,00.html A few days after terrorists toppled the World Trade Center in 2001, Vice President Dick Cheney said the U.S. would have to "work ... the dark side" in order to destroy Osama bin Laden's network. Just what the dark side could mean became clearer last month when George Bush suddenly announced that 14 suspected al-Qaeda terrorists had been shipped from mysterious overseas locations to the U.S. detention center at Guantanamo Bay, Cuba. It was the first White House confirmation of a secret CIA-operated network of overseas prisons, places where unorthodox methods of interrogation were not unknown. "Were it not for this program," Bush said, referring to the secret prisons and the things done there, "al-Qaeda and its allies would have succeeded in launching another attack against the American homeland." When Congress adopted legislation last week to establish military commissions to try terrorist suspects, it also gave approval to that program and then some. By allowing coerced testimony to be entered as evidence in trials, Congress potentially legitimized torture as a means of obtaining information. It left the President in charge of filling in the details of what the allowable methods should be. The clearest limit to what might be done was actually not so clear. The new methods could not constitute "grave breaches" of the Geneva Conventions. But after all the huffing and puffing from Republican Senators John McCain, John Warner and Lindsey Graham, the Executive Branch kept control over what exactly could happen to an "enemy combatant." It was allowed to decide who an enemy combatant might be. The package of measures widened the definition to include any person determined to be one under criteria defined by the President or the Secretary of Defense. More than that, the measures adopted by Congress last week stripped defendants of the ancient habeas corpus right to challenge their detention in court--a step that makes it possible that the Supreme Court will strike down some portion of the law and send everybody back to the drawing board. "The Supreme Court has made clear on three recent occasions that those whom the White House labels enemy combatants are entitled to challenge their detention before a federal judge," says Eric Freedman, a law professor at Hofstra University who is a legal consultant to Guantanamo detainees. "This new law was passed in outright defiance of those rulings." What the legislation is likely to do even sooner is put the CIA's secret-prison program back online. That's right: back online. Although when he revealed its existence, the President left the impression he had suspended the program in response to a June Supreme Court ruling, that's not so. What neither he nor Congress nor the CIA has publicly acknowledged is that the agency halted the "special interrogations" in its secret prisons more than nine months ago. People briefed on the matter tell TIME that the agency backed away from its program in December 2005 as Congress passed an amendment to the 2006 defense bill banning "cruel, inhuman or degrading" treatment of prisoners in U.S. custody. According to other U.S. officials, then CIA Director Porter Goss feared that the amendment, sponsored by McCain, might undercut the legal authority for CIA interrogations. So Goss put those procedures on hold while seeking a legal opinion from the Justice Department. For the next nine months, says a person briefed on activity in the program, some at the agency developed a bias for killing its targets instead of bringing them in for questioning, though sources add that ground conditions make capture impossible anyway. Goss's suspension order left officers in the agency's directorate of operations, says the source, repeatedly asking the question, What are we going to do with these guys if we capture them? So far in 2006, as government sources and public reports indicate, few if any terrorist suspects have been captured by the CIA. But at least four--including bombmaker Abu Khabab al- Masri, on the FBI's most-wanted list--have been killed, in most cases by remotely fired missiles from Predator drones. The rules adopted last week may mean a return to the practice of capture and question. But question how? Just what interrogation methods are off the table now? Depends on whom you talk to. McCain, who along with Graham and Warner had fought the Administration on some of the most coercive methods, insisted to reporters last week that the harshest techniques--such as waterboarding, stress positions, extreme sleep deprivation and hypothermia--could now be illegal. "For all the gloating from the Administration," says Tom Malinowski of Human Rights Watch, "they are not getting what they want on torture." And what methods are O.K.? No one inside or outside the CIA will say. Which may mean we're going to be fighting on "the dark side" for some time to come. [ With reporting by Timothy J. Burger, Massimo Calabresi, and Adam Zagorin. ] * * *