=================================== NEWS DIGEST 2007.01.01 - 2007.06.04 =================================== Washington Post -- June 4, 2007 THE TORTURED LIVES OF INTERROGATORS Veterans of Iraq, N. Ireland and Mideast Share Stark Memories By Laura Blumenfeld http://www.washingtonpost.com/wp-dyn/content/ article/2007/06/03/AR2007060301121.html CHICAGO -- The American interrogator was afraid. Of what and why, he couldn't say. He was riding the L train in Chicago, and his throat was closing. In Iraq, when Tony Lagouranis interrogated suspects, fear was his friend, his weapon. He saw it seep, dark and shameful, through the crotch of a man's pants as a dog closed in, barking. He smelled it in prisoners' sweat, a smoky odor, like a pot of lentils burning. He had touched fear, too, felt it in their fingers, their chilled skin trembling. But on this evening, Lagouranis was back in Illinois, taking the train to a bar. His girlfriend thought he was a hero. His best friend hung out with him, watching reruns of "Hawaii Five-O." And yet he felt afraid. "I tortured people," said Lagouranis, 37, who was a military intelligence specialist in Iraq from January 2004 until January 2005. "You have to twist your mind up so much to justify doing that." Being an interrogator, Lagouranis discovered, can be torture. At first, he was eager to try coercive techniques. In training at Fort Huachuca, Ariz., instructors stressed the Geneva Conventions, he recalled, while classmates privately admired Israeli and British methods. "The British were tough," Lagouranis said. "They seemed like real interrogators." But interrogators for countries that pride themselves on adhering to the rule of law, such as Britain, the United States and Israel, operate in a moral war zone. They are on the front lines in fighting terrorism, crucial for intelligence- gathering. Yet they use methods that conflict with their societies' values. The border between coercion and torture is often in dispute, and the U.S. government is debating it now. The Bush administration is nearing completion of a new executive order setting secret rules for CIA interrogation that may ban waterboarding, a practice that simulates drowning. Last September, President Bush endorsed an "alternative set of procedures," which he described as "tough," for questioning high-level detainees. And in Iraq last month, Gen. David H. Petraeus, the top U.S. commander, warned troops that the military does not sanction "torture or other expedient methods to obtain information." The world of the interrogator is largely closed. But three interrogators allowed a rare peek into their lives -- an American rookie who served with the 202nd Military Intelligence Battalion and two veteran interrogators from Britain and Israel. The veterans, whose wartime experiences stretch back decades, are more practiced at finding moral balance. They use denial, humor, indignation. Even so, these older men grapple with their own fears -- and with a clash of values. That clash, said Darius Rejali, a political scientist who has studied torture and democracy, can torment interrogators: "Nothing is more toxic than guilt, which is typical with democratic interrogators. Nazis, on the other hand, don't have these problems." For Lagouranis, problems include "a creeping anxiety" on the train, he said. The 45-minute ride to Chicago's O'Hare airport "kills me." He feels as if he can't get out "until they let me out." Lagouranis's voice was boyish, but his face was gray. The evening deepened his 5 o'clock shadow and the puffy smudges under his eyes. Not long ago in Iraq, he felt "absolute power," he said, over men kept in cages. Lagouranis had forced a grandfather to kneel all night in the cold and bombarded others in metal shipping containers with the tape of the self-help parody "Feel This Book: An Essential Guide to Self-Empowerment, Spiritual Supremacy, and Sexual Satisfaction," by comedians Ben Stiller and Janeane Garofalo. ("They hated it," Lagouranis recalled. "Like, 'Please! Just stop that voice!' ") Now Lagouranis's power had dissolved into a weakness so fearful it dampened his upper lip. Sometimes, on the train, he has to get up and pace. But he can't escape. An Island in the Mediterranean James, an amiable man with a red-to-white beard, shook his head when told of Lagouranis: "He's full of self-pity." James, 65, was one of Britain's most experienced interrogators in Northern Ireland. Starting in 1971, James said, he worked for the Special Branch of the Royal Ulster Constabulary (RUC), interrogating Irish nationalists Gerry Adams, Bobby Sands and others whom the British government suspected of being terrorists. Peter Taylor, a leading historian of the conflict in Northern Ireland, said he believes that "James's account is entirely credible." Late one night in 1993, three Irish Republican Army gunmen crept up to James's door. "They came to get me," James said. Given a 20-minute warning following a tip to the RUC, he and his wife escaped, ultimately to an island in the Mediterranean. James agreed to talk if his last name and location were withheld. "They haven't a clue I'm here." Driving along winding, stony roads, past goats and grapevines, James had this advice for Lagouranis in Chicago: "You've got to get up and get on with it -- that's what we did." James had had no training, but the 18-hour days that made his neck ache taught him what he needed: good rapport, good intelligence, great fear. "Yes, a bloke would get a cuff in the ear or he might brace against the wall. Yes, they had sleep deprivation," he said. "But we did not torture." Once, IRA leader Brendan Hughes claimed that James had cocked a gun to his head. James does not deny it. "You fight fire with fire," he said, the memory igniting his blue eyes. He noted that the sectarian killings dropped off: "If it's going to save lives, you're entitled to use whatever means you can." How do you fight bad guys and stay good? "You don't. You can't." The only interrogation James regrets was of Patrick McGee, under arrest for IRA activity. McGee did not crack, which meant he would go free. As McGee walked out, "he just stared at you," James recalled. "Evil was hanging out of him." James spat in his face. "He never even blinked. It was not satisfying, it was humiliating. I lost my cool." James stopped his car at the edge of the ocean. According to Greek mythology, a god frolicked on this beach. Vacationers drank iced coffee and oiled the air with coconut lotion. But James seemed to be somewhere else, cloudy and turbulent, in his head. "My friend once saw a guy planting a bomb," he said. He laughed. "My friend tied a rope around the guy's ankle, and made him defuse it. Now t hat's how to deal with a ticking bomb." Chicago, 8 p.m. "All of Iraq was a ticking time bomb," Lagouranis said, downing his fourth of seven beers. He had joined the Army before 9/11 to learn Arabic. He didn't expect to go to war. He was sitting on a night off at the California Clipper bar, where he works as a bouncer. The bartender joked that Lagouranis should be tougher on customers: "You should 'go Abu Ghraib.' " At Iraq's Abu Ghraib prison, the site of the 2003-04 abuse scandal, Lagouranis used to relax in the old execution chamber. He and a friend would sit near the trapdoor and read the Arabic scratched into the wall. They found a dirty brown rope. It was the hangman's noose. "If there is an evil spot in the world, that was one of them," Lagouranis said. At Abu Ghraib and sometimes at the facilities in Mosul, north Babil province and other places where Lagouranis worked, the Americans were shot at and attacked with mortar fire. "Then I get a prisoner who may have done it," he said. "What are you going to do? You just want to get back at somebody, so you bring this dog in. 'Finally, I got you.' " Lagouranis's tools included stress positions, a staged execution and hypothermia so extreme the detainees' lips turned purple. He has written an account of his experiences in a book, "Fear Up Harsh," which has been read by the Pentagon and will be published this week. Stephen Lewis, an interrogator who was deployed with Lagouranis, confirmed the account, and Staff Sgt. Shawn Campbell, who was Lagouranis's team leader and direct supervisor, said Lagouranis's assertions were "as true as true can get. It's all verifiable." John Sifton, a senior researcher for Human Rights Watch, said the group investigated many of Lagouranis's claims about abuses and independently corroborated them. "At every point, there was part of me resisting, part of me enjoying," Lagouranis said. "Using dogs on someone, there was a tingling throughout my body. If you saw the reaction in the prisoner, it's thrilling." In Mosul, he took detainees outside the prison gate to a metal shipping container they called "the disco," with blaring music and lights. Before and after questioning, military police officers stripped them and checked for injuries, noting cuts and bumps "like a car inspection at a parking garage." Once a week, an Iraqi councilman and an American colonel visited. "We had to hide the tortured guys," Lagouranis said. Then a soldier's aunt sent over several copies of Viktor E. Frankel's Holocaust memoir, "Man's Search for Meaning." Lagouranis found himself trying to pick up tips from the Nazis. He realized he had gone too far. At that point, Lagouranis said, he moderated his techniques and submitted sworn statements to supervisors concerning prisoner abuse. "I couldn't make sense of the moral system" in Iraq, he said. "I couldn't figure out what was right and wrong. There were no rules. They literally said, 'Be creative.' " Lagouranis blames the Bush administration: "They say this is a different kind of war. Different rules for terrorists. Total crap." Tel Aviv "You have to play by different rules," the Israeli interrogator told an American visitor. "The terrorists want to use your own system to destroy you. What your president is doing is right." The Israeli, who spoke on condition that he be identified by his code name, Sheriff, recently retired as chief of interrogations for Shin Bet, Israel's security service, which is responsible for questioning Palestinian terrorism suspects. The former head of the service, Avi Dichter, and the former chief terrorism prosecutor, Dvorah Chen, called Sheriff "the best." "To persuade someone to confess feels better than beating him up," Sheriff said. "It's a mental orgasm." Sheriff is short and chubby, with thin, reddish skin that turns yellow in the folds when he furrows his brow. He keeps an electric razor in his car so he can shave his head while driving. He wears a cap from the Kentucky Department of Homeland Security. "Interrogation is a beautiful world," Sheriff said. When Sheriff's 2-year-old was sick and his wife couldn't be at home, he brought the toddler to work and laid him in an interrogation room, on a mattress on the floor: "I put the phone next to the baby and said, 'When you want Daddy, push this button.' " Another interrogator walked in and exclaimed, "My suspect shrank!" For Sheriff, interrogation was more psychological than physical. He used flattery on Palestinians who put bombs under playground benches: "You say, 'Hey! Wow! How did you connect these wires? Did you manufacture this explosive? This is good!' " He played good cop, and bad: "One day I was good. Next day I was bad. The prisoner said, 'Yesterday you were good. What happened today?' I told him we were short on manpower." Sheriff hugged his suspects, he said, poured them tea and kissed their cheeks. As his former boss, Dichter, put it: "You try to become friends with someone who murdered a baby. That's your job. It's the most difficult feeling." When he came home, Sheriff said, his wife would make him change. "You could smell the guy on your shirt." But when the pressure mounted for intelligence, Sheriff said, the best method was "a very little violence." Enough to scare people but not so much that they'd collapse. Agents tried it on themselves. "Not torture." Sometimes a prisoner would accuse Sheriff of torture. He tried to shift the moral burden by blaming the prisoner: "I would tell him this: 'I'm sorry. We prefer it the nice way. You leave us no choice.' " Chicago, 10:15 p.m. Lagouranis apologized to his prisoners, too. "Two brothers, they could've died because we were inducing hypothermia," he said. As Lagouranis was leaving Abu Ghraib, he told one of the brothers: " 'I'm sorry. I'll always consider you a friend,' He gave me a look -- he probably wanted to kill my entire family. I spent a lot of time torturing him, but also talking." "I could see you trying to comfort him," said Amy Johnson, Lagouranis's girlfriend, sitting at the bar. Johnson likes Lagouranis, she said, because he is gentle. She was also attracted by the mystery of his job, although she'd never heard the details, until this night. The scars on his ankles from sand-flea bites were visible. Of the unseen scars, Johnson said, "I'm afraid to ask." "That's the most confusing thing -- people don't hate me," he said. "But you're trying to fight the bad guys," she said. She knows he is haunted. He got an honorable discharge after a diagnosis of "adjustment disorder." He startles awake, she said: "Last night you had a dream --" "I never saw a ghost in Abu Ghraib," he said. "But I saw a ghost last night. It was me." "Seeing innocent people being tortured is hard," she said. "Not the things I saw, but the things I did. You keep saying 'torturing the innocent,' but the two brothers I tortured were guilty. It doesn't mean you should torture them." Johnson said nothing. She twisted her hair up into a knot. Lagouranis kept talking, this time about his Gerber knife with the black handle and five-inch blade: "I'd been interrogating this guy all night." But the prisoner, unafraid, looked Lagouranis in the eye. "I had this idea --" "That he was guilty?" she said. "No, at worst he smuggled a can of benzene. It was pure insanity. I wanted to take out my Gerber knife and chop off his fingers." Johnson blanched, pressed her fingers against her lips. "I don't know if I comprehend it," she said. "It's not a good place to go." A Tel Aviv Suburb The best place to go to unwind, Sheriff said, was the municipal garbage dump. After work, he'd set up a beach chair on top of the landfill, under the Israeli sun. Now Sheriff was high up on the dump, safe from vindictive prisoners, boiling water on a portable gas burner to make some tea. "Sugar?" he offered. Sheriff stretched, relaxed. "I've got a clean conscience because I rarely use it." Israeli society, however, has been conflicted. After more than a decade of debate in legal and security circles, the Supreme Court ruled in 1999 that torture is illegal. Sheriff's concerns, however, aren't legal, they're mortal. He carries a Beretta. In cafes, he faces the door. He ran into a former subject -- "a bit scary" -- knocking on the window of his car. For all his bravado, quips and denials, Sheriff is afraid to have his full name published. "I would not like to die in pain." An Island in the Mediterranean Pain, for James -- the interrogator tucked away on a Mediterranean island -- was what made the attempt on his life so frightening. The IRA had shot his partner in the heart, he said, but when the gunmen came for him, they brought a sledgehammer. "They would have tortured me and extracted information," James said. Britain, like Israel, reformed its interrogation practices. In 1979, the British government acknowledged that Northern Ireland police had mistreated IRA suspects. It introduced restrictions. "Every time they changed the rules, it was to benefit murdering terrorists," James said, grinding the word "terrorists" with his teeth. "We got no protection. Next we'll be tried as war criminals." Even today, James bolts awake when the wind knocks over a plant. His wife said, "One night I woke up, and his hands were around my throat, shaking me. I said, 'What are you doing?' He said, 'There are people in the house.' " James misses his Irish garden. Give him a few brandies and he'll wistfully sing "The Fields of Athenry." His eyes turned red and watery as he said, "The people of Northern Ireland will never know how many lives were saved." Worse yet, the people he interrogated "are now running the bloody country." They used to glare, with "venomous looks," and say in Gaelic, "Our day will come." Chicago, 11:50 p.m. Lagouranis stares at their faces when he cannot sleep. He stole a CD with pictures of the prisoners he interrogated in north Babil. He ponders the brown- skinned men with mustaches: "This guy looted an American supply truck. He was waterboarded by a Marine." Click. "That guy was old as dirt. I don't know why he was there." Click. "This guy -- you can see the contusions around his head." Click. Alone in his apartment, awake most nights, he sits in rumpled jeans and desert combat boots, throwing his Gerber knife at his coffee table. Dirty clothes and beer cans litter the floor. His refrigerator is bare, but his footlocker is full of empty bottles of pills the military doctors prescribed for anxiety. "It feels like fear. Of what? I'm not sure," Lagouranis said. "You know what I think it is? You don't know if you'll ever regain a sense of self. How could Amy love me? I used to have a strong sense of morals. I was on the side of good. I don't even understand the sides anymore." Next to a mattress on the floor where he sleeps hang his dog tags. Beside it, in the closet, lies a thick brown rope. He has tied it into a noose. Staff researcher Julie Tate in Washington contributed to this report. * Miami Herald -- May 18, 2007 LAWYER GETS 6 MONTHS FOR SPILLING SECRETS By Carol Rosenberg http://www.miamiherald.com/459/story/111474.html NORFOLK, Va. -- A military jury Friday sentenced a Navy lawyer to six months in prison followed by dismissal from service for mailing a classified list of Guantanamo detainees to a New York human rights firm inside a Valentine's Day card. Lt. Cmdr. Matthew Diaz, 41, was convicted a day earlier of spilling national security secrets while posted at the Pentagon's war-on-terror detention center in January 2005. A JAG officer, Diaz, told the jurors earlier that he was "ashamed" of his behavior, but believed that the New York Center for Constitutional Rights was entitled to know the names of foreigners held in indefinite detention at the remote U.S. Navy base in southeast Cuba. The jurors deliberated for three hours and 15 minutes on the sentence, 15 minutes longer than it took them to convict him of four crimes that could have been punishable by a 14-year prison sentence. The jury of naval officers also cut him a break by recommending that while he is serving his six months in the brig his family can continue to receive his $6,834 monthly salary. Diaz left the courtroom at Norfolk Naval Station with tears glistening in his eyes. "I'm very, very happy with the results," he said. At the trial's end Thursday, the prosecutor told the court-martial that Diaz knew the list was classified after a six-month assignment there and was acting out a personal agenda. "It wasn't by accident. It was deliberate, with purpose. It brings dishonor and disgrace on him," said Cmdr. Rex Guinn. He cast the Valentine as "a card that contained the nation's secrets" in part because it contained coded serial numbers for each detainee that Guantanamo's intelligence chief testified at the trial reflected "sources and methods." The list that Diaz mailed inside the Valentine was never made public. Instead, lawyers at the New York law center founded to defend Martin Luther King Jr. turned it over to a federal court, which in turn alerted the FBI and tracked the list back to Diaz using computer forensics and fingerprinting. Diaz gave emotional testimony during the sentencing hearing portion of his weeklong court martial, apologizing for his actions. "The prosecutors were right: I'm a meticulous man. I should have done better. It was extremely irrational for me to do what I did," Diaz said. [ crosenberg@MiamiHerald.com ] * Dallas Morning News -- May 18, 2007 'MORAL DECISION' JEOPARDIZES NAVY LAWYER'S CAREER Officer says he leaked list of terror suspects in the name of justice; now convicted, he could face prison term By Brooks Egerton [ begerton@dallasnews.com ] http://www.dallasnews.com/sharedcontent/dws/news/nation/ stories/051807dnproguantanamo.7b28e8e1.html NORFOLK, Va. -- Matt Diaz was a Navy lawyer with 18 years of military experience when duty called at Guantanamo Bay, Cuba. Six months there broke him. Now, in a case that reflects the fierce dissent within the U.S. government over the war on terrorism, the lieutenant commander faces a court-martial that could send him to prison for at least 14 years. A jury convicted him late Thursday, and the sentencing phase of the case is set to begin Friday. Cmdr. Diaz is on trial because of actions he took after concluding -- as many of higher rank have -- that the Bush administration's offshore detention camp for terrorism suspects was making a mockery of American justice. "My oath as a commissioned officer is to the Constitution of the United States," Cmdr. Diaz told The Dallas Morning News in his first public comments on the case. "I'm not a criminal." In early 2005, as he was concluding a six-month tour of duty as a Guantanamo legal adviser, Cmdr. Diaz sent an anonymous note to a New York civil liberties group containing the names of the detainees. The Center for Constitutional Rights earlier had won a U.S. Supreme Court ruling that terrorism suspects had the right to challenge their detention. But the Pentagon was refusing to identify the men, hampering the group's effort to represent them. "I had observed the stonewalling, the obstacles we continued to place in the way of the attorneys," the 41-year-old officer said. "I knew my time was limited. ... I had to do something." In doing so, the government contends, Cmdr. Diaz committed a variety of crimes, including disobeying regulations and transmitting secret defense information that "could be used to the injury of the United States or to the advantage of a foreign nation." The jury convicted him on four of five counts. Prosecutors have declined to comment on the case. But in court, they have argued that some of the released material could have led to discovery of "intelligence sources and methods." Defense attorneys have tried to raise doubt about whether the leaked material really was classified. Patrick McLain, an ex-Marine and military law expert from Dallas who is leading the Diaz defense team, predicted the government wouldn't convince the seven-man jury on the one point that could bring a long prison term: that his client deliberately endangered national security. Here, "the government's case is circumstantial," he said. ONUS ON GOVERNMENT The judge has barred the defense from explaining its client's motives, and Cmdr. Diaz did not testify during the trial's guilt-innocence phase. But in an hourlong interview after the opening day of trial Monday, Cmdr. Diaz laid out his reasoning. What is illegal, he said, is the Bush administration's prosecution of the war on terror. He accused officials of violating international law, such as the Geneva Conventions on the humane treatment of war prisoners, and the Constitution's guarantee of due process. "I made a stupid decision, I know, but I felt it was the right decision, the moral decision, the decision that was required by international law," Cmdr. Diaz said. "No matter how the conflict was identified, we were to treat them in accordance with Geneva, and it just wasn't being done." The Defense Department strenuously rejects such talk. "Detention of enemy combatants in wartime is not criminal punishment and therefore does not require that the individual be charged or tried in a court of law," Daniel Dell'Orto, a top Pentagon lawyer, testified recently before the Senate Armed Services Committee. "It is a matter of security and military necessity that has long been recognized as legitimate under international law." Nonetheless, Defense Secretary Robert Gates and Secretary of State Condoleezza Rice have quietly recommended that President Bush close Guantanamo, according to The New York Times. Prominent ex-military men also are publicly urging reform. "The way we have dealt with detainees risks blemishing the reputation of this great country for generations to come," retired Rear Adm. John Hutson testified before the Senate panel. A CARD WITH 550 NAMES The case against Cmdr. Diaz began in 2005 shortly after Barbara Olshansky, a lawyer at the Center for Constitutional Rights, received a Valentine's Day card, bearing the picture of a long-eared, droopy-eyed dog and a Guantanamo postmark. Inside were computer printouts, reduced to fit the card, containing the names and other identifying information on the approximately 550 detainees then at Guantanamo. Cmdr. Diaz said he took these steps to lessen the chance that the material would be intercepted by the military before it left the island. Ms. Olshansky had never communicated with the commander, according to testimony, but suspected that she had received the names she'd been seeking through official channels. Court officials overseeing the center's Guantanamo litigation verified her suspicions and alerted the FBI. Fingerprints and computer sleuthing eventually led to Cmdr. Diaz in Florida, where his next assignment had taken him. While the investigation was unfolding, much identifying information about the detainees became public -- but not because of the center's continuing litigation. Instead, The Associated Press won a Freedom of Information Act lawsuit against the government when a U.S. district judge ruled that the Guantanamo prisoners' names were public. When asked why the government pressed on with its criminal case against Cmdr. Diaz, Navy spokeswoman Beth Baker said, "I can't give you a philosophical answer." But she stressed that the allegations against him constituted "an offense in the Uniform Code of Military Justice." Cmdr. Diaz said he now believes it was "cowardly" to release the names and other identifying information the way he did. "I was more concerned about damaging my career," said the high school dropout, who got his GED and law degree while in the military. "Obviously I chose the wrong path because here I am -- my career is in jeopardy, serious jeopardy, much more serious jeopardy than it would have been if I had raised the issue to my chain of command." OTHERS FOUGHT SYSTEM Cmdr. Diaz is not the first member of the military legal system to face trouble for challenging conditions at Guantanamo. In his interview with The News, he recalled two prosecutors who "objected to the way the system was set up to guarantee a conviction. I don't believe they lasted long ... they didn't make it to the first hearings." One of the best-known Guantanamo rebels is another Navy lieutenant commander, Charles Swift. He was assigned to represent Salim Hamdan, who admitted working as Osama bin Laden's driver while in Afghanistan but denied fighting or being an al-Qaeda member. Cmdr. Swift alleged that prosecutors told him he couldn't get access to his client unless he agreed in advance to negotiate a guilty plea for him. Cmdr. Swift refused and sued the government, resulting in the landmark 2006 U.S. Supreme Court decision that threw out the Guantanamo military tribunal system. "The environment at Guantanamo is poisonous," Cmdr. Swift told The News. "I've watched colleagues and people who are close friends, people I have the utmost respect for, just ground down by this." He counts Matt Diaz among them. The two shared some military legal training, and he worked with Cmdr. Diaz to coordinate his visits with Mr. Hamdan. "I am struck somewhat that I'm a hero and Matt is facing jail," Cmdr. Swift said, noting that he's not familiar with the specifics of the Diaz case. "If a mistake was made, it doesn't take this." Another casualty of the Guantanamo system is that criminal cases may collapse. Marine Lt. Col. Stuart Couch, for example, recently told The Wall Street Journal that he had given up on prosecuting a prisoner he believed had strong ties to 9/11 after concluding that the man had been tortured. Such big fish are rare in the detention camp, according to research by Seton Hall Law School. It concluded, based on government documents obtained in litigation, that about half the detainees were noncombatants. Bush administration officials have characterized the Guantanamo population overall as "the worst of the worst." That is one of "two misstatements, or false statements, that occurred about Guantanamo," Cmdr. Diaz said. "The other statement was 'We do not torture.' " One of his jobs at Guantanamo, he said, was to track and investigate allegations of abuse. "I think a good case could be made for allegations of war crimes, policies that were war crimes," he said. "There was a way to do this properly, and we're not doing it properly." FATHER ON DEATH ROW If he ends up in prison, Cmdr. Diaz, in a sense, will be joining his father. Robert Diaz, a former nurse, has been on California's death row since 1984, convicted of killing 12 patients under his care at rural hospitals. The elder Mr. Diaz had no prior record and has always maintained his innocence. According to news reports, he faced a largely circumstantial case with questionable medical evidence and an ill-equipped public defender who talked him into a nonjury trial -- an extremely unusual tactic in a capital punishment case. He "never received anything even close to a fair trial," a 1994 San Francisco Chronicle investigation concluded. "My daughter is 15," Cmdr. Diaz said. "She's pretty much in the same position I was when I observed this happen with my dad -- just observing the injustice." None of that, however, dims "my love of country and love of the law and the Constitution and the founding principles of this country," Cmdr. Diaz said. "That forms the core of who I am." { --- SIDEBAR BEGINS --- } Timeline 2002: * The U.S. military establishes a detention camp at Guantanamo Bay, Cuba, for terrorism suspects captured abroad after the Sept. 11 attacks. Hundreds are held incommunicado, without charge or legal counsel. * The Center for Constitutional Rights, a legal and human rights advocacy group in New York, files suit challenging the detention of three prisoners at Guantanamo. Lower courts rule the prisoners have no right to pursue legal action. 2004: * The U.S. Supreme Court rules for the Center, saying that the prisoners do have the right to challenge their detention in U.S. courts. * Defense lawyers not associated with the Center challenge the constitutionality of military proceedings that decide - without following U.S. civilian court standards - whether prisoners are enemy combatants or have committed war crimes. The lawyers represent Salim Hamdan, who worked as a driver for Osama bin Laden in Afghanistan but denies fighting or being a member of al Qaeda. * Navy Lt. Commander Matthew Diaz is assigned to the Guantanamo legal affairs office. Part of his job is to coordinate visits by defense attorneys. * The Center seeks the names of all the Guantanamo detainees. The Pentagon refuses. 2005: Commander Diaz anonymously mails the names of Guantanamo prisoners to Barbara Olshansky, a Center lawyer. She consults with court officials overseeing Center litigation. Concerned about the possible ramifications of having illegally obtained the names, the Center alerts the FBI, which eventually focuses on Diaz as the leaker. * Congress passes a law barring Guantanamo prisoners from challenging their detention. 2006: * A U.S. district judge rules that the Guantanamo prisoners' names are public, as The Associated Press argued in a Freedom of Information Act suit. * The Navy proceeds with its prosecution of Commander Diaz. * The U.S. Supreme Court rules in the Hamdan case that the system of military proceedings is unconstitutional. Congress creates a new system. 2007: * The first war-crimes prosecution at Guantanamo is completed. Australian David Hicks pleads guilty to aiding terrorists in Afghanistan in exchange for a nine- month sentence, to be served largely in his home country. * Guantanamo officials accuse defense lawyers of creating security risks by providing clients news of the outside world and by gathering information for journalists. The officials propose various restrictions, such as monitoring attorney-client mail and denying lawyers access to some evidence. * Commander Diaz's court-martial begins in Norfolk, Va. SOURCES: Dallas Morning News research; news reports { --- SIDEBAR ENDS --- } * The Wall Street -- May 17, 2007 POLITICS & ECONOMICS: TESTIMONY PUTS COMEY IN SPOTLIGHT --- APPEARANCE AT GONZALES HEARING SPURS TALK OF FUTURE ROLE by Jess Bravin Washington -- For years, when President Bush's Justice Department needed a credible and charismatic face for its most controversial policies, it turned to James Comey, the 6-foot-8 deputy attorney general known for his disarming chuckle and impeccable reputation. That fact is what makes Mr. Comey's dramatic Senate testimony this week such bad news for his former boss, Attorney General Alberto Gonzales. Mr. Gonzales has been clinging to his post with the support of President Bush but few others. Mr. Comey's manner and the depth of his testimony also heightened speculation about his own future, possibly as attorney general or even a political candidate, even though he has denied interest in running for office. Sen. Charles Schumer (D., N.Y.), who presided over Tuesday's hearing, says that Mr. Comey, a Republican, should be on the short list for attorney general even under a future Democratic president. Mr. Comey, who left the government in 2005 to become general counsel of Lockheed Martin Corp., stunned Washington on Tuesday with his account of a March 2004 confrontation with Mr. Gonzales, then White House counsel, in the hospital room of an incapacitated Attorney General John Ashcroft. Mr. Comey, as acting attorney general, had refused to certify the president's domestic surveillance program as lawful. "I was concerned that this was an effort to do an end run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded" was unsupportable, Mr. Comey testified. The story "sort of poured out of him," when a Senate staffer last week asked him about the hospital incident, the outlines of which were publicly known, in preparation for the hearing, Sen. Schumer says. "It was clear he had been carrying around this burden for a long period of time," he says, "but he made it clear he was not going to tell anybody this [publicly] unless he was required to, and he only wanted to do it his way." Mr. Gonzales remains pressured amid allegations that his department fired a number of U.S. attorneys for political reasons. Mr. Comey's account pushed a third Republican senator, Nebraska's Chuck Hagel, to call for Mr. Gonzales's resignation. Mr. Gonzales "has lost the moral authority to lead," Mr. Hagel said in a statement. In Washington, holders of high-level offices such as the Justice Department's No. 2 job are keenly aware that political sensitivities matter greatly. By contrast, one senior Justice Department official recalls, Mr. Comey, a 46-year- old father of five, "marches to his own drummer." But while his charm won over many staffers and journalists, some administration officials considered him "tin eared" to the administration's political agenda, the senior official says. "There's always been a rap on him that he wasn't a team player," says Mark Corallo, who headed Justice Department public affairs under Mr. Ashcroft. "But in retrospect, now that I realize what was going on, I say, 'Thank God.' " Nevertheless, Mr. Comey's high profile could raise concerns for his current employer. Lockheed derives most of its revenue from the federal government. "Big defense contractors always dislike getting caught up in political battles that are unrelated to their business," says Loren Thompson, a military analyst at the Lexington Institute think tank, although he notes with Democrats on the rise, "I don't see how this could hurt Lockheed." In any event, the industry seems to think top talent may be worth risking controversy. Last year, Boeing Co. hired as its general counsel former U.S. Circuit Judge J. Michael Luttig, a prominent conservative who questioned government conduct in a high-profile case involving the so-called dirty bomber, Jose Padilla. A Lockheed spokesman declined to comment on Mr. Comey, beyond a written statement that "Jim exemplifies the ethical principles and values-based culture championed by Lockheed Martin." Mr. Comey, who hails from Yonkers, N.Y., made his name as a tough federal prosecutor in Manhattan, taking on white-collar fraudsters and organized crime -- and developing a close friendship with another assistant U.S. attorney, Patrick Fitzgerald, as they prosecuted members of the Gambino crime family. As deputy attorney general, Mr. Comey appointed Mr. Fitzgerald as a special prosecutor to investigate the leak of covert agent Valerie Plame's identity -- a case that led to the conviction of Vice President Dick Cheney's chief of staff, Lewis "Scooter" Libby. Mr. Comey first came to Mr. Ashcroft's attention in the spring of 2001, after he was tapped to take over the slow-moving investigation of the 1996 Khobar Towers bombing, which killed 19 U.S. airmen in Saudi Arabia. In June that year, Mr. Comey obtained a grand jury indictment accusing 13 members of the Iranian-backed terrorist group Hezbollah in the bombing. After the Sept. 11 terrorist attacks, Mr. Ashcroft brought Mr. Comey to Washington to help run the investigation. That experience solidified a bond between the men, both graduates of the University of Chicago law school, Mr. Corallo says. "Ashcroft got to measure the man up close," Mr. Corallo says. Mr. Ashcroft, through a spokeswoman, declined to comment. In 2002, President Bush named Mr. Comey as U.S. attorney for the Southern District of New York, after Sen. Schumer objected to a candidate backed by the state's Republican governor. The district, which includes Manhattan, often prosecutes some of the biggest crimes, and Mr. Comey burnished his reputation with high-profile prosecutions of white-collar crimes, including the case involving entrepreneur homemaker Martha Stewart. The district also was home to the grand jury investigating 9/11, and while some civil-liberties advocates criticized Mr. Comey's aggressive prosecutions, his tough antiterrorist stance further pleased the attorney general. His management style also endeared him to most of his staff, both political appointees and career employees. Mr. Comey has a "tremendous personal touch and a great sense of humor," says Patrick Philbin, who handled national-security matters in the deputy attorney general's office. Mr. Philbin, Mr. Comey disclosed in his testimony, was with him in Mr. Ashcroft's hospital room when the confrontation occurred. Mr. Comey testified that as a result of siding with him on the wiretap issue, Mr. Philbin had been "blocked from promotion." Mr. Philbin, now in private practice, was denied appointment as principal deputy solicitor general after objections from Vice President Cheney and his counsel, David Addington, a person familiar with the matter says. The vice president's office declined to comment. Mr. Philbin also declines to comment on the matter, but says of Mr. Comey, "if there's a crisis, and you want somebody in your foxhole, Jim is the guy you want in your foxhole." And it was that reputation that the department relied on during Mr. Comey's tenure, says Mr. Corallo, the former public-affairs chief. Mr. Comey received such difficult assignments as justifying the years-long detention without charge of U.S. citizen Mr. Padilla. (Mr. Padilla currently is on trial in federal court in Miami on lesser charges of supporting terrorism. He has pleaded not guilty.) Mr. Comey "was very good on television," Mr. Corallo says. "One of my jobs, when we needed to make the department's position public, was to pick the right people to go out and sell it. And Jim was a great salesman for the department's policy." [ Jonathan Karp and Evan Perez contributed to this article. ] * Washington Post -- May 17, 2007 IT'S OUR CAGE, TOO Torture Betrays Us and Breeds New Enemies By Charles C. Krulak and Joseph P. Hoar http://www.washingtonpost.com/wp-dyn/content/ article/2007/05/16/AR2007051602395.html Fear can be a strong motivator. It led Franklin Roosevelt to intern tens of thousands of innocent U.S. citizens during World War II; it led to Joseph McCarthy's witch hunt, which ruined the lives of hundreds of Americans. And it led the United States to adopt a policy at the highest levels that condoned and even authorized torture of prisoners in our custody. Fear is the justification offered for this policy by former CIA director George Tenet as he promotes his new book. Tenet oversaw the secret CIA interrogation program in which torture techniques euphemistically called "waterboarding," "sensory deprivation," "sleep deprivation" and "stress positions" -- conduct we used to call war crimes -- were used. In defending these abuses, Tenet revealed: "Everybody forgets one central context of what we lived through: the palpable fear that we felt on the basis of the fact that there was so much we did not know." We have served in combat; we understand the reality of fear and the havoc it can wreak if left unchecked or fostered. Fear breeds panic, and it can lead people and nations to act in ways inconsistent with their character. The American people are understandably fearful about another attack like the one we sustained on Sept. 11, 2001. But it is the duty of the commander in chief to lead the country away from the grip of fear, not into its grasp. Regrettably, at Tuesday night's presidential debate in South Carolina, several Republican candidates revealed a stunning failure to understand this most basic obligation. Indeed, among the candidates, only John McCain demonstrated that he understands the close connection between our security and our values as a nation. Tenet insists that the CIA program disrupted terrorist plots and saved lives. It is difficult to refute this claim -- not because it is self-evidently true, but because any evidence that might support it remains classified and unknown to all but those who defend the program. These assertions that "torture works" may reassure a fearful public, but it is a false security. We don't know what's been gained through this fear-driven program. But we do know the consequences. As has happened with every other nation that has tried to engage in a little bit of torture -- only for the toughest cases, only when nothing else works -- the abuse spread like wildfire, and every captured prisoner became the key to defusing a potential ticking time bomb. Our soldiers in Iraq confront real "ticking time bomb" situations every day, in the form of improvised explosive devices, and any degree of "flexibility" about torture at the top drops down the chain of command like a stone -- the rare exception fast becoming the rule. To understand the impact this has had on the ground, look at the military's mental health assessment report released earlier this month. The study shows a disturbing level of tolerance for abuse of prisoners in some situations. This underscores what we know as military professionals: Complex situational ethics cannot be applied during the stress of combat. The rules must be firm and absolute; if torture is broached as a possibility, it will become a reality. This has had disastrous consequences. Revelations of abuse feed what the Army's new counterinsurgency manual, which was drafted under the command of Gen. David Petraeus, calls the "recuperative power" of the terrorist enemy. Former defense secretary Donald Rumsfeld once wondered aloud whether we were creating more terrorists than we were killing. In counterinsurgency doctrine, that is precisely the right question. Victory in this kind of war comes when the enemy loses legitimacy in the society from which it seeks recruits and thus loses its "recuperative power." The torture methods that Tenet defends have nurtured the recuperative power of the enemy. This war will be won or lost not on the battlefield but in the minds of potential supporters who have not yet thrown in their lot with the enemy. If we forfeit our values by signaling that they are negotiable in situations of grave or imminent danger, we drive those undecideds into the arms of the enemy. This way lies defeat, and we are well down the road to it. This is not just a lesson for history. Right now, White House lawyers are working up new rules that will govern what CIA interrogators can do to prisoners in secret. Those rules will set the standard not only for the CIA but also for what kind of treatment captured American soldiers can expect from their captors, now and in future wars. Before the president once again approves a policy of official cruelty, he should reflect on that. It is time for us to remember who we are and approach this enemy with energy, judgment and confidence that we will prevail. That is the path to security, and back to ourselves. [ Charles C. Krulak was commandant of the Marine Corps from 1995 to 1999. Joseph P. Hoar was commander in chief of U.S. Central Command from 1991 to 1994. ] * Miami Herald -- May 14, 2007 NAVY LAWYER'S RELEASE OF NAMES DEFENDED By Carol Rosenberg http://www.miamiherald.com/416/story/106774.html NORFOLK, Va. -- Attorneys for a Navy lawyer facing up to 24 years in military prison for mailing a list of Guantanamo detainee names to a civil liberties group -- inside a Valentine -- argued at his court-martial Monday that the document wasn't secret and its disclosure did not endanger national security. Lt. Cmdr. Matthew Diaz, 41, a Navy JAG or judge advocate general, faces five charges ranging from unlawfully releasing classified material to conduct unbecoming an officer. "This case deals with the deliberate, intentional, conscious release of classified information," the prosecutor, Navy Lt. James Hoffman, told a jury of seven Navy officers at the week-long trial's opening here at Naval Station Norfolk. Defense attorneys countered that the material wasn't marked "SECRET" on the computer screen or on the printout, drawn from a Guantanamo database that contains intelligence on war-on-terror captives. But, in opening arguments, both sides agreed that Diaz mailed the 39-page computer printout of the names and serial numbers to the New York Center for Constitutional Rights in January 2005. He shrunk the pages in a copier to the size of an index card, Hoffman told the jurors. Then he tucked them inside a Valentine's Day card bearing a picture of a droopy-eyed Chihuahua and mailed it in a fire-engine-red envelope with a return address of Joint Task Force Guantanamo, at the U.S. Navy base in remote southeast Cuba. At the time, the civil liberties group was leading the charge in federal court to file unlawful detention suits called habeas corpus petitions on behalf of as- yet-unidentified captives. But rather than use the list to transform a John Doe lawsuit into one with detainees' names, Barbara Olshansky, attorney for the Center for Constitutional Rights, testified that she called a Washington, D.C., federal court, where the lawsuits were filed, and was instructed to turn it over to a security officer. FBI agents tracked it back to Diaz through fingerprints. At issue is whether the information was then classified and whether it endangered U.S. national security and helped America's enemies by being mailed to a New York City human rights attorney whose clients included war-on-terror captives. The prosecutor argued that trial evidence would show that the information Diaz downloaded from a largely classified intelligence website -- including codes and serial numbers -- "puts at risk lives of our soldiers, sailors, airmen and Marines on the front line in the war on terror." But a defense counsel, Navy Lt. Justin Henderson, said his client had a "crisis of conscience" during a six-month tour at the offshore prison, where he was deputy staff judge advocate -- and didn't believe the names were a national security secret. "We don't expect the evidence will show that Matt Diaz made the right decision. We don't expect the evidence will show he made a wise decision," said Henderson. "He made a decision that was less than forthright. But he did not make an unlawful decision." Diaz, a 17-year veteran of U.S. military service, started out as an enlisted soldier but subsequently got a law degree at the Washburn University School of Law in Topeka, Kan., and a commission as a Navy officer. He was based at Guantanamo in late 2004 and early 2005, when civil liberties lawyers were arguing that a U.S. Supreme Court decision meant the Bush administration should release all Guantanamo detainees' names. But it would be more than a year before those names were released -- after another court ordered their release in a Freedom of Information lawsuit filed by The Associated Press. Diaz's civilian attorney, a former Marine Corps major and military judge, Patrick McLain, said lawyers would put on a defense later this week that spoke to Diaz's good character and a "hardscrabble" upbringing as a child of divorce whose father has been on California Death Row for more than 20 years. McLain said his Navy attorney client believes his father was wrongly convicted of killing patients as a healthcare provider. When he was charged, Diaz initially faced a maximum of 36 years in prison, if convicted. Charges have since been reduced and he now faces a maximum of 24 years. [ crosenberg@MiamiHerald.com ] * The New Republic -- May 2, 2007 [ 2007.05.07 issue ] The other Guantanamo. BLACK HOLE by Eliza Griswold http://www.tnr.com/doc.mhtml?i=20070507&s=griswold050707 Early last spring, outside a guesthouse in Kabul where I was staying, an injured Afghan man limped up to the locked gate. He wore a blazer with suede elbow patches and leaned on crutches. Because a suicide bomber had attacked the building not long before, a guard blocked the entrance of the unannounced supplicant. The fact that the man refused to give his name didn't help his case. But, finally, once inside, he blurted his reason for traveling across a war zone to the building: He had heard that American lawyers with whom I was traveling were staying there and that these lawyers wanted to represent prisoners held by the Americans at Bagram Airbase, some 40 miles north. "My son is in prison at Bagram," the man said, clutching a cell phone: A sympathetic Afghan guard inside Bagram Theater Internment Facility (BTIF) had sent him a photograph of his son after he had been badly beaten, his eye swollen shut. BTIF is currently home to about 650 detainees. Unlike the prison in Guantanamo, there aren't congressional junkets regularly touring the facility, let alone any reporters. Inside one of the low-slung, pale concrete buildings, on the vast floor of what was once a machine shop, is a scene one former interrogator describes as a dungeon, full of "medieval sounds"--the dragging of leg shackles, shouts from military police. Most of its windows, initially installed by the Soviet army, are broken and boarded up. There are six large 60-foot-long cages ringed in coiled barbed wire where detainees are kept, 15 to 20 prisoners to a cage. Before the prisoners enter or leave these cages, they are transferred temporarily to cages large enough for only one prisoner called "sally ports," which are encased in coils of concertina wire and reinforced with steel beams. On a level above the machine shop floor, there are isolation rooms walled in plywood with chicken-wire ceilings. The man had come to the guest house on bad information. The lawyers with whom I traveled represented prisoners in Guantanamo, and they weren't seeking new clients from Bagram. As the man took in this depressing fact, he grew irate and began pressing his case with even greater fervor. "There are more photographs," he exclaimed, turning to leave. "Someday, you will see them." That day may be fast approaching. The photos accompanying this piece are the first to be published from inside the prison. Last month, lawyers pleaded two separate cases before the D.C. District Court, demanding that the justices review petitions of habeas corpus for Bagram detainees. These cases represent the rare moment when Bagram will actually receive scrutiny. Unlike Guantanamo, a puddle-jumper away from Miami, Bagram is tucked into the Afghan countryside, not far from where combat with the Taliban still flares. And this remoteness has made the plight of its prisoners all the more dire: Only the International Committee of the Red Cross knows the names of Bagram's occupants. Eric Lewis, a co-counsel in one of the habeas cases, says, "The nightmare of Guantanamo is something of a picnic compared to Bagram," a fact that prisoners can relate with firsthand knowledge: A good portion of the detainees in Guantanamo were first held in Bagram. "Our clients were beaten more badly in Afghanistan than in Guantanamo, basically because, in Cuba, the whole world is watching," says Lewis. - - - Bagram is a 6.5-square-mile plot located on the vast, once-verdant Shomali plain and encircled by the snowy Panjshir mountains. After the Soviet invasion in the late '70s, the Russians built a two-mile runway and airbase at Bagram. During the decades of civil war, the defunct base repeatedly switched between Taliban and Northern Alliance control. In late 2001, as it trounced the Taliban, the United States took possession of the base and outfitted its cavernous machine shop to detain captured combatants. Former prisoners and interrogators say that there were old Soviet signs written in Cyrillic still on the walls. The detention facility was designed as a short-term collection point, where American interrogators sorted erroneous and low-level captures from those of higher intelligence value. And, at first, the prison actually served this purpose: Detainees from Saudi Arabia, Yemen, and North Africa were transported to Guantanamo--although there are still some Arabs held at Bagram. (We know this, in part, because a Yemeni prisoner, held virtually incommunicado for more than five years, sent his father a letter through the Red Cross. "BT," meaning Bagram Theater, was marked on the upper-left-hand corner.) From the start, the processing of prisoners entailed some grisly practices. When Captain Carolyn Wood assumed control of the prison in the summer of 2002--she ran it until taking over Abu Ghraib a year later--interrogation tactics came to include beatings, anal violation with sharp objects, blows to the genitals, and "peroneal" strikes (an incapacitating blow to the leg with a baton, a knee, or a shin). We know about these tactics because an internal Army investigation into two prisoner deaths was obtained by The New York Times. These detainees--a 22- year-old taxi driver and the brother of a Taliban commander--were found dead and hanging from the wrists by shackles. A coroner's report said the two men died after being subjected to dozens of peroneal strikes. According to the coroner's report, the "pulpified" legs of one of the corpses looked as if they had "been run over by a bus." During these early years, one of the most notorious figures at the prison was Private First Class Damien M. Corsetti, known in turns as the "King of Torture" and "Monster." Corsetti tattooed an Italian translation of the latter moniker across his stomach. In the end, a military tribunal cleared Corsetti of all charges. His lawyer successfully argued before the tribunal that the rules for detainee treatment were unclear: "The president of the United States doesn't know what the rules are. The secretary of defense doesn't know what the rules are. But the government expects this Pfc. to know what the rules are?" But, in the course of proving his innocence, Corsetti revealed several damning details. One of the prisoners he called to testify on his behalf told the military judges that a Saudi detainee recounted how Corsetti had threatened to rape him. He had even taken out his penis and yelled, "This is your God!" It's not that Bagram has entirely escaped scrutiny. Army investigators have recommended criminal charges for 27 alleged Bagram-based torturers. But, of these 27, only four soldiers have been sentenced to prison time--for no more than several months. The alleged abusers have evaded punishment largely with the help of, among others, Donald Rumsfeld, who approved a December 2002 memorandum that permitted the use of stripping, dogs, and stress positions in interrogations. In fact, many of the top brass who presided over Bagram have done more than escape punishment. Despite the many accounts of Captain Wood's encouragement of torture--Amnesty International has called her a "torture architect"--she has received two Bronze Stars. - - - While Bagram began as a temporary jail, it has over time morphed into a more permanent facility. As the bulk of its Arab prisoners were shipped to Guantanamo, it increasingly held Afghans for long (and in many cases indefinite) terms. "One of the worst aspects of Bagram is that no one knows how long they'll be held there," says Sam Zia-Zarifi, the research director for the Asia division of Human Rights Watch. The secrecy shrouding the prison makes it hard to discern the precise composition of its occupants. But we do know that, last year, its population swelled by about 100 detainees, thanks to new U.S.-nato operations aimed at routing the resurgent Taliban. And even the Pentagon has implicitly conceded that the prison no longer serves its initial short-term purpose, changing its name from Bagram Collection Point to the Bagram Theater Internment Facility. During this transformation, some of the worst abuses at Bagram, such as anal violations and beatings, have been curbed, according to former detainees, the Afghan Human Rights Commission, and Human Rights Watch. The Department of Defense claims that prisoners now gain an average of 15 pounds during their detention. And, several weeks ago, the first Afghan prisoners were transferred from Bagram into Afghan custody in the U.S.-built wing of the infamous Policharki prison. Lieutenant Colonel Todd Vician, a spokesman for the Department of Defense, tells me, "We have no desire to be the world's jailer." But, for all these changes, the growing detainee population still lives in overcrowded cages. Prisoners don't even have the limited access to lawyers available to prisoners in Guantanamo. Nor do they have the right to Combatant Status Review Tribunals, which Guantanamo detainees won in the 2004 Supreme Court ruling in Hamdi v. Rumsfeld. Instead, if a combat commander chooses, he can convene an Enemy Combatant Review Board (ecrb), at which the detainee has no right to a personal advocate, no chance to speak in his own defense, and no opportunity to review the evidence against him. The detainee isn't even allowed to attend. And, thanks to such limited access to justice, many former detainees say they have no idea why they were either detained or released. With a victory in the pending habeas cases, Bagram detainees might eventually win the same legal rights now held by Guantanamo prisoners. But, according to Tina Foster, executive director of the International Justice Network and co- counsel on the habeas petitions, "Even if the cases are successful, we are unlikely to see dramatic changes at Bagram any time soon." It will remain too far from the public eye, too deep in a war zone, to receive the public pressure that forced the reform of Guantanamo. That's a shame, because the prison--and, more precisely, its infamy--has hurt the American cause in Afghanistan. "[It] undermines our legitimacy in building democracy and human rights in Afghanistan," says Barnett Rubin, director of studies at New York University's Center on International Cooperation. - - - I began to understand this cost as I sat in the Kabul guesthouse with the American lawyers. Over a cup of tea, one local official named Zalmay Shah told us that he had once worked closely with U.S. Special Forces. At the beginning of the U.S. invasion, he had helped a commander named "Tony" round up a handful of midlevel Taliban. The soldiers had awarded him a letter of commendation for his efforts, and he developed a sincere affection for the Americans. That soon changed. While delivering one wanted man into U.S. custody, Shah was himself arrested, hooded, shackled, and stripped. Soldiers taped his mouth shut, refusing to let him spit out the snuff he was chewing. For three days, his jailers in Bagram denied him food. All the while, Shah pleaded his innocence and reminded the Americans of his friendship with "Tony." And, eventually, the Americans concluded that they had mistakenly identified the man as a Taliban official and released him. Despite all this, the U.S. military has continued to ask Shah for his help. "I have refused," he told us. "When the Americans came, we thought we would be free. But, on the contrary, we have suffered." Placing his elbows on the table, he hunched forward and cupped his hands around the now cold tea. "If the Americans don't change their policies soon, neither we nor they will have a way out." [ Eliza Griswold is currently a Nieman Fellow in journalism at Harvard. Her first book of poems, Wideawake Field, will be published in May 2007. ] * Toronto Star -- April 29, 2007 KHADR GOES ON TRIAL Murder charges against Canadian Omar Khadr, now imprisoned at Guantanamo Bay, have left the U.S. military deeply divided By Michelle Sheppard http://www.thestar.com/News/article/208502 On July 27, 2002, a firefight in Afghanistan resulted in the death of a U.S. Delta Force soldier and the shooting and capture of 15-year-old Canadian Omar Khadr. It was the beginning of a case that has divided public opinion in Canada, across the world and even within the U.S. administration and military. Two American soldiers on a quest for justice serve as examples of these divided views. Both are Boy Scout leaders and patriotic Americans. Both have seen the horrors of war first-hand. But the two are now fighting from opposite corners. During that July battle, shrapnel pierced Special Forces Sgt. Layne Morris's right eye. Partly blind as a result, he has retired from the army. At Khadr's military trial for war crimes in Guantanamo Bay, Cuba, Morris will be one of the Pentagon's witnesses. He regards it as his duty, a commitment to his unit and to deceased soldier Chris Speer, to see Khadr prosecuted. Colby Vokey, Marine lieutenant colonel and chief counsel for Khadr, is fighting for the Toronto teenager's release. The case has made him lose faith in his government and the military he has served for almost 20 years. Once the case is over, he plans to retire. Joined by human and civil rights groups worldwide, Vokey is calling for Guantanamo's closure. Khadr, now 20, was charged last week with murder, attempted murder, spying, providing material support to the enemy and conspiracy. He is expected to appear before the military court by June. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Layne Morris is committed to his family, his country, his Mormon faith and his work. He lives a fairly uncomplicated life in the Salt Lake City, Utah, suburb of South Jordan, employed as the housing administrator for a nearby township. With his wife of 20 years, Leisl, he has raised four children who clearly adore and look up to him. Now 45, Morris has slipped into a comfortable routine, with every Monday night reserved for a family activity. It hasn't always been this way. Morris is the second son of a U.S. State Department official whose job in agriculture economics meant that Layne's youth was spent moving from country to country. He learned to speak Thai during his years in Asia, lived with the protection of guard dogs in Jamaica, and once asked for directions from Sherpa Tenzing Norgay, not realizing until later that he had conversed with the man who had escorted Edmund Hillary to the top of Mount Everest. Now, the only outward sign of those early travels is his collection of more than 140 elephant figurines, displayed in a glass case in his living room. "I started when I was 8 years old," he recalls. "My parents said, `You know, you ought to collect something,' so I had to pick." One brother chose stamps, another dirt. He's not sure what drew him to elephants. He does know that it was this love of travel and excitement that led him in 1983 to the Army National Guard 19th Special Forces Group in Utah, when he was 21. Known as the Green Berets, the army's special forces distinguish themselves as the leaders in unconventional warfare. They're typically older, better trained than other recruits. They're the ones who drop behind enemy lines and fight from the inside. "Your Most Powerful Weapon is Your Mind" is their website's recruiting pitch. Through the years, Morris's unit travelled often, but never on dangerous missions, parachuting instead into safe locales in Europe and Asia for month- long stints. After two decades in the unit, many members who, like Morris, were inching into their 40s and 50s believed they would never experience action before retiring. Then, shortly after the first bombs dropped in Afghanistan in the fall of 2001, the call came. "For Special Forces soldiers, Afghanistan was the Holy Grail," Morris says as he sits at the kitchen table with his teenage daughter, his three sons, aged 12 to 17, and Leisl. "That's our mission, to go into a country like that and hook up with disaffected groups, train them, turn them into military force and then overthrow the government. That was the mission all of us had been trained for our whole lives." Leisl remembers the fall day when he got the call up as one of excitement. "He was on the phone talking in his low voice, `Yes sir, yes sir.'" When he got off the phone, "he wahooed and jumped up and down." The families of Utah's 19th Unit weren't told at the time where the men were going. But everyone knew it was Afghanistan and likely the hot zone near Pakistan's North Waziristan province. Six months later, Morris was on the ground at an abandoned Soviet runway near the town of Khost that the army would use as their outpost. At first, the work was routine. The men grew beards to try to blend in better, learned the culture, got to know the locals and, slowly, were rewarded as intelligence trickled in. One tip led to the home of a suspected bomber, a grey-haired man who used a wheelchair and had his injured legs held together by some medieval metal device, presumably fashioned after a bomb he was assembling unexpectedly exploded. It was here, in the early morning of July 27, 2002, that the unit received word that a satellite phone being tracked by Washington had been used from a location just down the road. Morris and five other soldiers were sent to check it out. They arrived at a series of mud huts surrounded by a stone wall with children milling around the edges. Morris set up a security perimeter until the rest of the soldiers arrived. They knew that the men on the inside had weapons, but this was not uncommon in the area. "What we did a lot of times is we'd have a couple of Afghan interpreters to go in and talk to them because we didn't want to be storm troopers unless we had to," explains Master Sgt. Scotty Hansen, also from Utah's 19th Unit. But the two Afghans didn't get very far. They were gunned down by the occupants of the house as soon as they approached, and that, says Hansen, is when "all heck broke out." Once the shooting began, women ran from the house, their colourful robes flapping as they somehow escaped unhurt. The soldiers fired back, and then from the house came a shower of grenades for what the Americans said felt like an eternity but probably lasted only 10 to 20 minutes. That's when Hansen did what would later earn him the army's Bronze Star. "Scotty runs into the compound and drags out those two Afghans," recalls Morris. "All of us were thinking, `There goes Scotty. We will be telling his wife the sad story.'" But Hansen, who was helped by another soldier in dragging the men out, was unharmed. Morris would be the first hurt. As the other soldiers provided cover fire, Morris and the team's executive officer, Major Mike Silver, positioned themselves behind one of the outer walls. Silver was over Morris's left shoulder explaining where he should try to position his next shot when, unbeknownst to them, a grenade landed at their feet. Hit by shrapnel, Morris fell backwards into Silver. His right eye was severely injured, but it was a cut on his nose, where the shrapnel had entered, that wouldn't stop bleeding. "I thought his weapon had malfunctioned, that was my first thought," remembers Silver. "I don't know how it could've, but that's what I thought had happened." With Morris dragged to a safer area away from the compound, Silver stayed behind the wall, about 100 metres from the house, and waited for the air support. During the next 45 minutes, two Apache attack helicopters unloaded ordnance, two A-10 Warthogs pockmarked the land -- at one point narrowly missing the spot where Morris had been dragged -- and, finally, two F18s dropped 500-pound bombs. A few of the house's walls still stood, but the scene was largely now just a quiet, smouldering heap. No one believed any of the suspects had survived. After Morris was airlifted to Baghram for treatment, three Delta soldiers moved in through a hole in one of the walls. The fourth in line was Silver, and just behind him was Sgt. First Class Chris Speer, a 28-year-old father of two and elite Delta officer with medical training, who had been stationed in Fort Bragg, N.C., before going to Afghanistan. Dead animal carcasses littered the ground, and among the wreckage were the bloodied bodies of three of the suspects. "I came to a wall, heard a noise that sounded like a gunshot," recalls Silver. It wasn't a gun but instead the popping sound a grenade fuse emits when lit and thrown. The three soldiers in front of him ducked. Silver doesn't remember the explosion, but the others -- like Hansen, stationed just outside -- do recall the blast. Two of the soldiers in front of Silver began shooting. Behind him Speer lay mortally wounded with head injuries from the grenade's shrapnel. When the shooting stopped, 15-year-old Omar Khadr lay on the ground with two massive holes in his upper left chest from the soldiers' M4s. The soldiers had no idea that the wounded teenager on the ground, later accused of throwing the grenade that killed Speer, was the second youngest son of reputed Osama bin Laden confidant Ahmed Said Khadr, who had immigrated to Canada from Egypt in 1977. Silver said that when he approached Omar, the teen spoke to him in English. He asked to be killed. Khadr was born in Toronto and grew up in Canada, Pakistan and Afghanistan. On 9/11, he was with his mother and four of his siblings in Kabul, while his father and an older brother were visiting the Afghan city of Jalalabad, near the bin Laden family compound. The family scattered as the first American bombs fell on Oct. 10, 2001, and Omar was allegedly handed over by his father to translate for suspected Al Qaeda member Abu Laith al-Libi. Al-Libi wasn't in the compound that day in July, but a videotape later recovered from the wreckage reportedly shows Omar working with land mines and talking to al-Libi, according to three separate sources who have viewed the tape and who spoke to the Toronto Star. Al-Libi remains at large. Speer died from his injuries 10 days after the July firefight. His wife, Tabitha, was by his side. Khadr lost sight in his left eye but recovered from his chest wounds in a Baghram prison where former British detainee Moazzam Begg says he was dubbed "Buckshot Bob" by the guards. "They often took Omar out of his cell and made him work like a horse," Begg wrote in his book Enemy Combatant. "They called him a murderer." In October 2002, after his 16th birthday, Khadr was transferred to Guantanamo. He remains there still. Morris returned to a hero's welcome. He was awarded the Bronze Star and presented with a key to his home of South Jordan and his very own "GI Layne" -- an adaptation of action hero GI Joe with a Morris nametag. Morris's injury forced him to retire from the army, and soon after he joined Speer's widow in launching a civil suit against the Khadr family. Tabitha Speer's victim impact statement painfully described the days after her husband's death and how she had told her two young children that their dad wasn't coming home. "Any time the children wish to talk to daddy we send helium balloons into the sky," she wrote. "The children talk to their daddy each night before they go to bed, gazing up at the stars." "Surviving every day without Christopher has been utter hell." The Khadr family was ordered to pay $102 million, but patriarch Ahmed Said Khadr was killed by Pakistani forces in 2003, and the rest of the family has returned to Canada and live on welfare in a Scarborough apartment -- so no money has been paid. Morris said the suit was more about a chance to fight back, to make a point. "(When) the family was all in Pakistan, I thought, all right, you made your choice, fine, have a nice life and I was okay with it. It was when they pulled out the Canadian passports and started waving them around to come back and take advantage of their free everything because it hadn't gone well for them -- that was the point when I said, you know there's something additionally I can do." Morris says now he would like nothing more than to forget the July firefight in Afghanistan and the Khadr name, but feels compelled to speak out. "It's my duty now is how I look at it. I have to stay involved; I gotta testify. In a personal way, I don't think about the Khadrs, but I feel an obligation to follow it through for my buddies." When asked about Khadr's age at the time of the battle, he pauses, looking across the table at his own two teenaged sons. "I understand people's statements that, yeah, he was young, and, yeah, his parents messed him up. There's no doubt about that, they raised him that way. "I see both sides of it, but at the same time I don't have any sympathy for him. Zero sympathy for him. We can have these theoretical discussions about him, but I couldn't care less for him. I vote you treat him like an adult and make him pay like an adult." He concedes he's frustrated by the time it has taken to deal with Guantanamo cases and just wants the trial completed. The process now in place is the best option for trying an unconventional enemy, Morris says, but he admits he doesn't concern himself with the legal complexities of the debate. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lt. Col. Colby Vokey is stationed at Camp Pendleton, the Marine base spread across 125,000 acres of California's coast between San Diego and Los Angeles. He lives on the base with his wife, Cindy, and their three children, aged seven to 18. The commute to the office takes 30 minutes -- when he's home, which isn't often these days. Vokey is the Marine Regional Defense Counsel for the west coast, which means he oversees defence lawyers on cases that range from petty domestic crimes to charges of murder. These Marines with BlackBerrys work out of a rundown portable known as the pirate ship. A black flag with a skull and crossbones hangs in the hall, reminding them that they had to commandeer the office space as their caseload grew during in the last five years. Lawyers buzz in and out of Vokey's office with questions and stories, like college freshmen gathering at their dormitory, absentmindedly opening the fridge as they converse. The only difference is that instead of talking sex and hangovers, the heated debates concern constitutional challenges and overbearing judges, and the fridge is stocked with Diet Dr. Pepper instead of beer. Now 41, Vokey was born and raised in Dallas, the second of three boys. His father hails from the small town of Trinity Bay, north of St. John's, Nfld., but came south to join the U.S. Air force. After marrying Vokey's mother, a flight attendant from New York, the family settled in Dallas, where Vokey hopes to return after his retirement. Vokey joined the Marine Corps when he was 22, and later moved with his wife to North Dakota to attend law school. "I asked Cindy where she wanted to live and she said, `Well we've never been to North Dakota and we probably never will, so lets go there,'" he laughs. The Marines have taken the family around the world, with Cindy picking up a university degree pretty much everywhere they went. She was an accounting major when they met in Texas, then an MBA in North Dakota, and then an Asian studies student in Okinawa, Japan. In 1991, Vokey fought in the Gulf War, and it's not hard to picture him there. Barrel-chested, with a booming voice and a habit of spitting chewing tobacco into a pop can when he's thinking, Vokey says his unit did not receive a lot of attention. "We were inward, pitching in. No cameras, no television reporters, none of the stuff you saw on TV." On a table in his office is a souvenir from that time -- a piece of a rocket that landed dangerously close to his head. Being a Marine lawyer is often a tough position. Marines are trained not to question directives or authority -- second-guessing or delays can have tragic consequences in the field. But in the post-9/11 era, the job has become even more difficult. Vokey's own caseload now includes two of what are possibly the two most controversial and high-profile cases since 9/11. Early last year, when he was assigned to defend Omar Khadr, he was thrown into the legal quagmire of Guantanamo Bay and introduced to the teenager who will soon have the distinction of being the only Western citizen detained at the U.S. Navy base. Vokey is also defending Staff Sgt. Frank Wuterich, the 25-year-old Marines squad leader charged with unpremeditated murder in the deaths of 24 Iraqi civilians in the town of Haditha on Nov. 19, 2005. The victims included men, women and children as young as two. The Marine unit Wuterich commanded was accused of a murderous rampage to avenge the death of one of its own. Human rights groups have drawn comparisons between the Haditha killings and Vietnam's Mai Lai -- the 1968 attack on hundreds of Vietnamese civilians that sparked worldwide outrage, which in turn changed the course of the Vietnam War. For many, it's difficult to imagine how Vokey can argue from what appear as two sides of the war. In cyberspace, for instance, he has two, diametrically opposed personas. "I'm this white knight hero guy fighting the Bush administration and trying to close down Guantanamo," says Vokey about entries on left-leaning blogs. "You take the same group and you're dealing with my Haditha case, and I'm the devil defending this mass murderer." The right-leaning blogs are the same -- just vice-versa. Vokey doesn't see it in those terms. "I don't have any conflict in my head where I have to switch gears and go from one side to the other, I don't think so at all," he says. "When everybody gets commissioned in the Marine Corps, you take your oath, and every time you're promoted you take the oath again. And the oath is to support and defend the constitution of the United States. So you're not swearing to the president or to a general; that's what your oath is, to support and defend the constitution." Wuterich is expected to go before a military court martial later this year, to be tried under the Uniform Code of Military Justice, the law governing the armed forces since 1951. The jury will determine if he committed a crime equivalent to second-degree murder, or if the actions of his squad were combat-related deaths, unavoidable tragedies in a time of war. Khadr's case is different. Because President George W. Bush's administration does not consider Khadr and other Guantanamo detainees prisoners of war -- and therefore not covered by the Geneva Conventions or eligible for trial before a military court martial -- a new legal system was created. Last year, the U.S. Supreme Court declared the process illegal and in violation of the constitution and international laws. So a new set of procedures, the Military Commissions Act, was drafted, endorsed by Congress and, on Oct. 17, 2006, signed into law by Bush. The Supreme Court has yet to scrutinize it. Vokey and other Guantanamo defence lawyers say changes to the process are few. The new trials allow the use of hearsay evidence, coerced testimony and secret intelligence, skewing the process to ensure convictions, they argue. "I don't think at this point you'll ever be able to get a fair trial down there," says Vokey. Aside from the fundamental legal issues, the defence lawyers have limited access to their clients and have to abide by Guantanamo's rules. Vokey hasn't been allowed to show Khadr any of the Pentagon's evidence in the case, in order to build a defence. As an example of the difficulties, he cites an incident from last year, when a guard searched through his notes before he was granted access to Khadr. "I say, `Soldier, what the hell are you doing?'" recalls Vokey. "`You can't read that those are my confidential notes.' He said, `Sir, I'm not reading; I'm just looking for certain information there.'" Military lawyers appointed to defend Guantanamo detainees say they're vilified, and that their future careers are likely ruined. Vokey has already had one gag order imposed on him that did not allow him to speak to the media, and he believes a threat last year to have him transferred (which would have uprooted his family, with his daughter in her last year of high school) was due to his appointment to Khadr's case. But Vokey sees this case as his duty as a lawyer and a Marine. And when he describes Khadr, the duty seems almost fatherly. Vokey is one of the few outsiders who have seen Khadr in the almost five years since his capture (media interviews with detainees are forbidden, and the International Committee of Red Cross representatives who visit the 385 men still imprisoned are not allowed to disclose their findings publicly). "I truly like Omar, I do," says Vokey. He describes him as soft-spoken, mild-mannered and wanting to be left alone to draw pictures in his cell. "Sometimes he acts like a teenager ... his ability to express himself, how he feels, his frustrations, what he wants, is about commensurate with a 15-year-old, not a 20-year-old. I think his immaturity is lack of education, lack of exposure to anything but interrogations and an occasional talk with a guy in another cell." And he worries about his client's mental state. Khadr told his lawyers that during one of his interrogations he was used as a human mop. He had been left hog-tied and then urinated on himself, and when the guards discovered the mess, they allegedly squirted him with the cleaner Pine-Sol and, with his arms and legs still bound, used his body to clean up the mess. A detainee's diary reveals that Khadr joined one of the hunger strikes at the camp in July 2005 and became ill, vomiting blood on the floor of his cell. Another hunger strike is now ongoing in Camp 6, the newly constructed facility where Khadr is held in isolation. It's not known if Khadr is participating. In fact, the last time Vokey talked to Khadr was September. Since then he has refused to meet with his lawyers -- which doesn't surprise his legal team. "He has been betrayed and lied to so many times," says Vokey, "it's sort of tough to deal with him, because he doesn't believe what you say, or he doesn't think you can follow through with it. Which, a lot of the times, he's right." Last month, Khadr was allowed his first phone call home in five years. His mother, Maha Elsamnah, said her son vowed to boycott any trial and would continue to refuse visits from his American lawyers (in addition to Vokey, Khadr is also represented by another military lawyer and three civilian lawyers out of Washington who have volunteered their services). Meanwhile, she said her son wanted to meet the family's Canadian lawyers, Edmonton-based Dennis Edney and Nate Whitling. The U.S. Department of Defense has not permitted them access to Guantanamo in the past, but on Tuesday they received a letter from Canada's foreign affairs department saying they've cleared the first hurdle. Now the growing legal team, led by Vokey, has a month to consider its options. There are still dozens of legal uncertainties. If Khadr is adamant about boycotting the trial, how will Vokey handle being forced to mount a defence? He says he'd refuse to participate in a trial if Khadr wasn't present, which could result in him being held in contempt and court-martialed for refusing an order. And then there's the question of whether participating in the process would legitimize what he believes are illegal hearings. In the end, Vokey says he has to simply think about how to get Khadr released from Guantanamo. And ultimately -- as with any lawyer and their client -- Khadr will make the final call. But the fight is now political, not legal, Vokey argues. Australia just negotiated a deal to get detainee David Hicks returned home to serve a nine-month sentence provided he pleads guilty to a charge of supporting terrorism and agrees to a series of conditions, including a ban on legal action against the U.S. for alleged abuse. Hicks's lawyers and the Australian government were criticized by some for participating in the hearings. Others praised them for getting Hicks out (once he leaves next month, Khadr will remains the only detainee from a Western country). Vokey says he does not fault Hicks's lawyers, and would encourage Khadr to plead guilty to the "JFK assassination," if it meant he could go home. But it's unlikely any deal is in the works. Khadr's case differs from Hicks's in many ways -- not least in that Khadr faces a charge of murder, and little public or political pressure has come from Canada to bring him home. On the floor of Vokey's office, propped against a filing cabinet, rests a red leather gold-embossed folder holding his retirement certificate. He just received a new one after the last one listed May 2007, instead of 2008, as his retirement date. "I definitely think I've worn out my welcome," he chuckles. If Khadr's case is not resolved before he retires -- and with the pace of justice so far there's a good chance it won't -- he says he'll delay it. Does he regret signing on for what is expected to be a historic Guantanamo case? "I came on and heard a lot of bad things and thought, `Ah, this is just big government doing big government things,'" he says, leaning back in his chair, arms folded over his head. "Maybe I was a little too naïve. I've seen some things that have disgusted me. The more I'm around it, the more I think it's an improper system. Maybe it would have been better to not be associated with it at all." [ Michelle Shephard, who covers national security issues for the Toronto Star, is writing a book about Omar Khadr. She can be reached at mshephard@thestar.ca ] * The Guardian (UK) -- April 24, 2007 FASCIST AMERICA, IN 10 EASY STEPS by Naomi Wolf http://www.guardian.co.uk/usa/story/0,,2064157,00.html Last autumn, there was a military coup in Thailand. The leaders of the coup took a number of steps, rather systematically, as if they had a shopping list. In a sense, they did. Within a matter of days, democracy had been closed down: the coup leaders declared martial law, sent armed soldiers into residential areas, took over radio and TV stations, issued restrictions on the press, tightened some limits on travel, and took certain activists into custody. They were not figuring these things out as they went along. If you look at history, you can see that there is essentially a blueprint for turning an open society into a dictatorship. That blueprint has been used again and again in more and less bloody, more and less terrifying ways. But it is always effective. It is very difficult and arduous to create and sustain a democracy - but history shows that closing one down is much simpler. You simply have to be willing to take the 10 steps. As difficult as this is to contemplate, it is clear, if you are willing to look, that each of these 10 steps has already been initiated today in the United States by the Bush administration. Because Americans like me were born in freedom, we have a hard time even considering that it is possible for us to become as unfree - domestically - as many other nations. Because we no longer learn much about our rights or our system of government - the task of being aware of the constitution has been outsourced from citizens' ownership to being the domain of professionals such as lawyers and professors - we scarcely recognise the checks and balances that the founders put in place, even as they are being systematically dismantled. Because we don't learn much about European history, the setting up of a department of "homeland" security - remember who else was keen on the word "homeland" - didn't raise the alarm bells it might have. It is my argument that, beneath our very noses, George Bush and his administration are using time-tested tactics to close down an open society. It is time for us to be willing to think the unthinkable - as the author and political journalist Joe Conason, has put it, that it can happen here. And that we are further along than we realise. Conason eloquently warned of the danger of American authoritarianism. I am arguing that we need also to look at the lessons of European and other kinds of fascism to understand the potential seriousness of the events we see unfolding in the US. 1. Invoke a terrifying internal and external enemy After we were hit on September 11 2001, we were in a state of national shock. Less than six weeks later, on October 26 2001, the USA Patriot Act was passed by a Congress that had little chance to debate it; many said that they scarcely had time to read it. We were told we were now on a "war footing"; we were in a "global war" against a "global caliphate" intending to "wipe out civilisation". There have been other times of crisis in which the US accepted limits on civil liberties, such as during the civil war, when Lincoln declared martial law, and the second world war, when thousands of Japanese-American citizens were interned. But this situation, as Bruce Fein of the American Freedom Agenda notes, is unprecedented: all our other wars had an endpoint, so the pendulum was able to swing back toward freedom; this war is defined as open-ended in time and without national boundaries in space - the globe itself is the battlefield. "This time," Fein says, "there will be no defined end." Creating a terrifying threat - hydra-like, secretive, evil - is an old trick. It can, like Hitler's invocation of a communist threat to the nation's security, be based on actual events (one Wisconsin academic has faced calls for his dismissal because he noted, among other things, that the alleged communist arson, the Reichstag fire of February 1933, was swiftly followed in Nazi Germany by passage of the Enabling Act, which replaced constitutional law with an open-ended state of emergency). Or the terrifying threat can be based, like the National Socialist evocation of the "global conspiracy of world Jewry", on myth. It is not that global Islamist terrorism is not a severe danger; of course it is. I am arguing rather that the language used to convey the nature of the threat is different in a country such as Spain - which has also suffered violent terrorist attacks - than it is in America. Spanish citizens know that they face a grave security threat; what we as American citizens believe is that we are potentially threatened with the end of civilisation as we know it. Of course, this makes us more willing to accept restrictions on our freedoms. 2. Create a gulag Once you have got everyone scared, the next step is to create a prison system outside the rule of law (as Bush put it, he wanted the American detention centre at Guantanamo Bay to be situated in legal "outer space") - where torture takes place. At first, the people who are sent there are seen by citizens as outsiders: troublemakers, spies, "enemies of the people" or "criminals". Initially, citizens tend to support the secret prison system; it makes them feel safer and they do not identify with the prisoners. But soon enough, civil society leaders - opposition members, labour activists, clergy and journalists - are arrested and sent there as well. This process took place in fascist shifts or anti-democracy crackdowns ranging from Italy and Germany in the 1920s and 1930s to the Latin American coups of the 1970s and beyond. It is standard practice for closing down an open society or crushing a pro-democracy uprising. With its jails in Iraq and Afghanistan, and, of course, Guantanamo in Cuba, where detainees are abused, and kept indefinitely without trial and without access to the due process of the law, America certainly has its gulag now. Bush and his allies in Congress recently announced they would issue no information about the secret CIA "black site" prisons throughout the world, which are used to incarcerate people who have been seized off the street. Gulags in history tend to metastasise, becoming ever larger and more secretive, ever more deadly and formalised. We know from first-hand accounts, photographs, videos and government documents that people, innocent and guilty, have been tortured in the US-run prisons we are aware of and those we can't investigate adequately. But Americans still assume this system and detainee abuses involve only scary brown people with whom they don't generally identify. It was brave of the conservative pundit William Safire to quote the anti-Nazi pastor Martin Niemöller, who had been seized as a political prisoner: "First they came for the Jews." Most Americans don't understand yet that the destruction of the rule of law at Guantanamo set a dangerous precedent for them, too. By the way, the establishment of military tribunals that deny prisoners due process tends to come early on in a fascist shift. Mussolini and Stalin set up such tribunals. On April 24 1934, the Nazis, too, set up the People's Court, which also bypassed the judicial system: prisoners were held indefinitely, often in isolation, and tortured, without being charged with offences, and were subjected to show trials. Eventually, the Special Courts became a parallel system that put pressure on the regular courts to abandon the rule of law in favour of Nazi ideology when making decisions. 3. Develop a thug caste When leaders who seek what I call a "fascist shift" want to close down an open society, they send paramilitary groups of scary young men out to terrorise citizens. The Blackshirts roamed the Italian countryside beating up communists; the Brownshirts staged violent rallies throughout Germany. This paramilitary force is especially important in a democracy: you need citizens to fear thug violence and so you need thugs who are free from prosecution. The years following 9/11 have proved a bonanza for America's security contractors, with the Bush administration outsourcing areas of work that traditionally fell to the US military. In the process, contracts worth hundreds of millions of dollars have been issued for security work by mercenaries at home and abroad. In Iraq, some of these contract operatives have been accused of involvement in torturing prisoners, harassing journalists and firing on Iraqi civilians. Under Order 17, issued to regulate contractors in Iraq by the one- time US administrator in Baghdad, Paul Bremer, these contractors are immune from prosecution Yes, but that is in Iraq, you could argue; however, after Hurricane Katrina, the Department of Homeland Security hired and deployed hundreds of armed private security guards in New Orleans. The investigative journalist Jeremy Scahill interviewed one unnamed guard who reported having fired on unarmed civilians in the city. It was a natural disaster that underlay that episode - but the administration's endless war on terror means ongoing scope for what are in effect privately contracted armies to take on crisis and emergency management at home in US cities. Thugs in America? Groups of angry young Republican men, dressed in identical shirts and trousers, menaced poll workers counting the votes in Florida in 2000. If you are reading history, you can imagine that there can be a need for "public order" on the next election day. Say there are protests, or a threat, on the day of an election; history would not rule out the presence of a private security firm at a polling station "to restore public order". 4. Set up an internal surveillance system In Mussolini's Italy, in Nazi Germany, in communist East Germany, in communist China - in every closed society - secret police spy on ordinary people and encourage neighbours to spy on neighbours. The Stasi needed to keep only a minority of East Germans under surveillance to convince a majority that they themselves were being watched. In 2005 and 2006, when James Risen and Eric Lichtblau wrote in the New York Times about a secret state programme to wiretap citizens' phones, read their emails and follow international financial transactions, it became clear to ordinary Americans that they, too, could be under state scrutiny. In closed societies, this surveillance is cast as being about "national security"; the true function is to keep citizens docile and inhibit their activism and dissent. 5. Harass citizens' groups The fifth thing you do is related to step four - you infiltrate and harass citizens' groups. It can be trivial: a church in Pasadena, whose minister preached that Jesus was in favour of peace, found itself being investigated by the Internal Revenue Service, while churches that got Republicans out to vote, which is equally illegal under US tax law, have been left alone. Other harassment is more serious: the American Civil Liberties Union reports that thousands of ordinary American anti-war, environmental and other groups have been infiltrated by agents: a secret Pentagon database includes more than four dozen peaceful anti-war meetings, rallies or marches by American citizens in its category of 1,500 "suspicious incidents". The equally secret Counterintelligence Field Activity (Cifa) agency of the Department of Defense has been gathering information about domestic organisations engaged in peaceful political activities: Cifa is supposed to track "potential terrorist threats" as it watches ordinary US citizen activists. A little-noticed new law has redefined activism such as animal rights protests as "terrorism". So the definition of "terrorist" slowly expands to include the opposition. 6. Engage in arbitrary detention and release This scares people. It is a kind of cat-and-mouse game. Nicholas D Kristof and Sheryl WuDunn, the investigative reporters who wrote China Wakes: the Struggle for the Soul of a Rising Power, describe pro-democracy activists in China, such as Wei Jingsheng, being arrested and released many times. In a closing or closed society there is a "list" of dissidents and opposition leaders: you are targeted in this way once you are on the list, and it is hard to get off the list. In 2004, America's Transportation Security Administration confirmed that it had a list of passengers who were targeted for security searches or worse if they tried to fly. People who have found themselves on the list? Two middle-aged women peace activists in San Francisco; liberal Senator Edward Kennedy; a member of Venezuela's government - after Venezuela's president had criticised Bush; and thousands of ordinary US citizens. Professor Walter F. Murphy is emeritus of Princeton University; he is one of the foremost constitutional scholars in the nation and author of the classic Constitutional Democracy. Murphy is also a decorated former marine, and he is not even especially politically liberal. But on March 1 this year, he was denied a boarding pass at Newark, "because I was on the Terrorist Watch list". "Have you been in any peace marches? We ban a lot of people from flying because of that," asked the airline employee. "I explained," said Murphy, "that I had not so marched but had, in September 2006, given a lecture at Princeton, televised and put on the web, highly critical of George Bush for his many violations of the constitution." "That'll do it," the man said. Anti-war marcher? Potential terrorist. Support the constitution? Potential terrorist. History shows that the categories of "enemy of the people" tend to expand ever deeper into civil life. James Yee, a US citizen, was the Muslim chaplain at Guantanamo who was accused of mishandling classified documents. He was harassed by the US military before the charges against him were dropped. Yee has been detained and released several times. He is still of interest. Brandon Mayfield, a US citizen and lawyer in Oregon, was mistakenly identified as a possible terrorist. His house was secretly broken into and his computer seized. Though he is innocent of the accusation against him, he is still on the list. It is a standard practice of fascist societies that once you are on the list, you can't get off. 7. Target key individuals Threaten civil servants, artists and academics with job loss if they don't toe the line. Mussolini went after the rectors of state universities who did not conform to the fascist line; so did Joseph Goebbels, who purged academics who were not pro-Nazi; so did Chile's Augusto Pinochet; so does the Chinese communist Politburo in punishing pro-democracy students and professors. Academe is a tinderbox of activism, so those seeking a fascist shift punish academics and students with professional loss if they do not "coordinate", in Goebbels' term, ideologically. Since civil servants are the sector of society most vulnerable to being fired by a given regime, they are also a group that fascists typically "coordinate" early on: the Reich Law for the Re-establishment of a Professional Civil Service was passed on April 7 1933. Bush supporters in state legislatures in several states put pressure on regents at state universities to penalise or fire academics who have been critical of the administration. As for civil servants, the Bush administration has derailed the career of one military lawyer who spoke up for fair trials for detainees, while an administration official publicly intimidated the law firms that represent detainees pro bono by threatening to call for their major corporate clients to boycott them. Elsewhere, a CIA contract worker who said in a closed blog that "waterboarding is torture" was stripped of the security clearance she needed in order to do her job. Most recently, the administration purged eight US attorneys for what looks like insufficient political loyalty. When Goebbels purged the civil service in April 1933, attorneys were "coordinated" too, a step that eased the way of the increasingly brutal laws to follow. 8. Control the press Italy in the 1920s, Germany in the 30s, East Germany in the 50s, Czechoslovakia in the 60s, the Latin American dictatorships in the 70s, China in the 80s and 90s - all dictatorships and would-be dictators target newspapers and journalists. They threaten and harass them in more open societies that they are seeking to close, and they arrest them and worse in societies that have been closed already. The Committee to Protect Journalists says arrests of US journalists are at an all-time high: Josh Wolf (no relation), a blogger in San Francisco, has been put in jail for a year for refusing to turn over video of an anti-war demonstration; Homeland Security brought a criminal complaint against reporter Greg Palast, claiming he threatened "critical infrastructure" when he and a TV producer were filming victims of Hurricane Katrina in Louisiana. Palast had written a bestseller critical of the Bush administration. Other reporters and writers have been punished in other ways. Joseph C Wilson accused Bush, in a New York Times op-ed, of leading the country to war on the basis of a false charge that Saddam Hussein had acquired yellowcake uranium in Niger. His wife, Valerie Plame, was outed as a CIA spy - a form of retaliation that ended her career. Prosecution and job loss are nothing, though, compared with how the US is treating journalists seeking to cover the conflict in Iraq in an unbiased way. The Committee to Protect Journalists has documented multiple accounts of the US military in Iraq firing upon or threatening to fire upon unembedded (meaning independent) reporters and camera operators from organisations ranging from al- Jazeera to the BBC. While westerners may question the accounts by al-Jazeera, they should pay attention to the accounts of reporters such as the BBC's Kate Adie. In some cases reporters have been wounded or killed, including ITN's Terry Lloyd in 2003. Both CBS and the Associated Press in Iraq had staff members seized by the US military and taken to violent prisons; the news organisations were unable to see the evidence against their staffers. Over time in closing societies, real news is supplanted by fake news and false documents. Pinochet showed Chilean citizens falsified documents to back up his claim that terrorists had been about to attack the nation. The yellowcake charge, too, was based on forged papers. You won't have a shutdown of news in modern America - it is not possible. But you can have, as Frank Rich and Sidney Blumenthal have pointed out, a steady stream of lies polluting the news well. What you already have is a White House directing a stream of false information that is so relentless that it is increasingly hard to sort out truth from untruth. In a fascist system, it's not the lies that count but the muddying. When citizens can't tell real news from fake, they give up their demands for accountability bit by bit. 9. Dissent equals treason Cast dissent as "treason" and criticism as "espionage'. Every closing society does this, just as it elaborates laws that increasingly criminalise certain kinds of speech and expand the definition of "spy" and "traitor". When Bill Keller, the publisher of the New York Times, ran the Lichtblau/Risen stories, Bush called the Times' leaking of classified information "disgraceful", while Republicans in Congress called for Keller to be charged with treason, and rightwing commentators and news outlets kept up the "treason" drumbeat. Some commentators, as Conason noted, reminded readers smugly that one penalty for violating the Espionage Act is execution. Conason is right to note how serious a threat that attack represented. It is also important to recall that the 1938 Moscow show trial accused the editor of Izvestia, Nikolai Bukharin, of treason; Bukharin was, in fact, executed. And it is important to remind Americans that when the 1917 Espionage Act was last widely invoked, during the infamous 1919 Palmer Raids, leftist activists were arrested without warrants in sweeping roundups, kept in jail for up to five months, and "beaten, starved, suffocated, tortured and threatened with death", according to the historian Myra MacPherson. After that, dissent was muted in America for a decade. In Stalin's Soviet Union, dissidents were "enemies of the people". National Socialists called those who supported Weimar democracy "November traitors". And here is where the circle closes: most Americans do not realise that since September of last year - when Congress wrongly, foolishly, passed the Military Commissions Act of 2006 - the president has the power to call any US citizen an "enemy combatant". He has the power to define what "enemy combatant" means. The president can also delegate to anyone he chooses in the executive branch the right to define "enemy combatant" any way he or she wants and then seize Americans accordingly. Even if you or I are American citizens, even if we turn out to be completely innocent of what he has accused us of doing, he has the power to have us seized as we are changing planes at Newark tomorrow, or have us taken with a knock on the door; ship you or me to a navy brig; and keep you or me in isolation, possibly for months, while awaiting trial. (Prolonged isolation, as psychiatrists know, triggers psychosis in otherwise mentally healthy prisoners. That is why Stalin's gulag had an isolation cell, like Guantanamo's, in every satellite prison. Camp 6, the newest, most brutal facility at Guantanamo, is all isolation cells.) We US citizens will get a trial eventually - for now. But legal rights activists at the Center for Constitutional Rights say that the Bush administration is trying increasingly aggressively to find ways to get around giving even US citizens fair trials. "Enemy combatant" is a status offence - it is not even something you have to have done. "We have absolutely moved over into a preventive detention model - you look like you could do something bad, you might do something bad, so we're going to hold you," says a spokeswoman of the CCR. Most Americans surely do not get this yet. No wonder: it is hard to believe, even though it is true. In every closing society, at a certain point there are some high-profile arrests - usually of opposition leaders, clergy and journalists. Then everything goes quiet. After those arrests, there are still newspapers, courts, TV and radio, and the facades of a civil society. There just isn't real dissent. There just isn't freedom. If you look at history, just before those arrests is where we are now. 10. Suspend the rule of law The John Warner Defense Authorization Act of 2007 gave the president new powers over the national guard. This means that in a national emergency - which the president now has enhanced powers to declare - he can send Michigan's militia to enforce a state of emergency that he has declared in Oregon, over the objections of the state's governor and its citizens. Even as Americans were focused on Britney Spears's meltdown and the question of who fathered Anna Nicole's baby, the New York Times editorialised about this shift: "A disturbing recent phenomenon in Washington is that laws that strike to the heart of American democracy have been passed in the dead of night ... Beyond actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or any 'other condition'." Critics see this as a clear violation of the Posse Comitatus Act - which was meant to restrain the federal government from using the military for domestic law enforcement. The Democratic senator Patrick Leahy says the bill encourages a president to declare federal martial law. It also violates the very reason the founders set up our system of government as they did: having seen citizens bullied by a monarch's soldiers, the founders were terrified of exactly this kind of concentration of militias' power over American people in the hands of an oppressive executive or faction. Of course, the United States is not vulnerable to the violent, total closing- down of the system that followed Mussolini's march on Rome or Hitler's roundup of political prisoners. Our democratic habits are too resilient, and our military and judiciary too independent, for any kind of scenario like that. Rather, as other critics are noting, our experiment in democracy could be closed down by a process of erosion. It is a mistake to think that early in a fascist shift you see the profile of barbed wire against the sky. In the early days, things look normal on the surface; peasants were celebrating harvest festivals in Calabria in 1922; people were shopping and going to the movies in Berlin in 1931. Early on, as WH Auden put it, the horror is always elsewhere - while someone is being tortured, children are skating, ships are sailing: "dogs go on with their doggy life... How everything turns away / Quite leisurely from the disaster." As Americans turn away quite leisurely, keeping tuned to internet shopping and American Idol, the foundations of democracy are being fatally corroded. Something has changed profoundly that weakens us unprecedentedly: our democratic traditions, independent judiciary and free press do their work today in a context in which we are "at war" in a "long war" - a war without end, on a battlefield described as the globe, in a context that gives the president - without US citizens realising it yet - the power over US citizens of freedom or long solitary incarceration, on his say-so alone. That means a hollowness has been expanding under the foundation of all these still- free-looking institutions - and this foundation can give way under certain kinds of pressure. To prevent such an outcome, we have to think about the "what ifs". What if, in a year and a half, there is another attack - say, God forbid, a dirty bomb? The executive can declare a state of emergency. History shows that any leader, of any party, will be tempted to maintain emergency powers after the crisis has passed. With the gutting of traditional checks and balances, we are no less endangered by a President Hillary than by a President Giuliani - because any executive will be tempted to enforce his or her will through edict rather than the arduous, uncertain process of democratic negotiation and compromise. What if the publisher of a major US newspaper were charged with treason or espionage, as a rightwing effort seemed to threaten Keller with last year? What if he or she got 10 years in jail? What would the newspapers look like the next day? Judging from history, they would not cease publishing; but they would suddenly be very polite. Right now, only a handful of patriots are trying to hold back the tide of tyranny for the rest of us - staff at the Center for Constitutional Rights, who faced death threats for representing the detainees yet persisted all the way to the Supreme Court; activists at the American Civil Liberties Union; and prominent conservatives trying to roll back the corrosive new laws, under the banner of a new group called the American Freedom Agenda. This small, disparate collection of people needs everybody's help, including that of Europeans and others internationally who are willing to put pressure on the administration because they can see what a US unrestrained by real democracy at home can mean for the rest of the world. We need to look at history and face the "what ifs". For if we keep going down this road, the "end of America" could come for each of us in a different way, at a different moment; each of us might have a different moment when we feel forced to look back and think: that is how it was before - and this is the way it is now. "The accumulation of all powers, legislative, executive, and judiciary, in the same hands... is the definition of tyranny," wrote James Madison. We still have the choice to stop going down this road; we can stand our ground and fight for our nation, and take up the banner the founders asked us to carry. [ Naomi Wolf's The End of America: A Letter of Warning to a Young Patriot will be published by Chelsea Green in September ] { Chelsea Green Publishing -- THE END OF AMERICA Letter of Warning to a Young Patriot Naomi Wolf Paperback / 168 pages / $13.95 / 2007.08.22 / ISBN 978-1-933392-79-0 http://www.chelseagreen.com/2007/items/endofamerica } * Washington Post -- April 14, 2007 A REASONABLE PLEA AGREEMENT Letter to the Editor http://www.washingtonpost.com/wp-dyn/content/ article/2007/04/13/AR2007041302076.html The April 4 editorial "Spectacle at Guantanamo" left out key factors in the David Hicks trial recently conducted at Guantanamo Bay, Cuba. Mr. Hicks's guilty plea was negotiated by his defense lawyers with the legal adviser to the convening authority for military commissions. The editorial also failed to note that Mr. Hicks's defense lawyers expressly asked to negotiate his plea agreement directly with the office of the convening authority rather than with the prosecutors, because the defense had filed a motion with the military judge to disqualify the chief prosecutor for some of his public statements. Given that, it was unlikely that counsel would be able to engage in constructive plea agreement discussions. Therefore, the convening authority agreed to permit the legal adviser to negotiate directly with defense counsel. The terms of the plea agreement were in no way influenced by any appointed or elected officials outside the office of the convening authority. As in courts-martial, the convening authority and the legal adviser are empowered to negotiate pretrial agreements, but only the convening authority can approve them. As in any plea negotiation, Mr. Hicks agreed to certain terms in exchange for a lighter sentence and his transfer to Australia to serve it. As any federal judge or legal practitioner is aware, plea agreements are negotiated and entered into every day by political appointees (U.S. attorneys) on behalf of the U.S. government. Mr. Hicks's case is no different. THOMAS L. HEMINGWAY Legal Adviser, Office of Military Commissions U.S. Defense Department Washington * New York Times -- April 9, 2007 GUANTANAMO DETAINEES STAGE HUNGER STRIKE By Tim Golden http://www.nytimes.com/2007/04/09/us/09hunger.html A long-term hunger strike has broken out at the American detention center at Guantanamo Bay, Cuba, with more than a dozen prisoners subjecting themselves to daily force-feeding to protest their treatment, military officials and lawyers for the detainees say. Lawyers for several hunger strikers said their clients' actions were driven by harsh conditions in a new maximum security complex. About 160 of the roughly 385 Guantanamo detainees have been moved to the complex since December. Thirteen detainees are now on hunger strikes, the largest number to endure the force-feeding regimen on an extended basis since early 2006, when the military broke a long-running strike with a new policy of strapping prisoners into restraint chairs while they are fed by plastic tubes inserted through their nostrils. The hunger strikers are now monitored so closely that they have virtually no chance to starve themselves. Yet their persistence underscores how the struggle between detainees and guards at Guantanamo has continued even as the military has tightened its control in the past year. "We don't have any rights here, even after your Supreme Court said we had rights," one hunger striker, Majid al-Joudi, told a military doctor, according to medical records released recently under a federal court order. "If the policy does not change, you will see a big increase in fasting." A military spokesman at Guantanamo, Cmdr. Robert Durand of the Navy, played down the significance of the current strike, calling the prisoners' complaints "propaganda." But the protests come as criticism of Guantanamo continues to rise in the United States and abroad. Last week, after the Supreme Court denied a new appeal on behalf of the detainees, the head of the International Committee of the Red Cross delivered a rare public reprimand to the Bush administration, saying the prisoners' ability to contest their detention was inadequate. Newly released Pentagon documents show that during earlier hunger strikes, before the use of the restraint chairs, some detainees lost more than 30 pounds in a matter of weeks. By comparison, the current hunger strike -- in which 12 of the 13 detainees were being force-fed as of Friday -- seems almost symbolic. For instance, the medical records for Mr. Joudi, a 36-year-old Saudi, showed that when he was hospitalized on Feb. 10, he had been fasting for 31 days and had lost more than 15 percent of his body weight. By the time he was transferred a few days later to a "feeding block" where more serious hunger strikers are segregated from other prisoners, his condition had stabilized and his weight was nearly back to an ideal level for a man his size. (His exact weight gain was not recorded.) Mr. Joudi was subsequently flown home and turned over to the Saudi authorities, his lawyer said. Lawyers for several detainees held in the new maximum security complex, known as Camp 6, compared it to "supermax" prisons in the United States. The major differences, they said, are that the detainees have limited reading material and no television, and only 10 of the Guantanamo prisoners have been charged. The Camp 6 inmates are generally locked in their 8-foot-by-10-foot cells for at least 22 hours a day, emerging only to exercise in small wire cages and to shower. Besides those times, they can talk with other prisoners only by shouting through food slots in the steel doors of their cells. "My wish is to die," one reported hunger striker in the camp, Adnan Farhan Abdullatif, a 27-year old Yemeni, told his lawyer on Feb. 27, according to recently declassified notes of the meeting. "We are living in a dying situation." Commander Durand, the Guantanamo spokesman, dismissed such accounts as part of an effort by the prisoners and their lawyers to discredit the detention mission. He described the new unit as much more comfortable than the detainees' previous quarters, and denied that they suffered any greater sense of isolation in the new cell blocks. "This was designed to improve living conditions," Commander Durand said, "and we think it has." Camp 6 was originally designed as a modern, medium-security prison complex for up to 200 inmates, with common areas where they could gather for meals and a large fenced athletic field where they could jog or play soccer outside the high concrete walls. But after a riot last May and the suicides of three prisoners in June, the unit was retrofitted before opening to limit the detainees' freedom and reduce the risk that they might hurt themselves or attack guards, military officials said. As Camp 6 was opening, senior officials expressed concern about how prisoners would react to its greater isolation. Most had been held in makeshift blocks of wire-mesh cells that -- while often hot, noisy and lacking privacy -- allowed them to communicate easily, pray together and even pass written messages. Guantanamo's other maximum-security unit, Camp 5, has cells that face each other across a short hallway, allowing the roughly 100 detainees there to converse fairly easily. In Camp 6, the prisoners can see one another from their cells only when one of them is being moved. At other times, they look out on the stainless-steel picnic tables in the common areas they are not allowed to use. Lawyers for several Camp 6 detainees said their clients were despondent about the move even though, as military officials note, the new cells are 27 square feet larger than the old ones and have air-conditioning, nicer toilets and sinks, and a small desk anchored to the wall. "They're just sitting on a powder keg down there," said one lawyer, Sabin Willett, who, like others, described growing desperation among the prisoners. "You're going to have an insane asylum." Lawyers who visited Guantanamo recently said the detainees reported a higher number of hunger strikers than had the military -- perhaps 40 or more. Military officials said there were sometimes "stealth hunger strikers," who pretend to eat or surreptitiously vomit after eating, but they dismissed the detainees' estimates as exaggerations. Because reporters are prevented from speaking with detainees or visiting most of their cell blocks, it is difficult to verify the conflicting accounts. Hunger strikes have been part of life at Guantanamo almost since the detention center opened in January 2002. They reached a peak in September 2005, when more than 130 detainees were classified as hunger strikers, having refused at least nine consecutive meals, military records show. As the strikes went on, some detainees being force-fed continued to lose weight by vomiting or siphoning their stomachs with the feeding tubes. But by early February 2006, shortly after the military began using restraint chairs during the forced feedings, the number of hunger strikers plunged to three. The number rose again sharply but briefly last May, reaching 86 after three detainees attempted suicide and a riot broke out as the guards searched for contraband. Yet even then, no more than seven strikers were forced into the restraint chair regimen. Three detainees who had been hunger strikers hung themselves on June 10. After July, no more than three detainees subjected themselves to extended forced feeding. That number began to grow again as detainees were moved into Camp 6 in December. By mid-March, the number of hunger strikers reached 17. For the first time, as many as 15 detainees continued with the strikes despite being force-fed in the restraint chairs. Military officials have described the restraint chair regimen as unpleasant but necessary. They originally said prisoners needed to be restrained while digesting, so they could not purge what they were fed. Now, the rationale has changed. The restraints are generally applied "for safety of the detainee and medical staff," records show, and they are kept on for as little as 15 minutes at a time, rather than the two hours commonly used before. Afterward, the prisoners are moved to a "dry cell" and monitored to make sure they do not vomit. Even so, some detainees describe the experience as painful, even gruesome. One Sudanese detainee, Sami al-Hajj, a 38-year-old former cameraman for Al Jazeera, described feeling at one point that he could not bear the tube for another instant. "I said I would begin to scream unless they took it out," he wrote in a recent diary entry given to his lawyer. "They finally did." Stephen H. Oleskey, who represents Saber Lahmar, an Algerian religious scholar whom military officials accused of propagating a religious legal ruling that was linked to the suicides, said of his client: "The man has been in segregation -- virtual isolation -- for over nine months. Physically and emotionally, he's collapsing. We think this punishment does exceed what the law allows, and that he won't survive." Military officials said Mr. Lahmar and other detainees had received adequate medical attention. [ Margot Williams and William Glaberson contributed reporting. ] * Brisbane Times -- April 7, 2007 IT SEEMS HM IS NOT AMUSED BY GUANTANAMO BAY by Barry Everingham http://www.brisbanetimes.com.au/news/world/ it-seems-hm-is-not-amused-by-guantanamo-bay/2007/04/06/1175366474409.html It was almost Christmas last year and something had to done about David Hicks. John Howard was feigning concern; the polls weren't coming up roses. But a "Dear John" letter would have got a public service reply so there was only one more option: the viceroy of Australia, Michael Jeffery. Second thoughts - Howard has sidelined him so I had to go to the top: the head of state of Australia. The subsequent chain of events was startling, and political. The Queen of Australia is as savvy as they say she is. Could you, Your Majesty, I asked, do something to help your Australian subject David Hicks? I outlined in the letter what Hicks had been subjected to for the past five years, I told her that John Howard, Alexander Downer and Philip Ruddock were in the thrall of the most unpopular and ridiculed President of the United States of America and I reminded her that the plea in our passports from her viceroy, written on her behalf, to allow us all to pass without let or hindrance was in this case being ignored. I guess I was dobbing everyone in. But write I did and six weeks later, a thick envelope, with an embossed royal coat of arms, was dropped into my letterbox. The contents, written by the Queen's senior correspondence officer, went as follows: "The Queen has asked me to thank you for your letter of 12th December regarding your concern over the case of Mr David Hicks, who you understand is currently being held at Guantanamo Bay in Cuba. "I must tell you, however, that this is not a matter in which Her Majesty would intervene. Nevertheless, I have been instructed to forward your letter to the Right Honourable Margaret Beckett, MP, the Secretary of State for Foreign and Commonwealth Affairs, so that she may know of your approach to The Queen on this matter." What? HM sent my letter to the British Foreign Minister, not to Lord Downer of Baghdad: has someone not told Elizabeth we are no longer governed by Whitehall? I then wrote to Beckett outlining the concerns of millions of Australians about Hicks and pointed out the comfort her own utterances on the hideousness of Guantanamo Bay had given us. I also asked her if Howard, Downer or Ruddock had ever asked who she approached in Washington to demand, successfully, the return of the Brits incarcerated in the Cheney-Rumsfeld playpen for US military guards. The reply to this letter came not from Beckett - instead it was written by Nicolas Jankowski of the Special Cases Team in the Counter Terrorism Department of the Foreign and Commonwealth Office. I'd worked in London over the years and still have what passes for good contacts in the halls of government, so I called someone I trust and outlined the chain of events. The reply I received was startling. Mate, he said, you opened a can of worms; the letter to HM had been all over Whitehall. Her Majesty had kept an eye on the process. He intimated Canberra had been in the loop as well but wouldn't elaborate. Nicolas Jankowski wasn't so shy. He wouldn't comment on Hicks's case because, as he reminded me, there was an appeal before the courts on the lad's citizenship application. He then proceeded to drop a huge bucket on the entire Guantanamo Bay process, describing it as unacceptable and reminding me that Tony Blair had already said it should be closed. He said the British Government continued to raise humanitarian concerns about detentions at Guantanamo Bay with the US authorities and would continue raising the concerns and work with the US to resolve the issues. Jankowski further pointed to the necessity of continued engagement by the US with the International Committee of the Red Cross, the United Nations and others on the issue of Guantanamo Bay. He said the British Government "noted" the assurances given by the US Government on the issue of detainee treatment more widely and quoted the confirmation of the Secretary of State, Condoleezza Rice, that the US respected the rules of international law, including the UN's Convention on Torture. There is no record of Howard, Downer or Ruddock being so thorough. It's as though they didn't care what happened to Hicks and may even see Guantanamo Bay in an acceptable light. Be all that as it may. The exercise underscored to me that although the concept of this country having an absent foreign monarch as head of state is repugnant, the Queen's reputation for having concern for the less fortunate is intact. She is a role model for the Australians who will surely succeed her. And a footnote: Queen Elizabeth's letter was written and posted on Australia Day. [ Barry Everingham is a Melbourne writer and broadcaster. ] * Washington Post -- April 1, 2007 AUSTRALIAN'S PLEA DEAL WAS NEGOTIATED WITHOUT PROSECUTORS by Josh White http://www.washingtonpost.com/wp-dyn/content/ article/2007/03/31/AR2007033100976.html GUANTANAMO BAY, Cuba, March 31 -- The plea deal that allows Australian David M. Hicks to leave the detention facility here with a nine-month sentence was negotiated between defense attorneys and the convening authority for military commissions without the knowledge of prosecutors, lawyers from both sides said. The deal shows that the politically appointed authority has the power to personally decide the fate of America's most notorious terrorism suspects. Marine Maj. Michael "Dan" Mori, representing Hicks, took his plea negotiations to Susan J. Crawford, the top military commission official, rather than dealing with prosecutors who were seeking a lengthy penalty, according to both sides in the case. In what became a highly politicized situation involving the Australian government, Crawford allowed Hicks a short sentence in exchange for a year-long gag order, a guarantee that he will not allege illegal treatment at the hands of his U.S. captors, and a waiver of any right to appeal or sue. Though Australian officials have said they were not directly involved in plea negotiations, Mori declined to answer questions about what, if any, influence they had. Australian Prime Minister John Howard, up for reelection this year, has been under public pressure to bring Hicks home. He turned to Vice President Cheney to implore that the case be resolved. Crawford was the Defense Department's inspector general from 1989 to 1991, when Cheney was defense secretary. "What an amazing coincidence that, with an election in Australia by the end of the year, he gets nine months and he is gagged for 12 months from talking about it," said Australian lawyer Lex Lasry, who was in Cuba to monitor the case over the past week. Australia's foreign minister, Alexander Downer, told reporters in Australia on Friday night that there were initial plea discussions about Hicks's case two years ago and that the negotiations picked up speed recently. But, he said, "these are not decisions of the Australian government." As the deal developed in recent weeks, Air Force Col. Morris Davis, the lead prosecutor for military commissions, and his team on the Hicks case were not in the loop. Davis said he learned about the plea agreement Monday morning when the plea papers were presented to him, and he said the prosecution team was unaware that discussions had been taking place. "We got it before lunchtime, before the first session," Davis said at a news conference Friday night. In an interview later, he said the approved sentence of nine months shocked him. "I wasn't considering anything that didn't have two digits," he said, referring to a sentence of at least 10 years. Army Maj. Beth Kubala, a spokeswoman for the Pentagon's Office of Military Commissions, said Crawford has the authority to approve plea deals and can use her discretion. "Like it or not, the detainees at Guantanamo are from different countries, and that sometimes is a factor," Kubala said. Davis said he could have chosen not to sign the papers but it would have been just a symbolic move. He said that he hopes the case does not set a precedent but that it is possible that other plea deals could come in the 75 or so other detainee cases his office is considering for trial. Marine Lt. Col. Kevin Chenail, who prosecuted the case with Navy Lt. Brian Weinthal, said he was pleased with the outcome of the case because the jury panel agreed to the maximum punishment available to them under the deal -- seven years -- with very little evidence before them. Crawford's deal overrides that term, reducing it to nine months. Chenail said he thought he could have gotten a sentence of decades. Prosecutors had prepared for as many as 30 witnesses at trial and wanted to press forward with a case that Chenail called "extremely important." "Sometimes you get too close to a case, but I thought he was one of the most dangerous people out there because he was a Westerner who bought into al-Qaeda," Chenail said of Hicks. "He's the kind of person who could use that to his advantage to infiltrate and earn people's trust." Mori scored a major victory with the deal and said he's not sure Hicks has fully grasped it yet. "I don't think David will be able to show any real emotion until he gets off the plane in Australia," Mori said. "David has some certainty now." The plea agreement also set up what turned out to be irrelevant theatrics in the courtroom on Monday afternoon, when Hicks's two civilian attorneys challenged military commission rules and the presiding officer, Col. Ralph H. Kohlmann, removed them from the case. They each dramatically stormed out of the courtroom, leaving Hicks to give what appeared to be scripted answers about "losing" his attorneys and wanting fairness. Joshua Dratel, one of Hicks's attorneys who left, had signed the plea agreement and its specific parameters earlier in the day. Mori said Kohlmann did not know that the plea agreement had been struck until after the first session on Monday, but Hicks did, as did the defense attorneys and prosecutors. Kohlmann, after being presented with the documents later in the day, called a surprise session Monday night to announce the guilty plea. * Candide's Notebooks / Wall Street Journal-- March 31, 2007 Lt. Col. Stuart Couch THE CONSCIENCE OF THE COLONEL by Jess Bravin http://pierretristam.com/Bobst/07/wf040107.htm When the Pentagon needed someone to prosecute a Guantanamo Bay prisoner linked to 9/11, it turned to Lt. Col. V. Stuart Couch. A Marine Corps pilot and veteran prosecutor, Col. Couch brought a personal connection to the job: His old Marine buddy, Michael "Rocks" Horrocks, was co-pilot on United 175, the second plane to strike the World Trade Center on Sept. 11, 2001. The prisoner in question, Mohamedou Ould Slahi, had already been suspected of terrorist activity. After the attacks, he was fingered by a senior al Qaeda operative for helping assemble the so-called Hamburg cell, which included the hijacker who piloted United 175 into the South Tower. To Col. Couch, Mr. Slahi seemed a likely candidate for the death penalty. "Of the cases I had seen, he was the one with the most blood on his hands," Col. Couch says. But, nine months later, in what he calls the toughest decision of his military career, Col. Couch refused to proceed with the Slahi prosecution. The reason: He concluded that Mr. Slahi's incriminating statements -- the core of the government's case -- had been taken through torture, rendering them inadmissible under U.S. and international law. The Slahi case marks a rare instance of a military prosecutor refusing to bring charges because he thought evidence was tainted by torture. For Col. Couch, it also represented a wrenching personal challenge. Laid out starkly before him was a collision between the government's objectives and his moral compass. These kinds of concerns will likely become more prevalent as other high-level al Qaeda detainees come before military commissions set up by the Bush administration. Guantanamo prosecutors estimate that at least 90% of cases depend on statements taken from prisoners, making the credibility of such evidence critical to any convictions. In Mr. Slahi's case, Col. Couch would uncover evidence the prisoner had been beaten and exposed to psychological torture, including death threats and intimations that his mother would be raped in custody unless he cooperated. ---------------------------------- {sidebar} ----------------------------------- ON THE TRAIL OF SLAHI Mohamedou Ould Slahi attracted the attention of U.S. intelligence as early as 1998, years before he would be suspected of indirectly helping to round up future hijackers for the 9/11 attacks. KEY DOCUMENTS * Read a transcript of Mr. Slahi's hearing before a Combatant Status Review Tribunal at Guantanamo Bay, Cuba. http://online.wsj.com/public/resources/documents/couch-slahihearing-03312007.pdf * Read the unclassified summary of the spring 2005 Schmidt-Furlow report presenting the results of a Pentagon investigation into detainee abuse at Guantanamo. The section detailing Mr. Slahi's treatment is headed "second special interrogation plan," on page 21. http://www.defenselink.mil/news/Jul2005/d20050714report.pdf * Read a transcript of Mr. Slahi's Administrative Review Board hearing at Guantanamo Bay in December 2005. http://online.wsj.com/public/resources/documents/couch-slahiARB-03312007.pdf * See the Defense Meritorious Service Medal and citation awarded to Col. Couch by Defense Secretary Donald Rumsfeld in September 2006. http://online.wsj.com/public/resources/documents/couch-DMSMaward-03312007.pdf * Read a letter Mr. Slahi sent to his attorneys, Nancy Hollander and Sylvia Royce, from Guantanamo Bay on Nov. 9, 2006. http://online.wsj.com/public/resources/documents/couch-slahiletter-03312007.pdf -------------------------------- {end sidebar} --------------------------------- Raised in Asheboro, N.C., Col. Couch, now 41 years old, was an Eagle Scout, a graduate of Duke and commander of his Naval ROTC battalion. An Anglican, Col. Couch says he counts among his heroes two men known for making a public commitment to their faith: C.S. Lewis, the academic and book author, and Dietrich Bonhoeffer, the Lutheran pastor hanged by the Nazis in 1945. In 1987, Col. Couch joined the Marines to be a pilot before an assignment on the squadron's legal desk inspired him to enroll in law school. After graduating from Campbell University, Buies Creek, N.C., he was assigned to the team prosecuting a flight crew for a 1998 incident in Aviano, Italy, where a Marine Prowler clipped a ski gondola cable, killing 20. He still keeps in touch with relatives of the accident's victims. Col. Couch left active duty but found private practice boring. After 9/11, he asked to return to the military. When President Bush issued his Nov. 13, 2001 order creating the first iteration of military commissions, he volunteered. "I did that to get a crack at the guys who attacked the United States," he says. "I wanted to do what I could do with the skill set that I had." Col. Couch began his assignment at the Office of Military Commissions in August 2003. Soon after arriving at the commissions' offices in Crystal City, Arlington, Va., he was handed files on several Guantanamo prisoners. The Slahi file stood out as the one directly connected to 9/11. Mr. Slahi, now 37, is the eighth of 12 children born to a Mauritanian camel herder, according to his lawyers. He studied electrical engineering in Germany and later ran an Internet cafe. Before 9/11, U.S. authorities tried unsuccessfully to link him to the so-called Millennium Plot to blow up Los Angeles International Airport. Mauritanian authorities picked him up after Sept. 11, and shipped him to Jordan, according to testimony he gave to a Guantanamo detention board. The U.S. got a break one year later, when Ramzi Binalshibh, a top al Qaeda operative, was captured in Pakistan. He told the CIA that in 1999, Mr. Slahi sent him and three future 9/11 hijackers -- Mohammed Atta, Ziad Jarrah and Marwan al-Shehhi -- from Germany to Pakistan, and then to al Qaeda headquarters in Afghanistan. There, according to the 9/11 Commission, Mr. bin Laden assigned them to the 9/11 operation. But beyond Mr. Binalshibh's uncorroborated statements, Col. Couch had little additional evidence. In Crystal City, morale was sinking. Several junior officers complained that, in its rush to win convictions, the office was proceeding with shaky cases, overlooking allegations of abuse and failing to protect exculpatory evidence. Allegations of torture at places such as Abu Ghraib had not yet surfaced, but some officers were starting to express their unease in private. A handful of prosecutors would later quit rather than take part in trials they considered rigged. Subsequent internal reviews found no criminal wrongdoing, but prompted a shake- up in which the then-chief military commissions prosecutor was ousted. Col. Couch had his own misgivings. On his first visit to Guantanamo in October 2003, he recalls preparing to watch an interrogation of a detainee when he was distracted by heavy-metal music. Accompanied by an escort, he saw a prisoner shackled to a cell floor, rocking back and forth, mumbling as strobe lights flashed. Two men in civilian dress shut the cell door and told Col. Couch to move along. "Did you see that?" he asked his escort. The escort replied: "Yeah, it's approved," Col. Couch says. The treatment resembled the abuse he had been trained to resist if captured; he never expected Americans would be the ones employing it. The incident "started keeping me up at night," he says. "I couldn't stop thinking about it." Col. Couch contacted a senior Marine lawyer who had been an informal mentor. The officer said: "I know there's a lot of stuff going on, and that's why we need people like yourself in this situation," Col. Couch recalls. "You're shirking your responsibility if you've got issues and you're not willing to do something about it." "He was looking for a sanity check, asking: 'Am I crazy or does this smell bad to you?' " the Marine lawyer, now a retired brigadier general recalls. "My response was, 'yeah, this is a problem and you need to work this problem.' " Col Couch's wife, Kim, a nurse, says her husband began to rue each coming week. "I called it the Sunday Night Blues," she says. "It got worse and worse." Under the Pentagon structure, Col. Couch had no direct contact with his potential defendants, but received instead summaries of their statements. In late 2003, Mr. Slahi suddenly started corroborating the Binalshibh allegations. "After a while, I just couldn't keep up with him because things were coming out every day," Col. Couch says. "He was giving like a "Who's Who" of al Qaeda in Germany and all of Europe." The sanitized reports reaching Col. Couch made no mention of what spurred this cooperation. Intelligence agencies refused to share all the information they had on the prisoner. A colleague let on that Mr. Slahi had begun the "varsity program" -- an informal name for the Special Interrogation Plan authorized by then-Defense Secretary Donald Rumsfeld for the most recalcitrant Guantanamo prisoners. Col. Couch says he and his case investigator, an agent detailed from the Naval Criminal Investigative Service, began an "under the table" effort to find out what made Mr. Slahi break. Col. Couch says he was suspicious about the sudden change, and felt he needed to know all the circumstances before bringing the case to trial. "It was like Hansel and Gretel, following bread crumbs," Col. Couch says. The agent spoke to intelligence officers and others with more direct knowledge, pursued documents with details of the interrogations, and passed his findings on to the prosecutor. What emerged, Col. Couch believed, was torture. Initially, Mr. Slahi said he was pleased to be taken to Guantanamo. "I thought, this is America, not Jordan, and they are not going to beat you," he told his detention hearing. But after Mr. Binalshibh named him as a top al Qaeda member, "my life...changed dramatically," Mr. Slahi said. The account of Mr. Slahi's treatment has been pieced together from interviews with government officials, official reports and testimony, as well as Mr. Slahi's attorneys and Col. Couch. Col. Couch wouldn't discuss classified information, including aspects of the Slahi interrogation involving the CIA. Initially, Mr. Slahi denied having al Qaeda connections, frustrating his interrogators. On May 22, 2003, a Federal Bureau of Investigation interrogator said, "this was our last session; he told me that I was not going to enjoy the time to come." In the following weeks, Mr. Slahi said, he was placed in isolation, subjected to extreme temperatures, beaten and sexually humiliated. The detention-board transcript states that at this point, "the recording equipment began to malfunction." It summarizes Mr. Slahi's missing testimony as discussing "how he was tortured while here at GTMO by several individuals." Mr. Slahi was put under more intense interrogation. On July 17, 2003, a masked interrogator told Mr. Slahi he had dreamed of watching detainees dig a grave, according to a 2005 Pentagon report into detainee abuse at Guantanamo, headed by Air Force Lt. Gen. Randall Schmidt and Army Brig. Gen. John Furlow. (Gen. Furlow later testified that Mr. Slahi was "the highest value detainee" at Guantanamo, "the key orchestrator of the al Qaeda cell in Europe.") The interrogator said he saw "a plain, pine casket with [Mr. Slahi's] identification number painted in orange lowered into the ground." Three days later, the interrogator told Mr. Slahi "that his family was 'incarcerated,'" the report said. On Aug. 2, an interrogation chief visited the prisoner posing as a White House representative named "Navy Capt. Collins," the report said. He gave the prisoner a forged memorandum indicating that Mr. Slahi's mother was being shipped to Guantanamo, and that officials had concerns about her safety as the only woman amid hundreds of male prisoners, according a person familiar with the matter. "Capt. Collins" told Mr. Slahi "that if he wanted to help his family he should tell them everything they wanted to know," the report continued. The same day, an interrogator made a "death threat" to Mr. Slahi, Gen. Schmidt said in testimony to the Senate Armed Services Committee. According to records cited by the report, the interrogator advised Mr. Slahi "to use his imagination to think of the worst possible scenario he could end up in." In his detention-board testimony, Mr. Slahi provided further details, as did other people familiar with the matter. Two men took a shackled, blindfolded Mr. Slahi to a boat for a journey into the waters of Guantanamo Bay. The hour-long trip apparently led Mr. Slahi to think he was to be killed and, in fear, he urinated in his pants. After making land, "two Arab guys" took him away, beat him and turned him over to a "doctor who was not a regular doctor [but] part of the team," Mr. Slahi said. The doctor "was cursing me and telling me very bad things. He gave me a lot of medication to make me sleep," Mr. Slahi said. After two or three weeks, Mr. Slahi said, he broke, "because they said to me, either I am going to talk or they will continue to do this." On Sept. 8, 2003, according to the Pentagon report, Mr. Slahi asked to see "Capt. Collins." Mr. Slahi corroborated the account of Mr. Binalshibh and provided an extensive list of other al Qaeda names. In later testimony to the Army Inspector General, Gen. Schmidt said he concluded that the interrogation chief "was a rogue guy," a "zealot" who "essentially was having a ball." A Pentagon spokesman says the interrogation chief, who invoked his right against self-incrimination and didn't testify, was not court- martialed. The spokesman declines to say what discipline he received. Military and law-enforcement officials started warning the Bush administration in 2002 that its unorthodox interrogation practices, which the president has called "tough" and "necessary," were hurting the ability of prosecutors to bring cases to court. Officials expect the concern to arise in particular with 14 "high-value" al Qaeda suspects transferred to Guantanamo in September after years of secret CIA interrogation. They include Khalid Sheikh Mohammed, the man who claimed responsibility for planning 9/11. Some detainees, including Mr. Mohammed, have alleged they were tortured. Pentagon reviews documented cruel and degrading treatment, while declining to classify such abuse as torture. "There's a serious question of whether they will ever be able to legitimately prosecute those individuals," if necessary evidence was produced through torture, says retired Maj. Gen. Thomas Romig, who served as the Army's top uniformed lawyer, the judge advocate general, from 2001 to 2005. Gen. Romig, recently appointed dean at Washburn University law school, Topeka, Kan., says within the government "there was a view that we have got to get intelligence out of these guys, and we don't care we if we prosecute them or not." The military commissions trying the cases of foreign terrorists don't hew to the rules that govern civilian courts or courts-martial. The 2006 Military Commissions Act permits use of evidence obtained before Dec. 30, 2005, through "cruel, inhuman or degrading" methods, although it bars any obtained by torture. Top U.S. government officials won't specify which practices cross the line beyond stating that prisoners should be treated "humanely." Such ambiguity has forced decision-making down the chain of command. Even Guantanamo's chief prosecutor, Air Force Col. Moe Davis, says he's still not sure how the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment applies to military commissions. A report into abuses at Guantanamo concluded that the "threats" made to Mr. Slahi "do not rise to the level of torture as defined under U.S. law" but did violate the Uniform Code of Military Justice, which governs the conduct of the armed forces. The Pentagon won't say how the report reached that conclusion. By May 2004, Col. Couch had most of the picture relating to Mr. Slahi's treatment, and faced a painful dilemma: Could he seek a conviction based on statements he thought were taken through torture, as permitted by President Bush's November 2001 military commission order citing a "state of emergency?" Or was he nonetheless bound by the Torture Convention, which bars using statements taken "as a result of torture...as evidence in any proceedings." The convention says "no exceptional circumstances whatsoever" can be cited to justify torture, which it defines broadly. The 1994 federal statute implementing the treaty contains additional definitions, including the "threat of imminent death" or "severe physical pain or suffering," as well as the actual or threatened use of "mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality." Col. Couch was uneasy over interfering with plans to try Mr. Slahi, given the detainee's history. He turned to others with his dilemma, including Marine lawyers he knew and his wife's two brothers -- one a Protestant theologian, the other a retired Marine infantry officer. Because of the classified nature of the information, Col. Couch didn't give them specifics about the case, and spoke only in generalities. Their advice conflicted. "He wanted to be a good solider and yet on the other hand felt his duty to his God to be the greatest duty that he had," recalls Bill Wilder, director of educational ministries at the Center for Christian Study, Charlottesville, Va. "He said more than once to me that human beings are created in the image of God and as a result we owe them a certain amount of dignity." Mr. Wilder says he agreed with Col. Couch's concerns. "Stuart, you need to pray about this," Mr. Wilder says he advised. Briant Wilder, the other brother and a former Marine lieutenant, urged Col. Couch to instead consider the context of the war on terrorism, where obtaining intelligence could be crucial to protecting innocent lives. "I have to also say that I don't agree with everybody's definition of torture," Mr. Wilder says. "If some of the things that people say are torture were torture, then I was tortured at Officer Candidate School at Quantico. And so was he." In May 2004, attending a baptism at Virginia's Falls Church, Col. Couch joined the congregation in reciting the liturgy. The reading concluded, as is typical, with the priest asking if congregants will "respect the dignity of every human being." "When I heard that, I knew I gotta get off the fence," Col. Couch says. "Here was somebody I felt was connected to 9/11, but in our zeal to get information, we had compromised our ability to prosecute him." He says, in retrospect, the tipping point came with the forged letter about Mr. Slahi's mother. "For me, that was just, enough is enough. I had seen enough, I had heard enough, I had read enough. I said: 'That's it.' " In May 2004, at a meeting with the then-chief prosecutor, Army Col. Bob Swann, Col. Couch dropped his bombshell. He told Col. Swann that in addition to legal reasons, he was "morally opposed" to the interrogation techniques "and for that reason alone refused to participate in [the Slahi] prosecution in any manner." Col. Swann was indignant, Col. Couch says, replying: "What makes you think you're so much better than the rest of us around here?" Col. Couch says he slammed his hand on Col. Swann's desk and replied: "That's not the issue at all, that's not the point!" An impassioned debate followed, the prosecutor recalls. Col. Swann said the Torture Convention didn't apply to military commissions. Col. Couch asked his superior to cite legal precedent that would allow the president to disregard a treaty. The meeting ended when Col. Swann asked the prosecutor to turn over the Slahi files so the case could be reassigned, Col. Couch recalls. Through a spokesman, Col. Swann declined to comment for this article. Col. Swann retired from the Army in 2005. He continues, as a civilian employee, to serve as deputy chief prosecutor, playing a major role in commission operations. Other trial prosecutors in the office say they respected Col. Couch's decision. "I thought his conduct was perfectly appropriate and I agreed with his approach," says retired Navy Cmdr. Scott Lang, now a state prosecutor in Virginia. A week later, Col. Couch put his position in writing and asked that his concerns be raised with the Pentagon's general counsel, William J. Haynes II. The legal adviser to the military commissions office, Air Force Brig. Gen. Thomas Hemingway, says: "Mr. Haynes was not informed of the issues raised by Lt. Col. Couch nor did he expect to be told about all internal operations within the Office of Military Commissions." Gen. Hemingway says Col. Swann "was aware the interrogation techniques used were under investigation at the time Lt. Col. Couch expressed misgivings about the information he had received. Col. Swann removed Lt. Col. Couch from the case to assuage his concerns." In a written statement, the Defense Department says it "cannot comment on Mohamedou Ould Slahi because he is under investigation. It would be inappropriate for us to discuss ongoing cases that are pending prosecution." In March 2005, Col. Couch considered quitting, frustrated by how the office was run. Lt. Col. Daniel Daugherty, one of Col. Couch's best friends, urged him in an email to reconsider. "Personally I would rather be fired than quit," Col. Daugherty wrote. "Being fired for your ethics is (in my view) better than walking away." With the Slahi prosecution on ice, Col. Couch continued work on other cases -- including another "varsity program" prisoner, Mohammmed al-Qahtani, who, according to army report overseen by Gens. Schmidt and Furlow, had been made to wear women's underwear, leashed, forced to perform dog tricks and berated as a homosexual. Col. Couch refused to use statements obtained during these interrogations. But he determined the prosecution could continue based on a separate source of evidence compiled by the FBI before Mr. Qahtani's Guantanamo interrogation. He was also one of the prosecutors who worked on the case of Salim Hamdan, Mr. bin Laden's former driver. Mr. Hamdan's case would eventually go to the Supreme Court, which used the case to strike down the administration's first attempt to create a military commissions system. Col. Davis, the Guantanamo chief prosecutor, says Mr. Slahi remains among the 75 or so prisoners potentially eligible for trial. He says no one is assigned to the case and that it's unclear when Mr. Slahi will be charged, due to Col. Couch's concerns and a staff shortage. Today, Mr. Slahi is detained in private quarters at Guantanamo Bay, with a television, a computer and a tomato patch to tend, according to people familiar with the matter. "Since 2004, I really have no complaints," Mr. Slahi told a military detention board. He has asked to be resettled in the U.S., an option Pentagon officials have not ruled out. Col. Davis declines to comment on plea negotiations. A lawyer representing Mr. Slahi, Nancy Hollander, says that if charged with a crime, Mr. Slahi would plead not guilty. In a September 2006 letter to his attorneys, Mr. Slahi joked about their request that he detail his discussions with interrogators. "Are you out of your mind! How can I render uninterrupted interrogation that has been lasting the last 7 years. That's like asking Charlie Sheen how many women he dated," Mr. Slahi writes. He divided his time into pre- and post-torture eras. In the latter, he wrote, "I yessed every accusation my interrogators made." Col. Couch had been assigned to the prosecutor's office for a three year stint. When it came to an end, Col. Couch decided not to renew his assignment. He says there was no attempt to remove him from office. After he left, Defense Secretary Rumsfeld awarded Col. Couch the Defense Meritorious Service Medal for his work on Guantanamo prosecutions as is typical when officers move on to new assignments. The citation describes him as "steady in faith, possessed by moral courage and relentless in the pursuit of excellence." In August 2006, he took on a new assignment as a judge on the Navy-Marine Corps Court of Criminal Appeals. Col. Couch says he's still frustrated that the actions of the U.S. government helped ruin the case against Mr. Slahi. "I'm hoping there's some non-tainted evidence out there that can put the guy in the hole," he says. * Los Angeles Times -- March 1, 2007 PADILLA RULED FIT FOR TERROR TRIAL In a victory for the government, his judge says the defendant has proven himself mentally competent. By Carol J. Williams http://www.latimes.com/news/nationworld/nation/ la-na-padilla1mar01,1,2786172.story MIAMI -- Suspected Al Qaeda operative Jose Padilla is competent to stand trial on terrorism charges because he understands the case against him and has already shown himself capable of assisting in his own defense, a federal judge ruled Wednesday. The decision by U.S. District Judge Marcia Cooke was a victory for the government, which has alleged in a three-count indictment that Padilla was part of a North American terrorist cell that recruited, trained and supported Islamic militants seeking to carry out acts of violence. Anthony Natale, lead attorney on Padilla's four-man public defender team, had argued a few hours earlier at the conclusion of a four-day hearing that Cooke should find his client unfit to proceed. Natale urged Cooke to send Padilla to a mental hospital where he could be treated for what the defense called debilitating anxiety and post-traumatic stress disorder. The defense had contended that Padilla, a 36-year-old former Chicago gang member, was mentally damaged by the 3 1/2 years he was held without charges at the Navy brig in Charleston, S.C. The lawyers say Padilla was deprived of human contact and subjected to dehumanizing stresses that amounted to torture. Cooke prefaced her ruling by saying she might conduct another hearing on the torture allegations before Padilla's trial, set to begin April 16. The defense has moved for dismissal of the case on the grounds of "outrageous government conduct" during Padilla's time in the brig. "That discussion is for another day," she said of the allegations of mistreatment. She also said her ruling Wednesday did not prejudice her potential consideration of Padilla's brig experiences. The judge pointed to the October 2006 defense motion detailing the alleged abuses in military custody as evidence that the defendant comprehends the legal proceedings and can provide his lawyers meaningful information when he wants to. "This defendant clearly has the capacity to assist his attorneys," she said. "He had to communicate something to his lawyers in order for counsel to file that motion." She also appeared to fault Padilla for failing to cooperate fully with three mental health professionals who attempted to conduct mental fitness tests. Two experts hired by the defense diagnosed Padilla with post-traumatic stress disorder, but the court-ordered psychological evaluator said the defendant was fit for trial and that any failure to collaborate with his lawyers was "volitional." Padilla, in tan cotton prison garb, sandals and shackles, stood impassively as Cooke read her decision. He shook hands with Natale and gave him a rueful smile. Neither the defense nor the prosecution would comment on the ruling or predict the next step in the complicated case. But one assistant U.S. attorney was overheard saying to another as they boarded an elevator: "One down, about 52 to go." Padilla, a U.S. citizen of Puerto Rican ancestry who converted to Islam during a previous prison sentence, was arrested at Chicago's O'Hare International Airport in May 2002, when he returned from at least six years abroad, including time in Egypt, Pakistan and Afghanistan. Then-Atty. Gen. John Ashcroft accused Padilla of being part of a plot to detonate a radioactive "dirty bomb" in a U.S. city. President Bush declared Padilla an "enemy combatant," and Padilla was sent to the brig where he reportedly endured months of sensory deprivation followed by alternating extremes of light and darkness, silence and noise. As the U.S. Supreme Court was pondering a ruling on the extent of the president's powers to hold a U.S. citizen indefinitely without charges, the government indicted Padilla on charges of conspiracy and material support to terrorism in November 2005. He was transferred two months later from the brig to the federal court system. There has been no mention of the dirty bomb accusation in the civilian court procedures. [ carol.williams@latimes.com ] * Los Angeles Times -- February 28, 2007 ASPECTS OF PADILLA'S TREATMENT CONFIRMED A brig official confirms that the terrorism suspect had no timepiece or natural light -- and sometimes no light at all. By Carol J. Williams http://www.latimes.com/news/nationworld/nation/ la-na-padilla28feb28,1,4895939.story MIAMI -- With no clock, watch or natural light to guide him, terrorism suspect Jose Padilla was jailed at a Navy brig in timeless isolation while anonymous jailers monitored him around the clock, a brig official testified Tuesday. The disclosures in a federal courtroom by Sanford Seymour, technical director of the Navy detention facility in Charleston, S.C., confirmed for the first time some of the conditions of Padilla's detention. His defense attorneys contend that Padilla's sensory deprivation and treatment were tantamount to torture. U.S. District Judge Marcia Cooke called Seymour and two other brig officials to testify in a hearing on Padilla's competency to stand trial on charges of conspiracy and material support to terrorism. Cooke cautioned defense attorneys that they could only question the witnesses about their conversations with a federal Bureau of Prisons psychologist. A separate defense motion to dismiss the charges due to "outrageous government conduct" may open the torture issue at a later hearing. The forensic psychologist, Rodolfo Buigas, testified Monday that Padilla suffered from anxiety and a personality disorder but was otherwise fit to proceed. But his report referred to the brig officials, so the judge had to allow defense attorneys to cross-examine them. Padilla had refused to submit to psychological testing by Buigas, claiming to have repeatedly undergone examination since his May 2002 arrest at Chicago's O'Hare International Airport. U.S. officials contend he spent at least six years abroad recruiting, plotting and bankrolling terrorism. Two competency experts hired by the defense said last week that Padilla, 36, had sustained mental injury and post-traumatic stress disorder from his brig experience, leaving him incompetent to assist in his own defense. Seymour, a civilian who oversees correctional procedures at the military brig, appeared reluctant to disclose details of the "special care" ordered by the federal government for Padilla. Prolonged silences by Seymour followed each of federal Public Defender Michael Caruso's questions, as the witness waited for prosecutor Stephanie Pell to object, which she did at least a dozen times. When Cooke said he should answer, Seymour said he had "no specific recollection," asked to hear the question again, or gave a cryptic response. What emerged from the cross-examination was that Padilla had little human contact during his 3 1/2 -year incarceration in the brig, that both windows in his cell were covered to create a blackout, and that the electric light in his cell could only be activated by jailers and was, like his Koran, unavailable for unspecified reasons or periods of time. Caruso was prevented from pursuing matters of Padilla's detention other than those that Seymour had discussed with Buigas in an hourlong conversation the witness said occurred "several weeks ago." Seymour said he neither offered nor was asked about the removal of Padilla's cell mirror, his access to showers or the length and frequency of the prisoner's interrogations. He confirmed that he had on a couple of occasions observed Padilla weeping. Asked by Buigas about Padilla's claim to have been administered LSD by his interrogators, the corrections chief said he told the psychologist that the prisoner had been given a flu shot. As to the defendant's general torture allegations, Seymour said he told Buigas: "I know of no physical abuse that occurred." Brig psychologist Craig Noble also testified, confirming that he told Buigas of his two brief interactions with Padilla. The first was a mental health intake assessment on June 10, 2002, when Padilla arrived; the second was two years later when he interviewed Padilla through the "cuff hole" his cell door. Noble said he found Padilla's mental health "unremarkable" both times. A defense attorney asked, based on brig records, whether Noble's contact with Padilla had lasted no more than two minutes, but the witness was not allowed to answer the question because Buigas hadn't asked about the duration. Maj. Andrew Cruz, a brig social worker who had monthly contact with Padilla, was also summoned to testify. But he was recently deployed to Afghanistan, and did not answer a call that had been arranged for him to testify by speakerphone. Cooke said she would hear final arguments on Padilla's competency today, but gave no indication when she might rule. If Padilla is judged fit to proceed, his motion for dismissal for outrageous government behavior could prompt a hearing at which the brig abuse allegations would be more thoroughly explored. Padilla's trial is set for April 16. [ carol.williams@latimes.com ] * Washington Post -- February 28, 2007 NEW LIGHT SHED ON CIA'S 'BLACK SITE' PRISONS By Dafna Linzer and Julie Tate http://www.washingtonpost.com/wp-dyn/content/ article/2007/02/27/AR2007022702214.html On his last day in CIA custody, Marwan Jabour, an accused al-Qaeda paymaster, was stripped naked, seated in a chair and videotaped by agency officers. Afterward, he was shackled and blindfolded, headphones were put over his ears, and he was given an injection that made him groggy. Jabour, 30, was laid down in the back of a van, driven to an airstrip and put on a plane with at least one other prisoner. His release from a secret facility in Afghanistan on June 30, 2006, was a surprise to Jabour -- and came just after the Supreme Court rejected the Bush administration's assertion that the Geneva Conventions do not apply to prisoners like him. Jabour had spent two years in "black sites" -- a network of secret internment facilities the CIA operated around the world. His account of life in that system, which he described in three interviews with The Washington Post, offers an inside view of a clandestine world that held far more prisoners than the 14 men President Bush acknowledged and had transferred out of CIA custody in September. "There are now no terrorists in the CIA program," the president said, adding that after the prisoners held were determined to have "little or no additional intelligence value, many of them have been returned to their home countries for prosecution or detention by their governments." But Jabour's experience -- also chronicled by Human Rights Watch, which yesterday issued a report on the fate of former "black site" detainees -- often does not accord with the portrait the administration has offered of the CIA system, such as the number of people it held and the threat detainees posed. Although 14 detainees were publicly moved from CIA custody to the detention facility at Guantanamo Bay, Cuba, scores more have not been publicly identified by the U.S. government, and their whereabouts remain secret. Nor has the administration acknowledged that detainees such as Jabour, considered so dangerous and valuable that their detentions were kept secret, were freed. After 28 months of incarceration, Jabour -- who was described by a counterterrorism official in the U.S. government as "a committed jihadist and a hard-core terrorist who was intent on doing harm to innocent people, including Americans" -- was released eight months ago. U.S. intelligence and counterterrorism officials confirmed his incarceration and that he was held in Pakistan and Afghanistan. They would not discuss conditions inside black sites or the treatment of any detainee. A HOUSE IN ISLAMABAD By Jabour's account, and that of U.S. intelligence officials, his entrance into the black-sites program began in May 2004. In interviews, he said he was muscled out of a car as it pulled inside the gates of a secluded villa in the Pakistani capital of Islamabad. In the week before his arrival, Jabour said, Pakistani intelligence officers had beaten, abused and burned him at a jailhouse in Lahore, where he was arrested. There two female American interrogators also questioned him and told him he would be rich if he cooperated and would vanish for life if he refused. He said he was later blindfolded and driven four hours north to the villa in a wealthy residential neighborhood. The house in Islamabad, which U.S. intelligence officials say was jointly run by the CIA and Pakistani intelligence, had been outfitted with jail cells. When Jabour arrived, he saw as many as 20 other detainees, including the 16-year-old son of an Egyptian sheik, who had been captured in Pakistan. Dozens of al-Qaeda suspects swept up in the years after Sept. 11, 2001, have been through the house, according to accounts by former prisoners and U.S. intelligence officials with knowledge of the facility. Jabour spent five weeks there, chained to a wall and prevented from sleeping more than a few hours at a time. He said he was beaten nightly by Pakistani guards after hours of questions from U.S. interrogators. Then he and others were whisked off to CIA-run sites. Some sites were in Eastern Europe; Jabour went to one in Afghanistan. Interrogators -- whom he described as Americans in their late 20s and early 30s -- told Jabour he would never see his three children again. Human Rights Watch has identified 38 people who may have been held by the CIA and remain unaccounted for. Intelligence officials told The Post that the number of detainees held in such facilities over nearly five years remains classified but is higher than 60. Their whereabouts have not been publicly disclosed. "The practice of disappearing people -- keeping them in secret detention without any legal process -- is fundamentally illegal under international law," said Joanne Mariner, director of the terrorism program at Human Rights Watch in New York. "The kind of physical mistreatment Jabour described is also illegal." Mariner interviewed Jabour separately as part of the organization's investigation. The CIA said it would not comment directly on Jabour. "The agency does not, as a rule, publicly discuss specific rendition cases from the war on terror," said Paul Gimigliano, a spokesman for the CIA. But, he said, renditions "are a key, lawful tool in the fight against terror, and have helped save lives by taking terrorists off the street. They are conducted with care, they are closely reviewed, and they have produced valuable intelligence that has allowed the United States and other nations to foil terrorist plots." John D. Rockefeller IV (D-W.Va.), chairman of the Senate intelligence committee, plans to investigate the fate of the missing detainees as part of a larger examination into the CIA's operation of secret prisons and its rendition program. AIDING AL-QAEDA FIGHTERS In interviews with The Post from his parents' home in the Gaza Strip, Jabour acknowledged helping al-Qaeda and Taliban fighters who fled Afghanistan as the U.S. military hunted for the perpetrators of the Sept. 11 attacks. Jabour was born to Palestinian parents in Jordan, raised in Saudi Arabia and educated in Pakistan. In 1998, he said, he became drawn to the plight of Muslims in Chechnya living under Russian rule. He crossed the border into Afghanistan so he could train in jihadist camps, then planned to join up with Chechen separatists. "In Afghanistan, I met other people who believed in the Islamic state, where it was safe to practice Islam the way they wanted," Jabour said in a recent conversation. "I became friends with other Arabs who felt like me, Palestinians and Jordanians, but after three months of training I was told there was no chance to go to Chechnya." Jabour returned to Pakistan in 1999. Two years later, after the U.S. military offensive in Afghanistan, those he lived and trained with came calling for help. "Some of their children were injured, some of their women were wounded. From that moment, they came to our home and we helped them," he said. Using funds from al-Qaeda financiers, Jabour said, he arranged for food, medical treatment and travel documents for several dozen people and arranged for others, including two African men who fought for al-Qaeda, to slip out of Pakistan. He did not return to Afghanistan to fight, and he said he had no interest in attacking Americans. The U.S. counterterrorism official who discussed aspects of Jabour's classified file did not call him a member of al-Qaeda. But the official said that in Pakistan, Jabour "was in direct touch with top al-Qaeda operations figures," including Hamza Rabia, who briefly served as one of Osama bin Laden's lieutenants before a missile from a CIA predator drone killed him in December 2005. In interviews, Jabour said he met with Rabia on two occasions. The official said Jabour "provided the money and means for other jihadists to move from Afghanistan to Pakistan" and provided funds that went to an al-Qaeda bioweapons lab. "He's an all-around bad guy," the official said. No charges were brought against Jabour, however, and the official would not say why he is free today. TAKEN TO AFGHANISTAN On June 16, 2004, after weeks in the villa, Jabour was drugged, blindfolded and put on a plane. Counterterrorism officials did not dispute that he was taken to a black site in Afghanistan. Jabour said the facility was run by Americans in civilian clothes and guarded by masked men who wore black uniforms and gloves. He said he does not know where the facility is located, and counterterrorism officials would not say whether Jabour was held at two known detention sites in Afghanistan -- one run by the U.S. military at Bagram air base, the other operated by the CIA outside Kabul. Jabour said he was often naked during his first three months at the Afghan site, which he spent in a concrete cell furnished with two blankets and a bucket. The lights were kept on 24 hours a day, as were two cameras and a microphone inside the cell. Sometimes loud music blasted through speakers in the cells. The rest of the time, the low buzz of white noise whizzed in the background, possibly to muffle any communication by prisoners through cell walls. Daily interrogations were conducted by a variety of Americans. Over two years, Jabour said he encountered about 45 interrogators, plus medical staff and psychologists. He was threatened with physical abuse but was never beaten. Once, he was shown a small wooden crate his interrogators called a "dog box" and was told he would be put in it if he didn't cooperate. He was told that Khalid Sheik Mohammed, the suspected architect of the Sept. 11 attacks who was among the 14 moved to Guantanamo Bay last year, became cooperative after he had been put in the box. But Jabour said he was not subjected to the crate. He was, however, chained up and left for hours in painful positions more than 20 times and deprived of sleep for long periods. Sometimes he would have one hand chained to a section of his cell wall, making it impossible to stand or sit. About six weeks into his stay, he was issued a pair of pants. Later he was given a T-shirt, then shoes, a Koran and finally a mattress. Jabour said prison conditions slowly improved: Air conditioning was installed; a library was built and stocked with books in Arabic, Urdu and English. Well-behaved detainees were rewarded with movie nights, in which such Hollywood blockbusters as "Titanic" were screened. A deputy director of the facility taught Jabour how to play chess and gave him pencils and paper. Jabour used to draw pictures of trees and grass, which he hung in his windowless cell. Jabour recalled with fondness the prison director, a man named Charlie. "He told me, 'Marwan, we need information -- if you cooperate, that is good.' I told him I wasn't hiding anything and was not a dangerous man. He told me that they didn't want to use force but would if they had to. I told him I wouldn't lie to him." Jabour began to receive better food, including pizza and Snickers and Kit-Kat bars. Transferred And Released On Dec. 18, 2004, six months after his arrival, Jabour was transferred to a larger cell. Under the sink he found a small inscription that read: "Majid Khan, 15 December, 2004, American-Pakistani." Khan, whose family lives outside Baltimore, was arrested in March 2003 in Karachi, Pakistan, and was among the group transferred to Guantanamo five months ago. The U.S. government has not divulged where Khan was held during his first 3 1/2 years of incarceration. Jabour met only one other prisoner during his time there. That was an Algerian named Yassir al-Jazeeri, a suspected high-level al-Qaeda operative who was arrested in Pakistan in March 2003. Their visits were arranged by the facility director, who told Jabour they were rewards for good behavior. During interrogations, Jabour was often shown hundreds of photographs of wanted or captured suspects. One photo appears to have been that of Muhammad Naeem Noor Khan, a British-Pakistani who was arrested in Pakistan in July 2004. Noor Khan, a suspected al-Qaeda operative, was thought to be involved in the planning of a disrupted 2004 attack on U.S. and British financial institutions. Babar Awan, a Pakistani lawyer hired by Noor Khan's family, said he has "heard nothing from the government authorities or any other authorities about where Noor Khan is." There is no public U.S. government record available that states the CIA ever held Jabour, al-Jazeeri or Noor Khan. Last April, John D. Negroponte, who was then director of national intelligence, told Time magazine that he did not know what would be the "endgame for the three dozen or so high-value detainees" in CIA custody at that time. Jabour's odyssey ended with a secret flight to Amman, Jordan, where he woke to find himself in an office staring at government wall portraits of King Abdullah and his dead father, King Hussein. "I don't know why they released me, but I told them everything I knew . . .," Jabour said. "You have to tell them the truth and that was no problem for me. They are smart people," he said of his American captors. The Jordanians called the International Committee for the Red Cross, which sent a representative to interview Jabour and to contact his family. He remained in Jordanian custody for six weeks, was interrogated and was then handed over to Israel's security services. The Israelis treated him better than his other captors, he said. They got Jabour his first lawyer, an Israeli Arab named Nizar Mahajna, who said in an interview that the Israelis had held Jabour in a prison near Haifa for two months. He was not mistreated, blindfolded or shackled, the lawyer said. Israeli authorities had considered charging Jabour with fighting for an enemy of the Jewish state. But, Mahajna said, Jabour's training in Afghanistan had occurred more than eight years earlier, he was not a member of al-Qaeda and he had never lived in the Palestinian territories. "The Israelis were given secret information on Marwan, which they got from the Americans. It wasn't shared with me but whatever it says, the central fact remained that the Pakistanis and the Americans had let him go. Why should Israel keep him?" Mahajna said. The Israeli government dropped the case and transferred Jabour to Gaza. Prison guards drove him to the Erez border crossing between Israel and the Gaza Strip. "Good luck," one of them said to Jabour as he crossed into Gaza, where his parents awaited. * The New Yorker -- February 19, 2007 WHATEVER IT TAKES The politics of the man behind "24." by Jane Mayer http://www.newyorker.com/reporting/2007/02/19/070219fa_fact_mayer The office desk of Joel Surnow -- the co-creator and executive producer of "24," the popular counterterrorism drama on Fox -- faces a wall dominated by an American flag in a glass case. A small label reveals that the flag once flew over Baghdad, after the American invasion of Iraq, in 2003. A few years ago, Surnow received it as a gift from an Army regiment stationed in Iraq; the soldiers had shared a collection of "24" DVDs, he told me, until it was destroyed by an enemy bomb. "The military loves our show," he said recently. Surnow is fifty-two, and has the gangly, coiled energy of an athlete; his hair is close-cropped, and he has a "soul patch" -- a smidgen of beard beneath his lower lip. When he was young, he worked as a carpet salesman with his father. The trick to selling anything, he learned, is to carry yourself with confidence and get the customer to like you within the first five minutes. He's got it down. "People in the Administration love the series, too," he said. "It's a patriotic show. They should love it." Surnow's production company, Real Time Entertainment, is in the San Fernando Valley, and occupies a former pencil factory: a bland, two-story industrial building on an abject strip of parking lots and fast-food restaurants. Surnow, a cigar enthusiast, has converted a room down the hall from his office into a salon with burled-wood humidors and a full bar; his friend Rush Limbaugh, the conservative talk-radio host, sometimes joins him there for a smoke. (Not long ago, Surnow threw Limbaugh a party and presented him with a custom-made "24" smoking jacket.) The ground floor of the factory has a large soundstage on which many of "24" 's interior scenes are shot, including those set at the perpetually tense Los Angeles bureau of the Counter Terrorist Unit, or C.T.U. -- a fictional federal agency that pursues America's enemies with steely resourcefulness. Each season of "24," which has been airing on Fox since 2001, depicts a single, panic-laced day in which Jack Bauer -- a heroic C.T.U. agent, played by Kiefer Sutherland -- must unravel and undermine a conspiracy that imperils the nation. Terrorists are poised to set off nuclear bombs or bioweapons, or in some other way annihilate entire cities. The twisting story line forces Bauer and his colleagues to make a series of grim choices that pit liberty against security. Frequently, the dilemma is stark: a resistant suspect can either be accorded due process -- allowing a terrorist plot to proceed -- or be tortured in pursuit of a lead. Bauer invariably chooses coercion. With unnerving efficiency, suspects are beaten, suffocated, electrocuted, drugged, assaulted with knives, or more exotically abused; almost without fail, these suspects divulge critical secrets. The show's appeal, however, lies less in its violence than in its giddily literal rendering of a classic thriller trope: the "ticking time bomb" plot. Each hour-long episode represents an hour in the life of the characters, and every minute that passes onscreen brings the United States a minute closer to doomsday. (Surnow came up with this concept, which he calls the show's "trick.") As many as half a dozen interlocking stories unfold simultaneously -- frequently on a split screen -- and a digital clock appears before and after every commercial break, marking each second with an ominous clang. The result is a riveting sensation of narrative velocity. Bob Cochran, who created the show with Surnow, admitted, "Most terrorism experts will tell you that the 'ticking time bomb' situation never occurs in real life, or very rarely. But on our show it happens every week." According to Darius Rejali, a professor of political science at Reed College and the author of the forthcoming book "Torture and Democracy," the conceit of the ticking time bomb first appeared in Jean Lartéguy's 1960 novel "Les Centurions," written during the brutal French occupation of Algeria. The book's hero, after beating a female Arab dissident into submission, uncovers an imminent plot to explode bombs all over Algeria and must race against the clock to stop it. Rejali, who has examined the available records of the conflict, told me that the story has no basis in fact. In his view, the story line of "Les Centurions" provided French liberals a more palatable rationale for torture than the racist explanations supplied by others (such as the notion that the Algerians, inherently simpleminded, understood only brute force). Lartéguy's scenario exploited an insecurity shared by many liberal societies -- that their enlightened legal systems had made them vulnerable to security threats. "24," which last year won an Emmy Award for Outstanding Drama Series, packs an improbable amount of intrigue into twenty-four hours, and its outlandishness marks it clearly as a fantasy, an heir to the baroque potboilers of Tom Clancy and Vince Flynn. Nevertheless, the show obviously plays off the anxieties that have beset the country since September 11th, and it sends a political message. The series, Surnow told me, is "ripped out of the Zeitgeist of what people's fears are -- their paranoia that we're going to be attacked," and it "makes people look at what we're dealing with" in terms of threats to national security. "There are not a lot of measures short of extreme measures that will get it done," he said, adding, "America wants the war on terror fought by Jack Bauer. He's a patriot." For all its fictional liberties, "24" depicts the fight against Islamist extremism much as the Bush Administration has defined it: as an all-consuming struggle for America's survival that demands the toughest of tactics. Not long after September 11th, Vice-President Dick Cheney alluded vaguely to the fact that America must begin working through the "dark side" in countering terrorism. On "24," the dark side is on full view. Surnow, who has jokingly called himself a "right-wing nut job," shares his show's hard-line perspective. Speaking of torture, he said, "Isn't it obvious that if there was a nuke in New York City that was about to blow -- or any other city in this country -- that, even if you were going to go to jail, it would be the right thing to do?" Since September 11th, depictions of torture have become much more common on American television. Before the attacks, fewer than four acts of torture appeared on prime-time television each year, according to Human Rights First, a nonprofit organization. Now there are more than a hundred, and, as David Danzig, a project director at Human Rights First, noted, "the torturers have changed. It used to be almost exclusively the villains who tortured. Today, torture is often perpetrated by the heroes." The Parents' Television Council, a nonpartisan watchdog group, has counted what it says are sixty-seven torture scenes during the first five seasons of "24" -- more than one every other show. Melissa Caldwell, the council's senior director of programs, said, " '24' is the worst offender on television: the most frequent, most graphic, and the leader in the trend of showing the protagonists using torture." The show's villains usually inflict the more gruesome tortures: their victims are hung on hooks, like carcasses in a butcher shop; poked with smoking-hot scalpels; or abraded with sanding machines. In many episodes, however, heroic American officials act as tormentors, even though torture is illegal under U.S. law. (The United Nations Convention Against Torture, which took on the force of federal law when it was ratified by the Senate in 1994, specifies that "no exceptional circumstances, whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.") In one episode, a fictional President commands a member of his Secret Service to torture a suspected traitor: his national-security adviser. The victim is jolted with defibrillator paddles while his feet are submerged in a tub filled with water. As the voltage is turned up, the President, who is depicted as a scrupulous leader, watches the suspect suffer on a video feed. The viewer, who knows that the adviser is guilty and harbors secrets, becomes complicit in hoping that the torture works. A few minutes before the suspect gives in, the President utters the show's credo, "Everyone breaks eventually." (Virtually the sole exception to this rule is Jack Bauer. The current season begins with Bauer being released from a Chinese prison, after two years of ceaseless torture; his back is scarred and his hands are burnt, but a Communist official who transfers Bauer to U.S. custody says that he "never broke his silence.") C.T.U. agents have used some of the same controversial interrogation methods that the U.S. has employed on some Al Qaeda suspects. In one instance, Bauer denies painkillers to a female terrorist who is suffering from a bullet wound, just as American officials have acknowledged doing in the case of Abu Zubaydah -- one of the highest-ranking Al Qaeda operatives in U.S. custody. "I need to use every advantage I've got," Bauer explains to the victim's distressed sister. The show sometimes toys with the audience's discomfort about abusive interrogations. In Season Two, Bauer threatens to murder a terrorist's wife and children, one by one, before the prisoner's eyes. The suspect watches, on closed-circuit television, what appears to be an execution-style slaying of his son. Threatened with the murder of additional family members, the father gives up vital information -- but Bauer appears to have gone too far. It turns out, though, that the killing of the child was staged. Bauer, the show implies, hasn't crossed the line after all. Yet, under U.S. and international law, a mock execution is considered psychological torture, and is illegal. On one occasion, Bauer loses his nerve about inflicting torture, but the show implicitly rebukes his qualms. In the episode, Bauer attempts to break a suspected terrorist by plunging a knife in his shoulder; the victim's screams clearly disquiet him. Bauer says to an associate, unconvincingly, that he has looked into the victim's eyes and knows that "he's not going to tell us anything." The other man takes over, fiercely gouging the suspect's knee -- at which point the suspect yells out details of a plot to explode a suitcase nuke in Los Angeles. Throughout the series, secondary characters raise moral objections to abusive interrogation tactics. Yet the show never engages in a serious dialogue on the subject. Nobody argues that torture doesn't work, or that it undermines America's foreign-policy strategy. Instead, the doubters tend to be softhearted dupes. A tremulous liberal, who defends a Middle Eastern neighbor from vigilantism, is killed when the neighbor turns out to be a terrorist. When a civil-liberties-minded lawyer makes a high-toned argument to a Presidential aide against unwarranted detentions -- "You continue to arrest innocent people, you're giving the terrorists exactly what they want," she says -- the aide sarcastically responds, "Well! You've got the makings of a splendid law-review article here. I'll pass it on to the President." In another episode, a human-rights lawyer from a fictional organization called Amnesty Global tells Bauer, who wants to rough up an uncharged terror suspect, that he will violate the Constitution. Bauer responds, "I don't wanna bypass the Constitution, but these are extraordinary circumstances." He appeals to the President, arguing that any interrogation permitted by the law won't be sufficiently harsh. "If we want to procure any information from this suspect, we're going to have to do it behind closed doors," he says. "You're talking about torturing this man?" the President says. "I'm talking about doing what's necessary to stop this warhead from being used against us," Bauer answers. When the President wavers, Bauer temporarily quits his job so that he can avoid defying the chain of command, and breaks the suspect's fingers. The suspect still won't talk, so Bauer puts a knife to his throat; this elicits the desired information. He then knocks the suspect out with a punch, telling him, "This will help you with the pain." Howard Gordon, who is the series' "show runner," or lead writer, told me that he concocts many of the torture scenes himself. "Honest to God, I'd call them improvisations in sadism," he said. Several copies of the CIA's 1963 KUBARK interrogation manual can be found at the "24" offices, but Gordon said that, "for the most part, our imaginations are the source. Sometimes these ideas are inspired by a scene's location or come from props -- what's on the set." He explained that much of the horror is conjured by the viewer. "To see a scalpel and see it move below the frame of the screen is a lot scarier than watching the whole thing. When you get a camera moving fast, and someone screaming, it really works." In recent years, he said, "we've resorted a lot to a pharmacological sort of thing." A character named Burke -- a federal employee of the C.T.U. who carries a briefcase filled with elephantine hypodermic needles -- has proved indispensable. "He'll inject chemicals that cause horrible pain that can knock down your defenses -- a sort of sodium pentothal plus," Gordon said. "When we're stuck, we say, 'Call Burke!' " He added, "The truth is, there's a certain amount of fatigue. It's getting hard not to repeat the same torture techniques over and over." Gordon, who is a "moderate Democrat," said that it worries him when "critics say that we've enabled and reflected the public's appetite for torture. Nobody wants to be the handmaid to a relaxed policy that accepts torture as a legitimate means of interrogation." He went on, "But the premise of '24' is the ticking time bomb. It takes an unusual situation and turns it into the meat and potatoes of the show." He paused. "I think people can differentiate between a television show and reality." This past November, U.S. Army Brigadier General Patrick Finnegan, the dean of the United States Military Academy at West Point, flew to Southern California to meet with the creative team behind "24." Finnegan, who was accompanied by three of the most experienced military and FBI interrogators in the country, arrived on the set as the crew was filming. At first, Finnegan -- wearing an immaculate Army uniform, his chest covered in ribbons and medals -- aroused confusion: he was taken for an actor and was asked by someone what time his "call" was. In fact, Finnegan and the others had come to voice their concern that the show's central political premise -- that the letter of American law must be sacrificed for the country's security -- was having a toxic effect. In their view, the show promoted unethical and illegal behavior and had adversely affected the training and performance of real American soldiers. "I'd like them to stop," Finnegan said of the show's producers. "They should do a show where torture backfires." The meeting, which lasted a couple of hours, had been arranged by David Danzig, the Human Rights First official. Several top producers of "24" were present, but Surnow was conspicuously absent. Surnow explained to me, "I just can't sit in a room that long. I'm too A.D.D. -- I can't sit still." He told the group that the meeting conflicted with a planned conference call with Roger Ailes, the chairman of the Fox News Channel. (Another participant in the conference call attended the meeting.) Ailes wanted to discuss a project that Surnow has been planning for months: the début, on February 18th, of "The Half Hour News Hour," a conservative satirical treatment of the week's news; Surnow sees the show as offering a counterpoint to the liberal slant of "The Daily Show with Jon Stewart." Before the meeting, Stuart Herrington, one of the three veteran interrogators, had prepared a list of seventeen effective techniques, none of which were abusive. He and the others described various tactics, such as giving suspects a postcard to send home, thereby learning the name and address of their next of kin. After Howard Gordon, the lead writer, listened to some of Herrington's suggestions, he slammed his fist on the table and joked, "You're hired!" He also excitedly asked the West Point delegation if they knew of any effective truth serums. At other moments, the discussion was more strained. Finnegan told the producers that "24," by suggesting that the U.S. government perpetrates myriad forms of torture, hurts the country's image internationally. Finnegan, who is a lawyer, has for a number of years taught a course on the laws of war to West Point seniors -- cadets who would soon be commanders in the battlefields of Iraq and Afghanistan. He always tries, he said, to get his students to sort out not just what is legal but what is right. However, it had become increasingly hard to convince some cadets that America had to respect the rule of law and human rights, even when terrorists did not. One reason for the growing resistance, he suggested, was misperceptions spread by "24," which was exceptionally popular with his students. As he told me, "The kids see it, and say, 'If torture is wrong, what about "24"?' " He continued, "The disturbing thing is that although torture may cause Jack Bauer some angst, it is always the patriotic thing to do." Gary Solis, a retired law professor who designed and taught the Law of War for Commanders curriculum at West Point, told me that he had similar arguments with his students. He said that, under both U.S. and international law, "Jack Bauer is a criminal. In real life, he would be prosecuted." Yet the motto of many of his students was identical to Jack Bauer's: "Whatever it takes." His students were particularly impressed by a scene in which Bauer barges into a room where a stubborn suspect is being held, shoots him in one leg, and threatens to shoot the other if he doesn't talk. In less than ten seconds, the suspect reveals that his associates plan to assassinate the Secretary of Defense. Solis told me, "I tried to impress on them that this technique would open the wrong doors, but it was like trying to stomp out an anthill." The "24" producers told the military and law-enforcement experts that they were careful not to glamorize torture; they noted that Bauer never enjoys inflicting pain, and that it had clearly exacted a psychological toll on the character. (As Gordon put it to me, "Jack is basically damned.") Finnegan and the others disagreed, pointing out that Bauer remains coolly rational after committing barbarous acts, including the decapitation of a state's witness with a hacksaw. Joe Navarro, one of the FBI's top experts in questioning techniques, attended the meeting; he told me, "Only a psychopath can torture and be unaffected. You don't want people like that in your organization. They are untrustworthy, and tend to have grotesque other problems." Cochran, who has a law degree, listened politely to the delegation's complaints. He told me that he supports the use of torture "in narrow circumstances" and believes that it can be justified under the Constitution. "The Doctrine of Necessity says you can occasionally break the law to prevent greater harm," he said. "I think that could supersede the Convention Against Torture." (Few legal scholars agree with this argument.) At the meeting, Cochran demanded to know what the interrogators would do if they faced the imminent threat of a nuclear blast in New York City, and had custody of a suspect who knew how to stop it. One interrogator said that he would apply physical coercion only if he received a personal directive from the President. But Navarro, who estimates that he has conducted some twelve thousand interrogations, replied that torture was not an effective response. "These are very determined people, and they won't turn just because you pull a fingernail out," he told me. And Finnegan argued that torturing fanatical Islamist terrorists is particularly pointless. "They almost welcome torture," he said. "They expect it. They want to be martyred." A ticking time bomb, he pointed out, would make a suspect only more unwilling to talk. "They know if they can simply hold out several hours, all the more glory -- the ticking time bomb will go off!" The notion that physical coercion in interrogations is unreliable, although widespread among military intelligence officers and FBI agents, has been firmly rejected by the Bush Administration. Last September, President Bush defended the CIA's use of "an alternative set of procedures." In order to "save innocent lives," he said, the agency needed to be able to use "enhanced" measures to extract "vital information" from "dangerous" detainees who were aware of "terrorist plans we could not get anywhere else." Although reports of abuses by U.S. troops in Iraq and Afghanistan and at Guantánamo Bay, Cuba, have angered much of the world, the response of Americans has been more tepid. Finnegan attributes the fact that "we are generally more comfortable and more accepting of this," in part, to the popularity of "24," which has a weekly audience of fifteen million viewers, and has reached millions more through DVD sales. The third expert at the meeting was Tony Lagouranis, a former Army interrogator in the war in Iraq. He told the show's staff that DVDs of shows such as "24" circulate widely among soldiers stationed in Iraq. Lagouranis said to me, "People watch the shows, and then walk into the interrogation booths and do the same things they've just seen." He recalled that some men he had worked with in Iraq watched a television program in which a suspect was forced to hear tortured screams from a neighboring cell; the men later tried to persuade their Iraqi translator to act the part of a torture "victim," in a similar intimidation ploy. Lagouranis intervened: such scenarios constitute psychological torture. "In Iraq, I never saw pain produce intelligence," Lagouranis told me. "I worked with someone who used waterboarding" -- an interrogation method involving the repeated near-drowning of a suspect. "I used severe hypothermia, dogs, and sleep deprivation. I saw suspects after soldiers had gone into their homes and broken their bones, or made them sit on a Humvee's hot exhaust pipes until they got third-degree burns. Nothing happened." Some people, he said, "gave confessions. But they just told us what we already knew. It never opened up a stream of new information." If anything, he said, "physical pain can strengthen the resolve to clam up." Last December, the Intelligence Science Board, an advisory panel to the U.S. intelligence community, released a report declaring that "most observers, even those within professional circles, have unfortunately been influenced by the media's colorful (and artificial) view of interrogation as almost always involving hostility." In a clear reference to "24," the report noted: Prime-time television increasingly offers up plot lines involving the incineration of metropolitan Los Angeles by an atomic weapon or its depopulation by an aerosol nerve toxin. The characters do not have the time to reflect upon, much less to utilize, what real professionals know to be the "science and art" of "educing information." They want results. Now. The public thinks the same way. They want, and rightly expect, precisely the kind of "protection" that only a skilled intelligence professional can provide. Unfortunately, they have no idea how such a person is supposed to act "in real life." Lagouranis told the "24" team what the U.S. military and the FBI teach real intelligence professionals: "rapport-building," the slow process of winning over informants, is the method that generally works best. There are also nonviolent ruses, he explained, and ways to take suspects by surprise. The "24" staff seemed interested in the narrative possibilities of such techniques; Lagouranis recalled, "They told us that they'd love to incorporate ruses and rapport- building." At the same time, he said, Cochran and the others from "24" worried that such approaches would "take too much time" on an hour-long television show. The delegation of interrogators left the meeting with the feeling that the story lines on "24" would be changed little, if at all. "It shows they have a social conscience that they'd even meet with us at all," Navarro said. "They were receptive. But they have a format that works. They have won a lot of awards. Why would they want to play with a No. 1 show?" Lagouranis said of the "24" team, "They were a bit prickly. They have this money-making machine, and we were telling them it's immoral." Afterward, Danzig and Finnegan had an on-set exchange with Kiefer Sutherland, who is reportedly paid ten million dollars a year to play Jack Bauer. Sutherland, the grandson of Tommy Douglas, a former socialist leader in Canada, has described his own political views as anti-torture, and "leaning toward the left." According to Danzig, Sutherland was "really upset, really intense" and stressed that he tries to tell people that the show "is just entertainment." But Sutherland, who claimed to be bored with playing torture scenes, admitted that he worried about the "unintended consequences of the show." Danzig proposed that Sutherland participate in a panel at West Point or appear in a training film in which he made clear that the show's torture scenes are not to be emulated. (Surnow, when asked whether he would participate in the video, responded, "No way." Gordon, however, agreed to be filmed.) Sutherland declined to answer questions for this article, but, in a recent television interview with Charlie Rose, his ambivalence about his character's methods was palpable. He condemned the abuse of U.S.-held detainees at Abu Ghraib prison, in Iraq, as "absolutely criminal," particularly for a country that tells others that "democracy and freedom" are the "way to go." He also said, "You can torture someone and they'll basically tell you exactly what you want to hear... . Torture is not a way of procuring information." But things operate differently, he said, on television: "24," he said, is "a fantastical show... . Torture is a dramatic device." The creators of "24" deny that the show presents only a conservative viewpoint. They mention its many prominent Democratic fans -- including Barbra Streisand and Bill Clinton -- and the diversity of political views among its writers and producers. Indeed, the story lines sometimes have a liberal tilt. The conspiracy plot of Season Five, for example, turns on oligarchic businessmen who go to despicable lengths to protect their oil interests; the same theme anchors liberal-paranoia thrillers such as "Syriana." This season, a White House directive that flags all federal employees of Middle Eastern descent as potential traitors has been presented as a gross overreaction, and a White House official who favors police-state tactics has come off as scheming and ignoble. Yet David Nevins, the former Fox Television network official who, in 2000, bought the pilot on the spot after hearing a pitch from Surnow and Cochran, and who maintains an executive role in "24," is candid about the show's core message. "There's definitely a political attitude of the show, which is that extreme measures are sometimes necessary for the greater good," he says. "The show doesn't have much patience for the niceties of civil liberties or due process. It's clearly coming from somewhere. Joel's politics suffuse the whole show." Surnow, for his part, revels in his minority status inside the left-leaning entertainment industry. "Conservatives are the new oppressed class," he joked in his office. "Isn't it bizarre that in Hollywood it's easier to come out as gay than as conservative?" His success with "24," he said, has protected him from the more righteous elements of the Hollywood establishment. "Right now, they have to be nice to me," he said. "But if the show tanks I'm sure they'll kill me." He spoke of his new conservative comedy show as an even bigger risk than "24." "I'll be front and center on the new show," he said, then joked, "I'm ruining my chances of ever working again in Hollywood." Although he was raised in Beverly Hills -- he graduated in 1972 from Beverly Hills High -- Surnow said that he has always felt like an outsider. His classmates were mostly wealthy, but his father was an itinerant carpet salesman who came to California from Detroit. He cold-called potential customers, most of whom lived in Compton and Watts. Surnow was much younger than his two brothers, and he grew up virtually as an only child, living in a one-bedroom apartment in an unfashionable area south of Olympic Boulevard, where he slept on a foldout cot. If his father made a sale, he'd come home and give him the thumbs-up. But Surnow said that nine out of ten nights ended in failure. "If he made three sales a month, we could stay where we lived," he recalled. His mother, who worked as a saleswoman in a clothing store, "fought depression her whole life." Surnow, who describes his parents as "wonderful people," said, "I was a latchkey kid... . I raised myself." He played tennis on his high-school team but gave it up after repeatedly losing to players who could afford private lessons. Roger Director, a television producer and longtime friend, said that he "loves" Surnow. But, he went on, "He feels looked down upon by the world, and that kind of emotional dynamic underpins a lot of things. It's kind of 'Joel against the world.' It's as if he feels, I had to fight and claw for everything I got. It's a tough world, and no one's looking out for you." As a result, Director said, "Joel's not sentimental. He has a hard-hearted thing." Surnow's parents were F.D.R. Democrats. He recalled, "It was just assumed, especially in the Jewish community" -- to which his family belonged. "But when you grow up you start to challenge your parents' assumptions. 'Am I Jewish? Am I a Democrat?' " Many of his peers at the University of California at Berkeley, where he attended college, were liberals or radicals. "They were all socialists and Marxists, but living off their family money," he recalled. "It seemed to me there was some obvious hypocrisy here. It was absurd." Although he wasn't consciously political, he said, "I felt like I wasn't like these people." In 1985, he divorced his wife, a medical student, who was Jewish, and with whom he has two daughters. (His relationships with them are strained.) Four years later, he remarried. His wife, who used to work in film development, is Catholic; they have three daughters, whom they send to Catholic schools. He likes to bring his girls to the set and rushes home for his wife's pork-chop dinners. "I got to know who I was and who I wasn't," he said. "I wasn't the perfect Jewish kid who is married, with a Jewish family." Instead, he said, "I decided I like Catholics. They're so grounded. I sort of reoriented myself." While studying at Berkeley, Surnow worked as an usher at the Pacific Film Archive, where he saw at least five hundred movies. A fan of crime dramas such as "Mean Streets" and "The Godfather," he discovered foreign films as well. "That was my awakening," he said. In 1975, Surnow enrolled at the UCLA film school. Soon after graduation, he began writing for film; he then switched to television. He was only modestly successful, and had many "lost years," when he considered giving up and taking over his father's carpet business. His breakthrough came when he began writing for "Miami Vice," in 1984. "It just clicked -- I just got it!" he recalled. "It was just like when you don't know how to speak a language and suddenly you do. I knew how to tell a story." By the end of the year, Universal, which owned the show, put Surnow in charge of his own series, "The Equalizer," about a CIA agent turned vigilante. The series was a success, but, Surnow told me, "I was way too arrogant. I sort of pissed off the network." Battles for creative control have followed Surnow to "24," where, Nevins said admiringly, he continues to push for "unconventional and dangerous choices." Surnow's tough stretches in Hollywood, he said, taught him that there were "two kinds of people" in entertainment: "those who want to be geniuses, and those who want to work." At first, he said, "I wanted to be a genius. But at a certain point I realized I just desperately wanted to work." Brian Grazer, an executive producer of "24," who has primarily produced films, said that "TV guys either get broken by the system, or they get so tough that they have no warmth at all." Surnow, he said, is "a devoted family man" and "a really close friend." But when Grazer first met Surnow, he recalled, "I nearly walked out. He was really glib and insulting. I was shocked. He's a tough guy. He's a meat-eating alpha male. He's a monster!" He observed, "Maybe Jack Bauer has some parts of him." During three decades as a journeyman screenwriter, Surnow grew increasingly conservative. He "hated welfare," which he saw as government handouts. Liberal courts also angered him. He loved Ronald Reagan's "strength" and disdained Jimmy Carter's "belief that people would be nice to us just because we were humane. That never works." He said of Reagan, "I can hardly think of him without breaking into tears. I just felt Ronald Reagan was the father that this country needed... . He made me feel good that I was in his family." Surnow said that he found the Clinton years obnoxious. "Hollywood under Clinton -- it was like he was their guy," he said. "He was the yuppie, baby-boomer narcissist that all of Hollywood related to." During those years, Surnow recalled, he had countless arguments with liberal colleagues, some of whom stopped speaking to him. "My feeling is that the liberals' ideas are wrong," he said. "But they think I'm evil." Last year, he contributed two thousand dollars to the losing campaign of Pennsylvania's hard-line Republican senator Rick Santorum, because he "liked his position on immigration." His favorite bumper sticker, he said, is "Except for Ending Slavery, Fascism, Nazism & Communism, War Has Never Solved Anything." Although he is a supporter of President Bush -- he told me that "America is in its glory days" -- Surnow is critical of the way the war in Iraq has been conducted. An "isolationist" with "no faith in nation-building," he thinks that "we could have been out of this thing three years ago." After deposing Saddam Hussein, he argued, America should have "just handed it to the Baathists and ... put in some other monster who's going to keep these people in line but who's not going to be aggressive to us." In his view, America "is sort of the parent of the world, so we have to be stern but fair to people who are rebellious to us. We don't spoil them. That's not to say you abuse them, either. But you have to know who the adult in the room is." Surnow's rightward turn was encouraged by one of his best friends, Cyrus Nowrasteh, a hard-core conservative who, in 2006, wrote and produced "The Path to 9/11," a controversial ABC miniseries that presented President Clinton as having largely ignored the threat posed by Al Qaeda. (The show was denounced as defamatory by Democrats and by members of the 9/11 Commission; their complaints led ABC to call the program a "dramatization," not a "documentary.") Surnow and Nowrasteh met in 1985, when they worked together on "The Equalizer." Nowrasteh, the son of a deposed adviser to the Shah of Iran, grew up in Madison, Wisconsin, where, like Surnow, he was alienated by the radicalism around him. He told me that he and Surnow, in addition to sharing an admiration for Reagan, found "L.A. a stultifying, stifling place because everyone thinks alike." Nowrasteh said that he and Surnow regard "24" as a kind of wish fulfillment for America. "Every American wishes we had someone out there quietly taking care of business," he said. "It's a deep, dark ugly world out there. Maybe this is what Ollie North was trying to do. It would be nice to have a secret government that can get the answers and take care of business -- even kill people. Jack Bauer fulfills that fantasy." In recent years, Surnow and Nowrasteh have participated in the Liberty Film Festival, a group dedicated to promoting conservatism through mass entertainment. Surnow told me that he would like to counter the prevailing image of Senator Joseph McCarthy as a demagogue and a liar. Surnow and his friend Ann Coulter -- the conservative pundit, and author of the pro-McCarthy book "Treason" -- talked about creating a conservative response to George Clooney's recent film "Good Night, and Good Luck." Surnow said, "I thought it would really provoke people to do a movie that depicted Joe McCarthy as an American hero or, maybe, someone with a good cause who maybe went too far." He likened the Communist sympathizers of the nineteen-fifties to terrorists: "The State Department in the fifties was infiltrated by people who were like Al Qaeda." But, he said, he shelved the project. "The blacklist is Hollywood's orthodoxy," he said. "It's not a movie I could get done now." A year and a half ago, Surnow and Manny Coto, a "24" writer with similar political views, talked about starting a conservative television network. "There's a gay network, a black network -- there should be a conservative network," Surnow told me. But as he and Coto explored the idea they realized that "we weren't distribution guys -- we were content guys." Instead, the men developed "The Half Hour News Hour," the conservative satire show. " 'The Daily Show' tips left," Surnow said. "So we thought, Let's do one that tips right." Jon Stewart's program appears on Comedy Central, an entertainment channel. But, after Surnow got Rush Limbaugh to introduce him to Roger Ailes, Fox News agreed to air two episodes. The program, which will follow the fake-news format popularized by "Saturday Night Live," will be written by conservative humorists, including Sandy Frank and Ned Rice. Surnow said of the show, "There are so many targets, from global warming to banning tag on the playground. There's a lot of low-hanging fruit." Last March, Supreme Court Justice Clarence Thomas and his wife, Virginia, joined Surnow and Howard Gordon for a private dinner at Rush Limbaugh's Florida home. The gathering inspired Virginia Thomas -- who works at the Heritage Foundation, a conservative think tank -- to organize a panel discussion on "24." The symposium, sponsored by the foundation and held in June, was entitled " '24' and America's Image in Fighting Terrorism: Fact, Fiction, or Does It Matter?" Homeland Security Secretary Michael Chertoff, who participated in the discussion, praised the show's depiction of the war on terrorism as "trying to make the best choice with a series of bad options." He went on, "Frankly, it reflects real life." Chertoff, who is a devoted viewer of "24," subsequently began an e-mail correspondence with Gordon, and the two have since socialized in Los Angeles. "It's been very heady," Gordon said of Washington's enthusiasm for the show. Roger Director, Surnow's friend, joked that the conservative writers at "24" have become "like a Hollywood television annex to the White House. It's like an auxiliary wing." The same day as the Heritage Foundation event, a private luncheon was held in the Wardrobe Room of the White House for Surnow and several others from the show. (The event was not publicized.) Among the attendees were Karl Rove, the deputy chief of staff; Tony Snow, the White House spokesman; Mary Cheney, the Vice-President's daughter; and Lynn Cheney, the Vice-President's wife, who, Surnow said, is "an extreme '24' fan." After the meal, Surnow recalled, he and his colleagues spent more than an hour visiting with Rove in his office. "People have this image of him as this snake-oil-dirty, secretive guy, but in his soul he's a history professor," Surnow said. He was less impressed with the Situation Room, which, unlike the sleek high-tech version at C.T.U., "looked like some old tearoom in a Victorian house." The Heritage Foundation panel was moderated by Limbaugh. At one point, he praised the show's creators, dropped his voice to a stage whisper, and added, to the audience's applause, "And most of them are conservative." When I spoke with Limbaugh, though, he reinforced the show's public posture of neutrality. "People think that they've got a bunch of right-wing writers and producers at '24,' and they're subtly sending out a message," he said. "I don't think that's happening. They're businessmen, and they don't have an agenda." Asked about the show's treatment of torture, he responded, "Torture? It's just a television show! Get a grip." In fact, many prominent conservatives speak of "24" as if it were real. John Yoo, the former Justice Department lawyer who helped frame the Bush Administration's "torture memo" -- which, in 2002, authorized the abusive treatment of detainees -- invokes the show in his book "War by Other Means." He asks, "What if, as the popular Fox television program '24' recently portrayed, a high-level terrorist leader is caught who knows the location of a nuclear weapon?" Laura Ingraham, the talk-radio host, has cited the show's popularity as proof that Americans favor brutality. "They love Jack Bauer," she noted on Fox News. "In my mind, that's as close to a national referendum that it's O.K. to use tough tactics against high-level Al Qaeda operatives as we're going to get." Surnow once appeared as a guest on Ingraham's show; she told him that, while she was undergoing chemotherapy for breast cancer, "it was soothing to see Jack Bauer torture these terrorists, and I felt better." Surnow joked, "We love to torture terrorists -- it's good for you!" As a foe of political correctness, Surnow seems to be unburdened by the controversy his show has stirred. "24," he acknowledged, has been criticized as racially insensitive, because it frequently depicts Arab-Americans as terrorists. He said in response, "Our only politics are that terrorists are bad. In some circles, that's political." As he led me through the Situation Room set on the Real Time soundstage, I asked him if "24" has plans to use the waterboarding interrogation method, which has been defended by Vice-President Cheney but is considered torture by the U.S. military. Surnow laughed and said, "Yes! But only with bottled water -- it's Hollywood!" In a more sober tone, he said, "We've had all of these torture experts come by recently, and they say, 'You don't realize how many people are affected by this. Be careful.' They say torture doesn't work. But I don't believe that. I don't think it's honest to say that if someone you love was being held, and you had five minutes to save them, you wouldn't do it. Tell me, what would you do? If someone had one of my children, or my wife, I would hope I'd do it. There is nothing -- nothing -- I wouldn't do." He went on, "Young interrogators don't need our show. What the human mind can imagine is so much greater than what we show on TV. No one needs us to tell them what to do. It's not like somebody goes, 'Oh, look what they're doing, I'll do that.' Is it?" ? * Newark Star-Ledger -- February 18, 2007 SMALL SETON GROUP BECOMES IMPORTANT IN GUANTANAMO DEBATE By Wayne Woolley http://www.nj.com/printer/printer.ssf?/base/news-6/117177739697300.xml&coll=1 It could be a law school class anywhere. Students simultaneously gulp coffee from oversized cups, rifle through tall stacks of paper and keep up a ping-pong series of questions and responses with the professor in the tweed jacket. But the discussion at these weekly gatherings at Seton Hall Law School in Newark never veers into the realm of contracts, torts or criminal procedure. For these eight students and their professor, Mark Denbeaux, the topic remains the same: Guantanamo Bay, Cuba, and the nearly 500 men held there for nearly half a decade, classified as "enemy combatants" in America's war on terror. During the past year, the group has churned out five widely followed reports that have helped frame much of the debate about Guantanamo Bay. The reports rely exclusively on information the government provided about the detainees but challenge many of the rationales the government has offered for continuing to hold the vast majority of them. The critical yet dispassionate tone of the Seton Hall reports has led to human rights groups, the media and government policy circles citing their findings with greater frequency. "Before, everybody looking at Guantanamo would do the quick-and-dirty, find an anecdote about something egregious and then move on," Denbeaux said. "We felt what was really needed was an analysis of everything that's out there. What it means." The Seton Hall reports began last February with an analysis of the records of 517 detainees and led to the first disclosure that fewer than half of the men held at Guantanamo Bay were accused of a hostile act against America, and nine out of 10 were apprehended not by the U.S. military but by armed groups in Afghanistan and Pakistan that often collected large bounties for their roundups. Later Seton Hall efforts found far more detainees had tried to kill themselves in confinement than had been accused of disciplinary infractions. The most recent report, issued in November, raised questions about whether a U.S. Supreme Court order that detainees be allowed to challenge their detentions was being followed in the manner the court had prescribed. At a U.S. Senate Judiciary hearing in September, John Hutson, a retired rear admiral who was the Navy's top lawyer in the late 1990s, cited the Seton Hall findings in arguing for greater congressional and court oversight of Guantanamo Bay. In a recent interview, Hutson said he found Seton Hall's work convincing because "it was complete, reliable and a reasonably impartial analysis of a lot of factual information." "Seton Hall did a real service to an intelligent and informed discussion. ... They advanced the ball a lot," said Hutson, who now is the dean of the Franklin Pierce Law Center in New Hampshire. "They recognized there was a factual gap and a paucity of facts informing the discussion. Then they went out and got those facts." Although Denbeaux and his son, Joshua Denbeaux, a private-practice attorney who represents two Guantanamo detainees, get top billing in the Seton Hall reports, both say the lion's share of work was done by the law students, whose names appear in smaller type. "This wouldn't have been possible without the students," Joshua Denbeaux said. For each study, the students reviewed thousands of pages of unclassified documents and constructed a computer database to analyze statements the government made about the detainees. David Gratz, the student who designed a database sophisticated enough to perform thousands of queries on each detainee detail, spent several years before law school designing systems to manage cellular phone traffic for AT&T Wireless. For each study, the students worked as quickly as possible. Their report delving into the backgrounds of three detainees who committed suicide on June 10 was compiled in less than six weeks. "It's a killing speed," Joshua Denbeaux said. All of the students on the project are volunteers, each working on it as many as 20 hours a week in addition to their full-time course loads. "It's been a labor of love," said Shana Edwards, a 26-year-old Richmond, Va., native. "You start to realize that this is all about fighting for the Constitution." Most of the students say they began work on the project mindful that former Defense Secretary Donald Rumsfeld in 2002 described the detainees as "the worst of the worst." Danny Mann, an aspiring entertainment lawyer from San Antonio, said he began to have doubts when he started looking into the backgrounds of the detainees he had been assigned. None was a suspected al Qaeda or Taliban member. In fact, no one was accused of anything more serious than trying to run from Northern Alliance fighters in Afghanistan. "I thought 'What a bunch of powder puffs,'" he said. "I couldn't wait to check back with everybody else to see who got all the real bad guys, and they just weren't there. ... It just struck me as such a sharp contrast to what we had been told." In the five years since the prison opened, the government's statements about the threats posed by most of the men have softened and more than 250 have been released. In June, President Bush acknowledged that many of America's greatest allies are becoming impatient because the men held at Guantanamo have yet to face formal charges. But Denbeaux, the professor, stresses that the climate was different when he and the students first began their work. "These kids are brave kids," Denbeaux said. "The politics of Guantanamo was a whole lot different when they started out. Then it was 'Why are you helping these terrorists?' Now, it's 'How come these guys have been held so long without charge?' The work these kids did is a big reason for that change." There are some, however, who have not changed their minds. Charles D. Stimson, the deputy assistant secretary for detainee affairs at the Pentagon, was forced to apologize for suggesting companies sever ties to law firms that represent detainees. The Seton Hall students say they have no fears that their work on the Guantanamo project might hurt future job prospects and a few said it made them consider practicing public-interest law when they graduate. "The firms I've interviewed with have been really interested in the work I did with Guantanamo," said Helen Skinner, a Pittsburgh native who has interviewed with several top law firms. Mark and Joshua Denbeaux draw their motivation for the Guantanamo project from two men, Rafiq Alhami and Mohammed Rahman, detainees 892 and 894. Alhami is a Tunisian who was transferred from an Iranian jail into American custody, and Rahman was pulled from a bus in Pakistan. Neither man faces formal charges, and neither has been allowed a hearing to challenge the detainment. The Denbeauxs don't believe either man is a terrorist. But even if they were, they argue that they should at least be permitted a hearing to challenge their detention. "Five years without a hearing? It makes my stomach turn," Mark Denbeaux said. "In the United States, even if you're guilty of manslaughter, you'll serve less than five years. If you cause a fatal fire in a school dormitory, 16 months. These guys, no charges and no hearing." Denbeaux and the students say they're far from done. Their next project focuses on thousands of pages of Justice Department and Defense Department documents outlining prisoner abuses reported by FBI agents who have served at Guantanamo. On a recent day, back to work in a small conference room in Newark, Denbeaux sat in front of the students, firing questions about what they were finding and what it meant. "Has anybody come across the report where the female interrogator wrenched the detainee's thumbs back and then started feeling him up?" Denbeaux asked. Almost in unison, the students started rifling through their papers, searching for answers. [ Wayne Woolley may be reached at wwoolley@starledger.com or (973) 392-1559. ] * The Spectator -- February 17, 2007 MEETING PROFESSOR TORTURE by Alasdair Palmer http://www.spectator.co.uk/the-magazine/features/ 27959/meeting-professor-torture.thtml Guantanamo Bay has just marked its fifth anniversary. John Yoo was instrumental in setting up the prison camp which the normally solidly pro-American Daily Mail has called "the sort of show that once only dictators like Joseph Stalin and Chairman Mao knew how to put on". Yet Yoo's infamy in America derives less from clearing the legal way for Guantanamo than from being the author of the "Torture Memo", a legal opinion filed on 2 August 2002 by the Office of Legal Counsel (OLC), a section of the Department of Justice. It examined what methods of inflicting pain and suffering constitute torture, and whether the President can order torture if he thinks it necessary. Yoo's memo was leaked to the press in the summer of 2004, in the aftermath of the publication of the pictures of American soldiers torturing Iraqi detainees inside Abu Ghraib prison. Overnight he became a celebrity -- but for all the wrong reasons. He was held personally responsible for Abu Ghraib's horrors: the disgusting behaviour by US service personnel was seen as the bottom of the slippery slope down which Yoo had started America"s military sliding when he wrote the Torture Memo. "That was totally absurd," he tells me when we meet for lunch in a restaurant opposite his office at the Boalt School of Law, Berkeley, California. "Two bipartisan Congressional reports and several military investigations showed that the Pentagon hadn't even read the memo. Disgraceful behaviour of the kind which took place at Abu Ghraib had nothing to do with interrogation policy. Similar things have happened in practically every war. What was different was that this time they had cameras on their mobiles to photograph it.... But the idea that what went on in Abu Ghraib would never have happened without that memo is just silly." That, however, hasn't stopped most people from believing it. Various distinguished lawyers and professors have called Yoo's advice in the Torture Memo "disgusting", "unethical" and "a disgrace to our profession" -- and that's without explicitly connecting it to Abu Ghraib. Others want Prof. Yoo indicted as a war criminal. Even the Bush administration has disowned him: the OLC issued a subsequent opinion which, it stated, overturned his original advice. Professor Yoo had opined that the President had the power to order torture. The new memo emphatically insists that he does not. Given his reputation, I was a little nervous about meeting John Yoo. I half- expected to encounter the kind of man who bites the head off a chicken each morning, and who has electrodes at the ready in his office. In reality, the man is nothing like the bloodthirsty sadist he is depicted as being. Prof. Yoo is gentle and reticent, and listens without interrupting. He's polite, courteous and not yet 40. He gives the impression of being a conscientious academic eager to find out what the law is and to ensure that it is never flouted. Flouting the law is, however, precisely what he stands accused of doing by writing the Torture Memo. "I reject that criticism totally," he says. "Everything I did was carefully crafted to make sure that it was consistent with the existing legislation. My obligation was to make sure that what the President did was lawful, and I took the obligation very seriously." Still, it is difficult to read that memo without being shocked by its conclusions. It states, for instance, that "acts must be of an extreme nature to rise to the level of torture [within the meaning of the Convention Against Torture as ratified by Congress].... The infliction of pain or suffering ...is insufficient to amount to torture.... Pain or suffering must be "severe".... To amount to torture, an act must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure or even death." The memo gives examples of some of the activities which count as torture: forcing someone to play Russian roulette, beating him until he goes into cardiac arrest, applying electric shocks to the genitalia, rape or sexual assault. The memo also gives examples of forms of treatment which Yoo thinks do not constitute torture -- among them are kicking someone, forcing him to stand against a wall, subjecting him to noise, depriving him of sleep. And he provides the legal precedents to back up his case: not just US statutes but also judgments from the European Court. It is all very specific, and very unpleasant. Even if he's right about what American law permits, wouldn't it just have been better left unsaid? "That was simply not an option," Yoo asserts. "The CIA wanted -- needed -- a definitive answer to the question: how far can we go? They had specifically requested a legal opinion. They had captured senior al-Qaeda operatives who were not responding to being asked questions politely. CIA officers needed to know what, legally, they were entitled to do to them to get them to talk. They knew these guys had information on what al-Qaeda was planning. If the CIA could get that information, they could save lives. But they also wanted to be sure they would not end up going to prison for doing so." That's why they asked the OLC for answers -- and in 2002 the OLC turned out to be represented by John Yoo. Yoo's answer to "How far can we go?", however, turned out to be indistinguishable from "as far as the President wants to". The most controversial part of Yoo's advice was that, as Commander-in-Chief in war, the Constitution allows the President to be the judge of what is and what is not "necessary" to prosecute war successfully. That's the claim the OLC later explicitly disavowed. Yoo's theory of the President's practically untrammelled powers in war is, to put it mildly, not the orthodox position on what the Constitution permits. "Well, it may not be orthodox," Yoo replies with a smile, "but it is in fact the way presidents have behaved during wartime, and it is supported by legal precedent: generally, the courts have not tried to interfere with the President's power to conduct war.... I think the OLC's reversal was pure politics. The administration just lost the courage of its convictions." Bitterness at the OLC's very public dismissal of his original opinion is tempered by Yoo's conviction that, in fact, it does not change anything in practice; he is convinced that the new opinion does not alter his original advice on what methods of interrogation are permitted. "If you look carefully," he contends, "the same sorts of thing are legal in that opinion as in mine." You mean, I ask, that they are said to be legal because it is decided they don't inflict the level of pain required to count as torture? "Correct," Yoo answers. "There"s a footnote in the new OLC memo which states that explicitly. I know that the new advice hasn't made any difference to what the CIA does. Nor, incidentally, has the McCain Act." (This is the legislation, sponsored by Senator John McCain, which explicitly prohibits American officials of any kind from using torture.) That Act changes the definition of torture from the infliction of "severe" pain to the infliction of "serious" pain. It doesn't, however, define what "serious" pain is. "Does water-boarding [inducing the perception of drowning in someone to make him talk] inflict serious pain?" asks Yoo. "I doubt that the CIA thinks that it does ...or that it is going to stop using the technique, if the stakes are high enough." So despite the new law, the old tactics will be available? "I think so. And more important, so do they...." It would be wrong to say Yoo is pleased about that situation. But keeping the option of "inflicting pain" available is, he insists, better than the alternative, which is banning it absolutely. He remains convinced that there are situations when torture is justified. "No question about it," he says. "Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don't see how it can be reasonable to have an absolute prohibition on torture when you don't have an absolute prohibition on killing. Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured?" Yoo believes that however much we want to, we can't duck that dilemma: as al- Qaeda acquires nuclear, chemical, biological weapons, confronting it is inevitable. "What changed on September 11?" he asks. "We went from peace to war, that's what changed. We can't fight the war as if it were a law-enforcement issue of the kind the courts were designed to deal with. We want to prevent another mass attack -- not punish the perpetrators after thousands of people have died." To Yoo, the reality of the war against al-Qaeda and its affiliates is what justifies the extraordinary steps the administration has taken: Guantanamo, indefinite detention without trial, even targeted assassination (he wrote memos justifying that too) and torture. To his opponents, however, his insistence that America is at war is just a fig-leaf to justify an unprecedented assault on human rights and civil liberties. There hasn't been an attack on US soil since 9/11 -- something he attributes to the success of the policies he helped to craft in preventing one. His critics, of course, maintain that it's nothing to do with those policies: rather, it's proof that there is no war. "Well, al-Qaeda certainly think they're at war with us!" he observes. "I wonder what those who deny we're at war will say when there is another horrendous terrorist attack on the US?" If and when that happens, there will almost certainly be a different president in the White House and a different team giving him advice. But you can be sure of one thing: whoever is in charge will, in the aftermath of a new 9/11, take a very close look at the legal opinions that have made John Yoo a pariah. [ Alasdair Palmer is public policy editor of the Sunday Telegraph. ] * Washington Post -- January 16, 2007 SOME AT GUANTANAMO MARK 5 YEARS IN LIMBO Big Questions About Low-Profile Inmates By Carol D. Leonnig and Julie Tate http://www.washingtonpost.com/wp-dyn/content/ article/2007/01/15/AR2007011501227.html Shackled at the wrists and blinded by special goggles, the first captives from the U.S. war in Afghanistan were ushered to makeshift prison cells thousands of miles from the battle, at the U.S. naval station at Guantanamo Bay, Cuba, five years ago last week. Gholam Ruhani was among them, the prison's third official inmate, flown in by cargo plane with the first group of 20 men. The 23-year-old Afghan shopkeeper, who spoke a little English, was seized near his hometown of Ghazni when he agreed to translate for a Taliban government official seeking a meeting with a U.S. soldier. Ruhani is still at Guantanamo, marking the fifth anniversary of the prison and his own captivity. He remains as stunned about his fate, according to transcripts of his conversations with military officers, as he was when U.S. military police led him inside the razor wire on Jan. 11, 2002, and accused him of being America's enemy. "I never had a war against the United States, and I am surprised I'm here," Ruhani told his captors during his first chance to hear the military's reasons for holding him, three years after he arrived at Guantanamo. "I tried to cooperate with Americans. I am no enemy of yours." Now prison and prisoner are forever linked, joined by hasty decisions made in war and trapped by that fateful beginning. Guantanamo, which is struggling to rid itself of roughly 200 of its 393 remaining detainees, served its original purpose of taking dozens of terrorism suspects and enemy fighters from the chaotic Afghan battlefield and elsewhere, administration officials and the prison's supporters say. But after five years and more than $600 million, it has failed to quickly and fairly handle the cases of hundreds of people such as Ruhani, against whom the government has no clear evidence of a role in attacks against the United States, according to current and former government officials and attorneys for detainees. In the administration's effort to obtain raw intelligence, officials said, it was easier to ship hundreds of men with unclear allegiances to a naval base in Cuba in early 2002 and ask the hard questions later. But with a government focused on interrogations, a bureaucracy lacking tolerance for risk and a detention policy under legal attack, the United States has found it difficult to free many of the detainees, regardless of the information it has on the threat they pose. "We of course had to make snap judgments in the battlefield," said one administration official involved in reviewing Guantanamo cases, who spoke anonymously to avoid angering superiors. "Where we had problems was that once we had individuals in custody, no one along the layers of review wanted to take a risk. So they would take a shred of evidence that a detainee was associated with another bad person and say that's a reason to keep them." That policy, and persistent reports of detainee abuse inside Guantanamo's walls, have provided rallying points for Islamic radicals, undermined international support for U.S. efforts to track down terrorists and ignited a legal effort that has repeatedly embarrassed the administration. "Guantanamo took on a life of its own," said Pierre-Richard Prosper, a former U.S. ambassador at large for war crime issues. "What started as a solution to an immediate problem became both a more permanent place and a cause celebre internationally." The White House and the Defense Department say the detention and interrogation facility they call Joint Task Force Guantanamo has been a success in protecting Americans and helping U.S. officials learn more about terrorist networks. Dangerous men are inside the prison, among them Khalid Sheik Mohammed, alleged mastermind of the Sept. 11, 2001, attacks, and Ramzi Binalshibh, who is accused of aiding him. They were among 14 detainees transferred there last year as the administration sought, and later won, a law that restricts detainees from challenging their imprisonment in U.S. courts. So far, 10 detainees have been designated to stand trial before special military commissions, and the Defense Department expects that 80 more will face a similar fate. "In Guantanamo, we have held the engine of al-Qaeda -- the recruiters, smugglers, trainers, facilitators, financiers, bombmakers and potential suicide bombers -- detained and out of the fight," said Lt. Cmdr. Chito Peppler, a Defense Department spokesman. "We have no desire to be the world's jailer and do not hold detainees for any longer than necessary. We have in place a rigorous process to ensure those held at Guantanamo Bay belong at Guantanamo." The prison has changed dramatically since its inception, after a battlefield crisis in north-central Afghanistan over Thanksgiving weekend in 2001. For four days, U.S. and British forces fought a prisoner uprising in a fortress used by the CIA as an interrogation site in Mazar-e Sharif. By Nov. 28, hundreds of prisoners were dead and the U.S. military had taken custody of an estimated 200 survivors and suspects. Army Gen. Tommy R. Franks, in charge of the assault on Afghanistan's al-Qaeda and Taliban strongholds, urged the military to find a site outside the country to hold and evaluate this expanding group of suspects. The job had also overwhelmed his detention facility, a converted machine shop at Bagram air base. Back in Washington that December, someone floated an idea: What about taking the prisoners to the U.S. naval base at Guantanamo Bay? Then-Defense Secretary Donald H. Rumsfeld liked it. By the next month, military cargo planes were bringing Muslim men seized in Afghanistan and Pakistan to Cuba, 20 and 30 at a time. President Bush, relying on advisers' untested legal theories, declared a week after the prison opened that the captives were not entitled to Geneva Conventions protections or prisoner-of-war status and could be held in Cuba, without charges, indefinitely. Between its opening and Feb. 14, 2002, the number of prisoners at Guantanamo swelled to 300. In late January of that year, Vice President Cheney said the detainees were "the worst of a very bad lot" and added: "They are very dangerous. They are devoted to killing millions of Americans." But of the 773 detainees who have spent time in Guantanamo, the government has released roughly half, most because they had no information and no role in any fighting. The majority were sent home after the evidence against each was formally reviewed at military hearings required in 2004 by the Supreme Court, which rejected the Bush administration's claim that it could detain foreign nationals indefinitely without such sessions. Of the 393 prisoners who remain today, the military has determined that 85 pose so little threat, they should be transferred to their home countries. Officials, speaking on the condition of anonymity because some evidence about the prisoners is classified, estimate that about 200 pose a danger to Americans. It is unknown what classified evidence exists to hold Ruhani, who said he was newly married and trying to help his elderly father run an electrical supply store when he was arrested on Dec. 9, 2001. The military tribunal that reviewed his case in 2004 publicly concluded that he was a danger because he was captured with a senior Taliban intelligence officer, was carrying rounds for his pistol and had worked as a part-time aide in a Taliban security office. Ruhani told the three-officer tribunal that he had been waiting for three years to set the record straight, transcripts show. He contended that the Taliban required all young men to fight in its army but said he was able to avoid going to the front lines by agreeing to do menial cleaning and clerical jobs at a nearby police office. "I was afraid I would be killed," he told them. He had learned a little English to make some sense of the electronics manuals in his family's shop. And, he said, he was happy to help translate when asked by a fellow villager -- Abdul Haq Wasiq, a Taliban official who later became a prisoner with him at Guantanamo -- because he considered the Americans friendly. He said almost everyone in Afghanistan carries a weapon for protection but he handed his over to the Americans as he entered the meeting. "I believed I was on the Americans' side. I expected to leave that meeting and return to my life, my shop and my family. Instead, I was arrested," he said, adding: "All I want to say is that I am not guilty. I am asking for your help." The military decided to continue holding Ruhani. At a review hearing the next year, he seemed bewildered that the Americans had not yet determined that his detention was a mistake. "If there is a misunderstanding, please don't hold that against me," Ruhani said. "When will they let me know that I'll be released?" One major obstacle for Ruhani and dozens of others still at the prison is nationality. The U.S. government has determined that Afghanistan, and a few other countries, cannot keep track of released detainees who the United States believes are low-risk but need monitoring. Afghans make up the largest group of current detainees. Yemenis and Saudis, whose countries either cannot handle released detainees or do not want them, also remain in large numbers. The detainees in that first group of 20 are emblematic of Guantanamo's prisoners. Half have been released. Of the remaining 10, one is David Hicks -- prisoner No. 2 -- an Australian who fought in the Kosovo Liberation Army, then converted to Islam and was captured in Afghanistan. Two are admitted Taliban commanders. Three others are more like Ruhani, with public files that appear to make them unlikely enemies of the United States. One is Shakhrukh Hamiduva, an 18-year-old Uzbek refugee who fled his country after the government there killed one of his uncles and jailed other relatives. He tried to cross the border from Afghanistan when U.S. bombs started falling but was captured by a tribal leader and sold to U.S. forces for a bounty. He said soldiers told him he would be released, but instead he ended up in Cuba. "We went after small fries at every turn," said Neal Katyal, a Georgetown University law professor who helped argue the Supreme Court case last June that struck down the government's original plan for military trials. "Gitmo blew our credibility. And it's going to take a long time to get it back." * New York Times / IHT -- January 4, 2007 WIRETAPS ARE BASIS OF CASE LINKED TO 'DIRTY BOMB' By Deborah Sontag http://www.iht.com/articles/2007/01/04/news/terror.php In 1997, as the government listened in on their phone call, Adham Hassoun, a computer programmer in Broward County, Florida, proposed a road trip to Jose Padilla, a low-wage worker there. The excursion to Tampa, Florida, would be his treat, Hassoun said, and a chance to meet "some nice, uh, brothers." Padilla, a New York-born Puerto Rican who had converted to Islam a few years earlier, knew Hassoun, an outspoken Palestinian, from his mosque. Still, according to a transcript of the conversation obtained by The New York Times, Padilla equivocated while Hassoun exhorted. "We take the whole family and have a blast," Hassoun said. "We go to, uh, our Busch Gardens, you know. You won't regret it. Money-back guarantee," he said, referring to a U.S. amusement park. Padilla, laughing, suggested that they not discuss the matter over the phone. "Why?" Hassoun said. "We're going to Busch Gardens. What's the big deal?" That conversation took place five years before Padilla, a U.S. citizen accused of plotting a "dirty bomb" attack against his homeland, was declared an enemy combatant. Given that Padilla and Hassoun are criminal defendants in a terrorism conspiracy case in Miami, it sounds suspicious, as if Hassoun were proposing something more sinister than a weekend of leisure. He well may have been -- but maybe, too, he was sincere or joking about a Muslim retreat. Deciphering such chatter to construct a convincing narrative of conspiracy is a challenge. Yet, prosecutors say, the government will rely largely on wiretapped conversations when it puts Padilla, Hassoun and a third defendant, Kifah Jayyousi, on trial as a "North American support cell" that sent money, goods and recruits abroad to assist "global jihad." Tens of thousands of conversations were recorded. About 230 phone calls form the core of the government's case, including 21 that make reference to Padilla, prosecutors said. But Padilla's voice is heard on only seven calls. And on those seven, which The Times obtained from a participant in the case, Padilla does not discuss violent plots. But this is not the version of Padilla -- Qaeda associate and would-be bomber -- that John Ashcroft, then the attorney general, unveiled in 2002 when he interrupted a trip to Moscow to trumpet Padilla's capture. In the four and a half years since then, as the U.S. government tested the limits of its power to deal with terrorism outside the traditional law enforcement system, Padilla is the only terrorism suspect to have gone from enemy combatant to criminal defendant. His criminal trial, scheduled to begin late this month, will feature none of the initial claims about violent plotting with Al Qaeda that the government cited as justification for detaining Padilla without formal charges for three and a half years. Those claims came from the government's overseas interrogations of terrorism suspects, including Abu Zubaydah, which, according to the government, Padilla corroborated, in part, during his own questioning in a military brig in South Carolina. But, constrained by strict federal rules of evidence that would prohibit or limit the use of information obtained during such interrogations, the government will make a far more circumscribed case against Padilla in court, effectively demoting him from Al Qaeda's dirty bomber to foot soldier in a somewhat nebulous conspiracy. The initial dirty-bomb accusation did not disappear, however. It quietly resurfaced in Guantanamo. The government filed the dirty bomb charges against a supposed accomplice of Padilla -- an Ethiopian-born detainee -- at about the same time that it indicted Padilla on relatively lesser offenses in criminal court. The change in the status of Padilla from enemy combatant to criminal defendant was abrupt. It came late in 2005, as the Supreme Court was weighing whether to take up the legality of his military detention and the Bush administration, by filing criminal charges, pre-empted its review. The prosecution of Padilla was a legal maneuver that kept the issue of his detention without charges out of the Supreme Court. After apprehending him at O'Hare International Airport in Chicago in May 2002, the Bush administration made a choice: to detain him militarily, to thwart further plotting, rather than to follow him in order to gather evidence that might serve a criminal prosecution. Now that Padilla has ended up a criminal defendant after all, the prosecution's case does not fully reflect the view of the Bush administration of who Padilla is or what he did. Senior government officials have said publicly that Padilla provided self- incriminating information during interrogations, admitting, they said, to undergoing basic terrorist training, to accepting an assignment to blow up apartment buildings in the United States, and to attending a farewell dinner with Khalid Shaikh Mohammed, the suspected master planner of the Sept. 11, 2001, attacks, before he flew to Chicago in 2002. But any confessions by Padilla while he was detained without charges and denied access to counsel -- whether or not he was mistreated, as his lawyers claim -- would not be admissible in court. And it is unlikely that information obtained during the harsh questioning of Qaeda detainees would be admissible, either; and, further, the government is disinclined to expose sensitive intelligence or invite further scrutiny of secret jails overseas. The most tangible allegation against Padilla is that in 2000 he filled out, under an alias, an Arab-language application to attend a terrorist training camp. That application is expected to be offered into evidence alongside the wiretapped conversations, but Padilla's lawyers will contest its admissibility, challenging the government's assertion that the "mujahedeen data form" belonged to their client. Deborah Pearlstein, a lawyer with Human Rights First who has consulted with Padilla's defense, said that his would never be an ordinary, pragmatic prosecution. "If Jose Padilla were from Day 1 just charged and tried, then maybe," she said. "But this is a case that comes after three and a half years of the most gross deprivation of human rights that we've seen in this country for a long time." Further, Pearlstein noted, the government has reserved the option, should the prosecution fail, of returning Padilla to the military brig. This, she said, "casts a shadow" over the current prosecution. The Bush administration's military case against Binyam Mohamed, the Ethiopian detainee at Guantanamo, put the current proceedings in a different light, too. In December 2005, Mohamed, 28, was referred to the military commission in Guantanamo for conspiring with Padilla on the dirty bomb plot. It was little noticed at the time. But accusations against Padilla that are nowhere to be found in the indictment against him filled the pages of Mohamed's charging sheet. The sheet referred to the two men meeting in Pakistan after Sept. 11, 2001, studying how to build an improvised dirty bomb, discussing the feasibility of a dirty bomb attack with Qaeda officials and agreeing to undertake the mission to blow up buildings. Mohamed's lawyer, Clive Stafford Smith, said that these charges were based on a forced confession by his client, who, he said, was tortured overseas into admitting to a story that was fed to him. "Binyam was told all along that his job was to be a witness against Padilla, Abu Zubaydah and Khalid Shaikh Mohammed," Stafford Smith said, adding that his client "has no conscious knowledge that he ever met" Padilla. * NPR -- January 3, 2007 US FACES MAJOR HURDLES IN PROSECUTING PADILLA by Nina Totenberg http://www.npr.org/templates/story/story.php?storyId=6682846 A court-ordered psychiatric evaluation is to be completed this week on Jose Padilla, the American held without charge for nearly four years as an enemy combatant. Whatever the judge decides, the Padilla case is an extraordinary legal saga that poses significant difficulties for the government. The story begins on May 8, 2002, when Padilla, a 31-year-old American citizen returning from Egypt, was arrested at O'Hare International Airport in Chicago. Padilla, who had converted to Islam while in prison 10 years earlier, was the focus of a major terrorism investigation. Federal officials believed he had met with top al-Qaida officials, even Osama bin Laden, and was on a mission to set off a radioactive dirty bomb in a major U.S. city. Many of those claims turned out to be untrue, or at least unsubstantiated. But at the time, just seven months after the terrorist attacks of Sept. 11, a number of government insiders were convinced of Padilla's involvement in a terrorist plot. President Bush signed an order declaring Padilla an enemy combatant. At the time, Attorney General John Ashcroft was in Moscow. His spokesman, Mark Corallo, remembers receiving a late-night phone call when Padilla was arrested. Paging through the intelligence then available, Corallo was terrified. "It was chilling," he recalls. "I mean, we were still very close to 9/11. The war in Afghanistan was raging. You still had that sense of fear that any moment something bad could happen." 'A PR GUY'S NIGHTMARE' The question for the Bush administration was how to inform the American people. Although the White House would later tell reporters that Ashcroft had blundered ahead on his own, Corallo says the president's staff insisted the attorney general make the announcement, rejecting arguments from Corallo and others that with Ashcroft in Moscow, it would be a logistical and public relations nightmare. The next morning, the White House changed its mind, says Corallo. But Ashcroft was already in the studio. Corallo says events unfolded like "a slow- motion moment" when you "knock your mother's best china off the table." "This is a PR guy's nightmare," he says. "The cup is off the table, headed to the floor, as the attorney general appears on the television screen with this eerie pink-orange background that made you think of nuclear holocaust." Ashcroft declared, "We have disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive dirty bomb." Padilla would not be seen by any civilian again for two years. He was held incommunicado at the Navy brig in Charleston, S.C., until his case reached the Supreme Court. In June of 2004, the high court ruled in a companion case that no American could be held without charge, without access to counsel and without some due process of law. Padilla's case, however, was sent back to the lower courts on procedural grounds. 'THE PATHOLOGY OF GROUP DECISION-MAKING' Inside the Bush administration, the question was what to do now. Top Justice Department officials warned that if the case went back to the Supreme Court, the administration would almost certainly lose. But according to knowledgeable sources, key players in the Defense Department and in Vice President Cheney's office insisted that the power to detain Americans as enemy combatants had to be preserved. So the administration went back to the lower courts to defend Padilla's detention. By now, though, all mention of a dirty bomb had been removed from the matter, with the government instead contending that Padilla had been part of a plot to blow up apartment houses. At the appeals court level, the government won, and so Padilla's lawyers appealed to the Supreme Court. Inside the administration, the battle over what to do raged on. As one Justice Department official put it, "This was the pathology of group decision-making." Finally, just days before the deadline for the government's filing a brief in the Supreme Court, the Justice Department announced that it was transferring Padilla to the civilian courts. He had been indicted, the department said -- not for planning any offenses in the United States but for conspiracy to murder and maim and provide material support for terrorism against Russian troops in Chechnya and other places. The very conservative judge who had written the appeals court opinion upholding Padilla's enemy combatant status, Judge Michael Luttig, exploded in written rage, refusing to transfer the case to the civilian courts. Luttig accused the Bush administration of a legal shell game that had the "appearance" of "avoiding review by the Supreme Court." Eventually though, after a government appeal to the Supreme Court, the case was transferred to Miami, where Padilla now is scheduled to go on trial. ALLEGATIONS OF 'OUTRAGEOUS' TREATMENT The prosecution faces major problems in the trial. The defense has asked the judge to throw the entire case out, asserting that the government's treatment of Padilla has been "so outrageous as to shock the conscience." According to court papers filed by Padilla's lawyers, for the first two years of his confinement, Padilla was held in total isolation. He heard no voice except his interrogator's. His 9-by-7 foot cell had nothing in it: no window even to the corridor, no clock or watch to orient him in time. Padilla's meals were delivered through a slot in the door. He was either in bright light for days on end or in total darkness. He had no mattress or pillow on his steel pallet; loud noises interrupted his attempts to sleep. Sometimes it was very cold, sometimes hot. He had nothing to read or to look at. Even a mirror was taken away. When he was transported, he was blindfolded and his ears were covered with headphones to screen out all sound. In short, Padilla experienced total sensory deprivation. During length interrogations, his lawyers allege, Padilla was forced to sit or stand for long periods in stress positions. They say he was hooded and threatened with death. The isolation was so extreme that, according to court papers, even military personnel at the prison expressed great concern about Padilla's mental status. The government maintains that whatever happened to Padilla during his detention is irrelevant, since no information obtained during that time is being used in the criminal case against him. Padilla's lawyer, Andrew Patel, rejects that premise. The assumption, says Patel, is that the U.S. government can do anything it wants to an American citizen as long as it does not use any information it extracts in a court of law. Even former Justice Department spokesman Corallo concedes that in hindsight, Padilla was a bit player. Corallo says the government faces a problem over its ever-changing claims about what Padilla did and whether he could be prosecuted in a civilian court. "It's going to make it difficult moving forward, because we were inconsistent," Corallo says. TOO MENTALLY DAMAGED TO STAND TRIAL? Another dilemma faces the government as well. Padilla's lawyers contend that as a result of his isolation and interrogation, their client is so mentally damaged that he is unable to assist in his own defense. He is so passive and fearful now, they maintain, that he is "like a piece of furniture." Even at this late stage, after dozens of meetings with his lawyers, Padilla suspects that they are government agents, says Andrew Patel, who is on the legal team. Padilla may believe that the lawyers assigned to represent him are in fact "part of a continuing interrogation program." The situation has become impossible, defense lawyers say; they've hired two psychiatric experts to examine Padilla. Both have often testified for the prosecution in criminal cases. This time they have sided with the defense. After spending more than 25 hours with Padilla, both psychiatric experts have concluded that his isolation and interrogation have resulted in so much mental damage that he is incompetent to stand trial. The experts believe that Padilla suffers from post-traumatic stress disorder as a result of his isolation and interrogation. According to reports filed by Dr. Angela Hegarty, director of forensic psychiatry at Creedmoor Psychiatric Center in New York, and Dr. Patricia Zapf, director of forensic psychology at the John Jay College of Criminal Justice, Padilla is so fearful that he will not discuss his interrogation, will not look at videotapes of it and will not even review a transcript. In their view, he is not able to understand the significance of legal proceedings against him. DOCTORS SAY HE'S NOT FAKING IT There is no indication that Padilla is faking it, Hegarty says. To the contrary, Padilla denies that he has any problems and tends to identify with the government's interests more than his own. For example, Padilla thought his lawyers were unfair in their rigorous questioning of the FBI agents who arrested him at O'Hare airport. This is a "typical response," writes Hegarty, a modified version of the Stockholm syndrome in which hostages identify with their captors. Because the captors "hold all the power," the more the captive identifies with that power, "the safer he feels." Both Hegarty and Zapf administered a variety of objective tests to evaluate Padilla. While they found that he is able to understand the basic charges against him, he is "unable to assist" his attorneys because of his mental condition and the "paranoia" resulting from his treatment during two years of total isolation, followed by an additional year and a half of similar treatment. Zapf also suggested that Padilla may have suffered "brain injury." Both doctors noted his tics and spasmodic body responses. The government adamantly denies mistreating Padilla, though it does not dispute the particulars cited in Padilla's legal papers. Rather, the government says its treatment of Padilla was humane and notes that it provided medical treatment when necessary. The government agreed to the additional psychiatric evaluation that has now been ordered by the judge. Indeed, there are even some within the government who think it might be best if Padilla were declared incompetent and sent to a psychiatric prison facility. As one high-ranking official put it, "the objective of the government always has been to incapacitate this person." * * *