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NEWS DIGEST 2007.06.05 - 2007.07.31
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New York Times --

July 23, 2007

UNLIKELY ADVERSARY ARISES TO CRITICIZE DETAINEE HEARINGS

by William Glaberson

http://www.nytimes.com/2007/07/23/us/23gitmo.html

NEWPORT BEACH, Calif. -- Stephen E. Abraham's assignment to the Pentagon unit
that runs the hearings at Guantanamo Bay, Cuba, seemed a perfect fit.

A lawyer in civilian life, he had been decorated for counterespionage and
counterterrorism work during 22 years as a reserve Army intelligence officer in
which he rose to the rank of lieutenant colonel. His posting, just as the
Guantanamo hearings were accelerating in 2004, gave him a close-up view of the
government's detention policies.

It also turned him into one of the Bush administration's most unlikely
adversaries.

In June, Colonel Abraham became the first military insider to criticize publicly
the Guantanamo hearings, which determine whether detainees should be held
indefinitely as enemy combatants. Just days after detainees' lawyers submitted
an affidavit containing his criticisms, the United States Supreme Court reversed
itself and agreed to hear an appeal arguing that the hearings are unjust and
that detainees have a right to contest their detentions in federal court.

Some lawyers say Colonel Abraham's account -- of a hearing procedure that he
described as deeply flawed and largely a tool for commanders to rubber-stamp
decisions they had already made -- may have played an important role in the
justices' highly unusual reversal. That decision once again brought the
administration face to face with the vexing legal, political and diplomatic
questions about the fate of Guantanamo and the roughly 360 men still held there.

"Nobody stood up and said the emperor's wearing no clothes," Colonel Abraham
said in an interview. "The prevailing attitude was, 'If they're in Guantanamo,
they're there for a reason.' "

The curtain on the hearings had been pulled back a bit previously, when the
Pentagon, under pressure, released some transcripts. But by stepping forward,
Colonel Abraham gave the Supreme Court and the public a look from an insider at
a process that remains heavily shielded.

He expanded on that account in a series of recent conversations at his law
office here, offering a detailed portrait of a system that he described as
characterized by superficial efforts to gather evidence and frenzied pressure to
conduct hundreds of hearings in a few months.

Most detainees, he said, have no realistic way to contest charges often based
not on solid information, but on generalizations, incomplete intelligence
reports and hints of terrorism ties.

"What disturbed me most was the willingness to use very small fragments of
information," he said, recounting how, over his six-month tour, he grew
increasingly uneasy at what he saw. In the interviews, he often spoke coolly,
with the detachment of a lawyer, but as time wore on grew agitated as he
described his experiences.

Often, he said, intelligence reports relied only on accusations that a detainee
had been found in a suspect area or was associated with a suspect organization.
Some, he said, described detainees as jihadist without detail.

Pentagon officials have dismissed his criticisms as biased and said he was not
in the position to have seen the entire process work.

As an intelligence officer responsible for running the central computer
depository of evidence for the hearings, he said, he saw many of the documents
in hundreds of the 558 cases. He also worked as a liaison with intelligence
agencies and served on one three-member hearing panel.

All of which has left Colonel Abraham, 46, a civilian business lawyer who has
lately been busy with a lawsuit between makers of pomegranate juice, with a
central role in the public debate over Guantanamo. His account has been widely
discussed in Congress, the administration and the press. On Friday, a federal
appeals court judge took note of it in describing what she said were problems
with the Pentagon's hearing process.

He has been called a whistleblower and a traitor. On July 26, he is to testify
before a House committee.

His road to notoriety, he says, is entirely of a piece with his biography. A
political conservative who says he cried when Richard M. Nixon resigned the
presidency, he says he has remained a reservist throughout his adult life to
repay the country for the opportunities it offered his family. His father is a
Holocaust survivor who emigrated after the Second World War.

"It is my duty," Colonel Abraham said of his decision to come forward.

Pentagon officials say his account indicates that he misunderstood the purpose
of the hearings, known as combatant status review tribunals or C.S.R.T.'s, which
the officials say "afford greater protections for wartime detainees than any
nation has ever provided."

A Pentagon spokesman, Lt. Cmdr. Chito Peppler of the Navy, said that Colonel
Abraham's "apparently biased insinuations" did not indicate bad faith or
improper behavior by military officials.

"In his capacity as database manager during his brief stint on active duty
several years ago," Commander Peppler said, "Lieutenant Colonel Abraham was not
in a position to have a complete view of all the evidence used in the
C.S.R.T.'s, as well as the process as a whole."

Colonel Abraham arrived at the Office for the Administrative Review of the
Detention of Enemy Combatants during a chaotic period in September 2004.

The plan for the hearings had come from the highest levels of the Pentagon after
two Supreme Court rulings on June 28, 2004, put the Bush administration on the
defensive over its detainee policies.

One ruling suggested that detainees would be entitled to hearings "before a
neutral decision maker." The other said detainees could have federal courts
review their detentions. Nine days later, Paul D. Wolfowitz, then deputy defense
secretary, issued an order creating the C.S.R.T.'s.

Colonel Abraham had already served a year on active duty after the 2001
terrorist attacks. At Pearl Harbor, he had been cited for exceptionally
meritorious service as "lead counterterrorism analyst," burnishing a record that
included a citation for leading a counterespionage operation in the 1980s that
ended with the detention of three Soviet agents.

A divorced father of a 7-year-old daughter, he was not looking for a posting.
But a commander suggested that his skills were needed: the hearing program was
entering its busiest period, with more than 200 people gathering evidence and
running the hearings at an office near the Pentagon and in Guantanamo.

It was obvious, Colonel Abraham said, that officials were under intense pressure
to show quick results. Quickly, he said, he grew concerned about the quality of
the reports being used as evidence. The unclassified evidence, he said, lacked
the kind of solid corroboration he had relied on throughout his intelligence
career. "The classified information," he added, "was stripped down, watered
down, removed of context, incomplete and missing essential information."

Many detainees implicated other detainees, he said, and there was often no way
to test whether they had provided false information to win favor with
interrogators.

He said he was prohibited from discussing the facts of cases. But public
information, much of it obtained through lawsuits, includes examples of some of
the points he made.

In a hearing on Oct. 26, 2004, a transcript shows, one detainee was told that
another had identified him as having attended a terrorism training camp.

The detainee asked that his accuser be brought to testify. "We don't know his
name," the senior officer on the hearing panel said.

At another hearing, later reviewed by a federal judge, a Turkish detainee, Murat
Kurnaz, was said to have been associated with an Islamic missionary group. He
had also traveled with a man who had become a suicide bomber.

"It would appear," Judge Joyce Hens Green wrote in 2005, "that the government is
indefinitely holding the detainee -- possibly for life -- solely because of his
contacts with individuals or organizations tied to terrorism and not because of
any terrorist activities that the detainee aided, abetted or undertook himself."

In a third hearing, an Afghan detainee said he had indeed been a jihadist --
during the 1980s war against the Soviet Union, when a lot of Afghans were
jihadists. Was that what the accusation against him meant, he asked, or was it
referring to later, during the American war?

"We don't know what that time frame was, either," the tribunal's lead officer
replied.

During one of the recent interviews, Colonel Abraham said that the general
accusations that detainees were jihadists without much more alarmed him.

"As an intelligence agent, I would have written 'junk statement' across that,"
he said.

Critics of the administration's detention policies have questioned the hearings'
fairness, noting that detainees are not permitted lawyers and cannot see much of
the evidence. Pentagon officials have said such criticism is not meaningful
because a combatant status hearing "is not a criminal trial." They note that 38
of the 558 cases ended in decisions favorable to the detainees.

But Colonel Abraham said that in meetings with top officials of the office, it
was clear that such findings were discouraged. "Anything that resulted in a 'not
enemy combatant' would just send ripples through the entire process," he said.
"The interpretation is, 'You got the wrong result. Do it again.' "

He said his concerns about the fairness of the hearings had grown as time
passed. "The hearings amounted to a superficial summary of information, the
quality of which would not have withstood scrutiny in any serious law-
enforcement or intelligence investigation," he said.

While in Washington, he stayed with a sister, Susan J. Borschel, a real estate
lawyer. Last week, she recalled Colonel Abraham's saying that he was troubled by
the way the Pentagon was running the hearings. It was a notable observation, she
said, from a "law and order" man.

Soon, Colonel Abraham said in one of the conversations, he began to worry that
involvement in the process might be improper for a lawyer because there were so
many shortcuts. "There were too many assumptions. Too many presumptions," he
said. He said he had expressed his concerns to supervising officers.

His law partner, Steven Fink, said that would not have been unusual. "You will
get his opinion whether you want it or not," Mr. Fink said.

Colonel Abraham's misgivings reached a peak in December 2004.

On Dec. 10, he wrote a letter to Rear Adm. James M. McGarrah, who was running
the hearings operation. In the letter, a copy of which he provided to The New
York Times, Colonel Abraham asked to be released from his assignment, saying
participation "may be in conflict with my obligations as an attorney." He said
he had never received an official response.

He finished his tour, which ended in March. He came back to his life in Newport
Beach and, he said, more or less forgot about Guantanamo.

As it turned out, lawyers at his sister's firm, Pillsbury Winthrop Shaw Pittman,
began representing detainees in 2006. Though she is not involved, she mentioned
that her brother had worked on the hearings.

Last month, one of the lawyers, Matthew J. MacLean, a former Army lawyer, called
Colonel Abraham and asked him to look at an affidavit filed in May by Admiral
McGarrah.

Colonel Abraham said the admiral's affidavit, describing the hearing process as
orderly and considered, had convinced him that he had to step forward. He began
to describe his experience.

"This was it," Mr. MacLean said last week, "the first evidence of how these
tribunals operated from the inside."

Mr. MacLean called Colonel Abraham for the first time on June 8. The detainees'
lawyers filed his seven-page affidavit in court on June 22. It was sharply
critical of the hearings and the evidence they used, saying "what purported to
be specific statements of fact lacked even the most fundamental earmarks of
objectively credible evidence." On June 29, the Supreme Court announced that it
would hear the detainees' case.

One of the tribunals the lawyers have learned more about since then was the one
on which Colonel Abraham sat. Documents they have gathered show that he was
assigned to the panel in November 2004. The detainee was a Libyan, captured in
Afghanistan, who was said to have visited terrorist training camps and belonged
to a Libyan terrorist organization.

By a vote of 3 to 0, the panel found that "the detainee is not properly
classified as an enemy combatant and is not associated with Al Qaeda or
Taliban."

Two months later, apparently after Pentagon officials rejected the first
decision, the detainee's case was heard by a second panel. The conclusion, again
by a vote of 3 to 0, was quite different: "The detainee is properly classified
as an enemy combatant and is a member of or associated with Al Qaeda."

Colonel Abraham was never assigned to another panel.

[ Margot Williams contributed reporting from New York. ]

*


Ottawa Citizen / CanWest --

July 5, 2007

DETAINEES NOT ENTITLED TO CONSTITUTIONAL PROTECTIONS, SAYS [SCALIA]

By Ian MacLeod

http://www.canada.com/topics/news/world/story.html
?id=38f4a04e-20f6-45d7-97ee-088a25f8b7da&k=90455

OTTAWA -- A U.S. Supreme Court justice says terror detainees at Guantanamo Bay,
Cuba, including Canadian Omar Khadr, are not soldiers and therefore not entitled
to the legal protections of the U.S. constitution and international conventions.

Have we "promised to treat them like the German General Staff?" an apparent
reference to the high command officers prosecuted at the 1940s Nuremberg War
Crimes Trials. "I don't think we have," Justice Antonin Scalia told a recent
legal conference in Ottawa.

[CCISS Conference, June 10-12, Carleton University.]

His blunt remarks are now under scrutiny with the surprise announcement late
last week the U.S. high court will hear an appeal on behalf of Khadr and other
Guantanamo detainees to be allowed to use U.S. civilian courts to challenge
their indefinite confinement.

The comments by the man considered the court's conservative beacon suggest his
mind is already made up. If so, it raises the question of whether his hardline
views will influence others on the increasingly conservative, nine-judge court
to reject the Khadr-led appeal that detainees are entitled to their day in
court.

"Most people in Guantanamo were not captured in the United States, they were
captured on a foreign battlefield," Scalia told the Ottawa conference of
international judges, lawyers and national security officials on June 12.
"Guantanamo is not part of the United States and habeas corpus doesn't run
there.

"What happens in Guantanamo is still covered by American law, by the rules laid
down by the president of the United States."

The Geneva Convention, meanwhile, "applies to prisoners of war and prisoners of
war are defined as people who are fighting in uniform under some organized
group. That does not describe these people. The Geneva Convention covers pirates
and I don't think it covers terrorists who are not in uniform and not subject to
organized command."

Similar remarks by Scalia at a 2006 conference in Switzerland led to
unsuccessful calls for him to recuse himself from the then soon-to-be-heard
Supreme Court appeal of detainee Salim Ahmed Hamdan. The former chauffeur and
aide to al-QaIda leader Osama bin Laden also has joined in the latest appeal.

"War is war, and it has never been the case that when you captured a combatant
you have to give them a jury trial in your civil courts. Give me a break,"
Newsweek quoted the outspoken judge as saying after obtaining a tape of the
speech at the University of Freiburg.

Like at the Ottawa conference, Scalia was asked by an audience member at the
Swiss conference whether the estimated 380 Guantanamo detainees are protected
under the Geneva or human-rights conventions.

"I had a son on that battlefield and they were shooting at my son, and I'm not
about to give this man who was captured in a war a full jury trial. I mean it's
crazy," Newsweek reported him as replying in an apparent reference to his son,
Matthew, who served with the U.S. military in Iraq.

And in a stinging defeat for the U.S. administration, a majority of the court
later agreed with Hamdan's argument the Guantanamo military tribunals created by
U.S. President George W. Bush were unconstitutional. Congress later passed a law
creating new military commissions.

Scalia was one of three dissenters. He argued the court had no jurisdiction in
the matter and U.S. legal protections and habeas corpus -- the legal requirement
that authorities satisfy a court that a person in custody is lawfully detained
-- do not extend to detainees at Guantanamo.

In another Guantanamo case heard by the court in 2004, Scalia again dissented
from a majority ruling that detainees should have some sort of recourse to
challenge their detention, leading the administration to create an
administrative process.

Last week's announcement by the high court that it will hear the detainees' new
appeal comes three months after it rejected the same appeal.

Although it was issued without explanation, the Supreme Court justices
reconsidered only after receiving a sworn statement from a U.S. intelligence
official. That person reported facing pressure from military commanders to
declare Guantanamo detainees enemy combatants even without proper evidence.

Lawyers for the detainees say the intelligence officer's statement supports
long-standing complaints that military hearings for foreign terrorism suspects
are unfair and set up to favour findings that detainees were being legitimately
imprisoned.

The latest appeal, to be heard this fall, is expected to challenge the Detainee
Treatment Act.

The White House-backed bill, passed by Congress, strips foreign terrorism
suspects at Guantanamo of the right to petition civilian U.S. courts to review
their detention.

In February, a U.S. federal court of appeals upheld the provision.

In a separate legal decision last week involving Khadr, a military judge refused
to reconsider a June 4 ruling that threw out all terror-related charges against
the 20-year-old Canadian. Khadr is accused of killing a U.S. soldier during a
firefight at a suspected al-Qaida compound in Afghanistan in 2002.

The case was dismissed on the grounds the Pentagon failed to prove the Canadian
is an "unlawful" enemy combatant. By law, detainees can face U.S. war crimes
tribunals only if it is found they were not legitimate fighters. Charges against
Hamdan, of Yemen, were dropped for the same reason.

*


Washington Post --

July 4, 2007
A DECLARATION THE PRESIDENT IGNORES
By John Fabian Witt

http://www.washingtonpost.com/wp-dyn/content/
article/2007/07/03/AR2007070301526.html

As we gather around picnic tables and backyard barbecues today, we should pause
to consider a forgotten dimension of the occasion -- one that is as important
now as it was on July 4, 1776.

We all know that the Declaration of Independence announced the United States'
freedom from the British Empire. We all remember that it declared certain truths
to be self-evident. But what you probably haven't heard is that the declaration
also advanced an idea about war. The idea was that war ought to be governed by
law.

In late June 1776, as the first detachments of what was to become a sizable
British force were landing 90 miles away in New York, Thomas Jefferson and the
Continental Congress in Philadelphia drew up charges denouncing King George III
to the world. The accusations were to serve as the core of the declaration. The
climactic final charges, for which the rest were prologue, indicted the king for
war crimes.

Britain's navy, wrote Jefferson and the Congress, had "plundered our Seas,"
while its armies had "ravaged our Coasts, burnt our Towns, and destroyed the
Lives of our People." Jefferson accused the British of employing legions of
foreign mercenaries to commit acts of death and desolation "scarcely paralleled
in the most barbarous Ages," acts unworthy of civilized nations. He charged
British forces with taking Americans hostage and compelling them to bear arms
against their own country. He and the Congress concluded their litany of war
crimes by condemning the king's two most fiendish offenses against the laws of
war: inciting slave insurrections and encouraging attacks by "merciless Indian
Savages, whose known Rule of Warfare, is an undistinguished Destruction, of all
Ages, Sexes and Conditions."

Jefferson's original draft added a further war crime allegation that did not
make it into Congress's final version: the "piratical warfare" of the English
slave trade, which was a "cruel war against human nature itself." Delegates from
Georgia and South Carolina insisted that the passage be removed. But as
Jefferson conceived it, the slave trade was akin to piracy, the most treacherous
violation of the 18th-century laws of war.

The declaration was the beginning of a remarkable but now little-remembered
American tradition in the laws of war. In the 1780s, a treaty with Prussia
committed the United States to follow European rules of warfare. During the
Civil War, Abraham Lincoln published a code for the Union Army that serves to
this day as the foundation for the law of war around the globe.

In the 20th century, Americans took a lead role in establishing the modern law
of war. Franklin Roosevelt directed the creation of the Nuremberg tribunal for
high-ranking German war criminals, and his aides wrote the U.N. charter's rules
for the use of force. In this century we can see traces of Jefferson's charges
in the law of naval warfare, in the distinction between combatants and
civilians, in international law restricting the use of mercenaries and in the
Third Geneva Convention's rules on prisoners of war.

Today, of course, much of the world thinks that the United States has traded
places with George III's British Empire. We are the global hegemon, and since
Sept. 11, 2001, we have become infamous the world over for eschewing the law of
war in the name of patriotic self-defense. At Guantanamo, in shadowy secret CIA
prisons, at Abu Ghraib, and elsewhere, leaders in the White House, the Justice
Department, and the intelligence agencies have disowned the laws of war as
unacceptable constraints on the pursuit of national security.

The tragedy of the post-Sept. 11 American assault on the laws of war is that it
seems to have been not only shameful but self-defeating. Disrespect for what the
declaration called "the Opinions of Mankind" has fueled anti-American sentiment
and spurred terrorist recruitment in North Africa, Europe and the Middle East.
Illegal interrogation tactics seem to have produced disappointingly little
intelligence. And extraordinary renditions to secret prisons have disrupted the
cooperation of many of our most important allies in the war on terrorism,
producing arrest warrants against U.S. intelligence agents in Germany and Italy.
Patriotism at the expense of the laws of war seems to have gone badly awry.

For the delegates to the Continental Congress in 1776 -- as for Lincoln and
Roosevelt in subsequent centuries -- patriotism and the laws of war went hand in
hand. Since the revolution, Americans have helped shape a law of war that
advanced the nation's interests. In moments of great crisis, our finest leaders
have forged a powerful union between the security of the nation and the laws of
war. It's a lesson from the first July 4 that we could sorely use again this
year.

[ John Fabian Witt, a professor of law and history at Columbia University, is
writing a book on the laws of war in American history. ]

*


New York Times --

July 3, 2007
LEGISLATION COULD BE PATH TO CLOSING GUANTANAMO
By Thom Shanker And David Johnston

http://www.nytimes.com/2007/07/03/washington/03gitmo.html

WASHINGTON, July 2 - Seeking a legal path to shutting down the Guantanamo
detention facility, senior advisers to President Bush are exploring whether the
White House and Congress can agree to legislation that would permit the long-
term detention of foreign terrorism suspects on American soil, Pentagon and
administration officials say.

The idea of creating a new legal category for some foreign terrorism detainees,
which is still in its early stages, faces daunting political, legal and
constitutional difficulties. But it is gaining support among some White House
and national security officials as the most promising course to allow the
president to close the site at Guantanamo Bay, Cuba, that has generated intense
criticism at home and abroad.

Essentially, the administration would propose legislation that would result in
dividing the estimated 375 Guantanamo detainees into three legal categories. The
one that would call for legislative action would include detainees like Khalid
Shaikh Mohammed, the mastermind of the September 2001 attacks, and others whose
trials would risk exposing intelligence operations. This group, estimated at two
dozen to 50, would be placed indefinitely in military brigs on American soil.

A second group would also be moved to the United States, most likely to face
trial in military courts, but perhaps with more legal guarantees than in the
current military tribunal system.

The third, and largest, group would consist of detainees to be released to their
home countries.

The emerging proposal was described by administration officials who insisted on
anonymity because the idea has not been approved by the White House. In fact,
divisions are forming among the president's senior advisers and aides over the
evolving plan, with support for a legislative remedy coming from Defense
Secretary Robert M. Gates and Secretary of State Condoleezza Rice.

But the concept of closing Guantanamo faces stiff opposition from those close to
Attorney General Alberto R. Gonzales and Vice President Dick Cheney, who are
said to argue that moving the detainees to the United States would invite
crippling legal challenges and undermine the broader counterterrorism effort
while, in the end, doing little to quiet international criticism of American
detention policies.

Some officials who oppose closing Guantanamo have warned that moving terrorism
suspects caught on the battlefield into proceedings that more closely mirror
traditional criminal trials would undermine a central pillar of the
administration's strategy in its campaign against terrorism, cast as an
offensive military campaign on a global battlefield.

One person close to the administration who is familiar with the thinking of
those opposed to closing Guantanamo said "the people who are standing firm on
this issue have either left" -- like former Defense Secretary Donald H. Rumsfeld
-- "or their bureaucratic influence has substantially waned, like Gonzales and
Cheney." Those urging the closing of Guantanamo, like Stephen J. Hadley, the
national security adviser, "are ascendant," this person said.

Even so, the Bush administration, struggling to preserve support in Congress for
the war in Iraq, may be eager for a legislative compromise on the detention
center to ease criticism from leading lawmakers of both parties and offer an end
to legal scrutiny, which has gone to the Supreme Court.

On Friday, the Supreme Court unexpectedly reversed course and announced that it
would review the constitutionality of the system now in place to deal with the
most dangerous detainees -- military tribunals to try them for war crimes.

At the heart of the discussion within the administration is the concept of
legislation that would set out a way to process, classify and incarcerate
terrorist leaders and enemy combatants who are regarded as significant,
continuing threats.

The most senior administration official to describe the concept publicly is Mr.
Gates, who said, "I think that the biggest challenge is finding a statutory
basis for holding prisoners who should never be released and who may or may not
be able to be put on trial."

Mr. Gates said the challenge to finding a legislative or administrative solution
was "the nature of the information that is against them, if it involves
sensitive intelligence sources or something like that." But, he noted in
comments on Friday, "people are working harder on the problem" in the
administration.

Prof. Neal K. Katyal of Georgetown University Law Center said that in the wake
of the Supreme Court's announcement on Friday, it might be an opportune time to
explore a new legal approach to detaining terrorism suspects inside the United
States, perhaps a special national security court with different standards of
proof than those of criminal courts.

"Is it possible to draft something that gives less than the full-blown rights of
a criminal trial for those facing detention and for that process to survive a
Supreme Court review?" he asked. "I think it is."

Professor Katyal, an opponent of the administration's detention policies, said
nonetheless that "it's not realistic to think that all people can be tried in an
ordinary criminal court."

Administration officials acknowledged that it was particularly difficult to
figure out how to deal with detainees viewed as too dangerous to repatriate and,
likewise, pose too great a risk to be offered legal protections granted others
brought to American soil under current laws. These are the detainees that would
fall into a new legal category envisioned under the possible legislation.

"Detainees that come to the United States could have the full panoply of U.S.
constitutional protections, which means you'd have to have a judicial hearing on
them in a certain amount of time," said J. Alan Liotta, principal director for
the Office of Detainee Affairs at the Pentagon.

Among these rights would be an assessment of the process of arrest and chain of
custody of evidence. But many detainees were captured in combat situations
across the Middle East that did not allow the sort of formal collection of
evidence required by trials in the United States.

Mr. Liotta's comments came in an invitation-only conference call with online
journalists on June 26; a transcript of the discussion is posted on a Defense
Department Web site.

"If you couldn't have that judicial hearing in a certain amount of time, they
could be released," he added.

While acknowledging that the Guantanamo detention center had tainted the
nation's reputation, he also warned that simply closing it and moving the
terrorism suspects to military brigs in the United States would not ease the
controversy.

"I think a very real argument could be made that, as long as you're not changing
the basic legal construct of how we're holding them and why we believe we're
entitled to hold them," Mr. Liotta said, "no matter where you put them," the
controversy will continue.

[ Neil A. Lewis and Sheryl Gay Stolberg contributed reporting. ]

*


Harper's --

July 2007

STATE OF EXCEPTION: BUSH'S WAR ON THE RULE OF LAW

by Scott Horton

http://www.harpers.org/archive/2007/07/0081595

At its finest moments the Republican Party has been a vocal and unsparing
advocate for human rights. "Though force can protect in emergency," insisted
Dwight D. Eisenhower, the party's great warrior-president, "only justice,
fairness, consideration, and cooperation can finally lead men to the dawn of
eternal peace." But under the current administration, those designated as
enemies have no rights, neither under the laws of war nor under any notion of
criminal justice. A radical rupture has occurred; American legal tradition has
been swept aside and, with it, long-established precedents for dealing with
adversaries in wartime -- even those accused of heinous crimes. Nowhere is that
more clear than in the treatment of the so-called habeas lawyers (so named
because of their repeated attempts to enforce the rights of their clients
through the writ of habeas corpus -- the legal procedure that allows an
imprisoned person to test the legality of his detention) who counsel the
detainees at Guantanamo Bay, Cuba.

The habeas lawyers have been tarred with ethnic slurs and accusations of
homosexuality, accused of undermining national security, subjected to continual
petty harassment. They have also had their livelihoods threatened through
appeals to their paying clients. These events have been reported as separate
incidents in the press, but this conduct results from a carefully orchestrated
Bush Administration policy that goes under the rubric of "lawfare."

According to Major General Charles J. Dunlap Jr., now the Air Force's deputy
judge advocate general, lawfare is the "strategy of using or misusing law as a
substitute for traditional military means to achieve an operational objective."
As the neoconservative lawyers David Rivkin and Lee Casey have put it, lawfare
aims to "gain a moral advantage over your enemy in the court of world opinion,
and potentially a legal advantage in national and international tribunals." The
concept, which has been discussed in the Federalist Society and at National
Review Online, became doctrine in the March 2005 National Defense Strategy of
the United States of America: "Our strength as a nation state will continue to
be challenged by those who employ a strategy of the weak using international
fora, judicial processes, and terrorism." Note the equation of "international
fora, judicial processes, and terrorism." In other words, turning to courts for
the enforcement of legal rights, appeals to international tribunals, and
terrorism are seen as the elements of a single consistent enemy strategy. In the
strange reasoning of the lawfare theorists, lawyers who defend their clients, or
who present their claims to domestic or international courts, might as well be
terrorists themselves.

Human-rights organizations that stand in court to insist that the Geneva
Conventions apply to Guantanamo detainees are thus also guilty of lawfare.

This is a remarkable departure from traditional legal and military doctrine. The
United States has long had a preference for using international courts to avoid
military confrontations whenever possible. At the conclusion of the Civil War,
for example, the United States was at the brink of hostilities with Great
Britain over her building and supplying of the Alabama and other Confederate
warships. The U.S. and Great Britain agreed to take the dispute to binding
arbitration. The result was an enormous amount of money awarded to the United
States in 1872; moreover, conflict with Britain was averted, and the former
enemy eventually emerged as a vital U.S. ally. Theodore Roosevelt, no shrinking
violet, mediated the Treaty of Portsmouth in 1905 and helped bring the Russo-
Japanese War to a close; for his efforts he was awarded the Nobel Peace Prize.

Lawfare, as defined by Bush Administration officials, is a terrorist tactic. Yet
to anyone trained in English and American jurisprudence, not to mention the
thinking that has dominated the Anglo-Saxon legal world at least since 1688,
those who are accused of engaging in lawfare are simply exercising well-
established legal rights and liberties. Indeed, the lawfare doctrine is the
conceptual framework that best reveals the degree to which the Bush
Administration has effectively declared war on the rule of law itself.

~ ~ ~

From the beginnings of the "war on terror," both the Department of Defense under
Donald Rumsfeld and the Department of Justice under John Ashcroft and later
Alberto Gonzales took the position that detainees had no right to counsel.
Guantanamo Bay was selected to host a detention facility largely because it was
believed to be beyond the jurisdiction of U.S. courts. This strategy failed, at
least initially, and federal courts issued orders recognizing counsel for
purposes of habeas corpus petitions and directing that the counsel be given
access to their clients. The Pentagon was forced to relent, and defense lawyers
were given grudging access to the detainees. At every stage, however, the U.S.
government has actively subverted attempts to provide its prisoners with legal
representation. 1

{ FN1 Never more so than in the habeas-corpus-bashing Military Commissions Act
of 2006 -- a piece of legislation that will stand in history alongside the Alien
and Sedition Acts and the Fugitive Slave Act as a reminder of the kind of
constitutional vandalism that Congress is capable of when it really tries. }

This spring I interviewed ten habeas lawyers about their experiences visiting
Guantanamo and found the descriptions depressingly similar. All noted a stark
formality underneath which hostility bristled. Karen Greenberg, executive
director of the Center on Law and Security at the New York University School of
Law, agreed with this assessment. Greenberg went for a four-day visit to
Guantanamo in early March. "Several times during the course of my tour," she
told me, "habeas lawyers were mentioned with disdain and suspicion, as if they,
alongside the detainees, were enemies to be reckoned with." Several of those I
interviewed described tedious formalities, including frequent searches of files,
notebooks, papers, and materials brought by counsel. Copies of court papers and
pleadings are intercepted, with the claim that their transmission to the
detainees is not permitted. Attorney-client confidentiality is respected
grudgingly, if at all.

David H. Remes, of the Washington, D.C., law firm Covington & Burling, reported
that confidential notes from client meetings had been opened. "Everything we
learn from our clients is presumed to be classified information," said Remes.
"We are therefore required at the end of each day to turn over to our military
escorts, in sealed envelopes, our client interview notes. At the end of our
visits, we may not take our notes with us; instead, the notes must be sent to a
secure facility in Crystal City, Virginia, where they must be reviewed by a
government privilege review team, which is supposedly walled off from the DOJ
litigation team, before the notes can be made public." Habeas lawyers' client
interview notes are supposed to be sealed with three security stickers to
prevent tampering. Remes told me that on one of his visits to Guantanamo he
clashed over client access with the officer overseeing the visit: "When I
returned to Washington, the court security officer, who is responsible for the
handling of our papers once they are in Washington, informed me that the
envelope containing my notes had arrived with all three security stickers broken
and the envelope flap opened.

"The government claimed that this was accidental -- the result of jostling when
our military escort took the envelope to the post office at the base. More
likely, the military authorities opened the envelope to show that they could do
so with impunity and that habeas counsel can have no expectation that the
government will respect the attorney-client privilege." 2

{ FN2 - An examination of the Department of Defense's redactions from testimony
at closed hearings reveals a consistency in what officials consider "classified"
about these conversations: whenever detainees describe how they have been
subjected to torture and other physical and mental abuse, the passages are
stricken. The Pentagon apparently considers torture techniques to be highly
classified national-security information. Considering that all of these
interrogation protocols have now been the subject of extensive reporting in the
press as well as the subject of congressional hearings and that many of the
underlying documents have been published, it is difficult to understand the
logical basis for the government's claim of secrecy. A more likely explanation
is a desire to avoid embarrassment from the disclosure of practices that much of
the world views as criminal. Secrecy is being used to conceal criminality -- not
of the detainees but of the government. }

Several attorneys I spoke to remarked that their clients had been told that all
their interviews with lawyers were spied upon and that there were no confidences
between the habeas lawyers and their clients. "My client Jumah al-Dossari," said
Joshua Colangelo-Bryan of Dorsey & Whitney, "reported that interrogators told
him that they knew what he told his attorneys." Some described how security
guards opened notes of confidential attorney-client meetings and began to read
them under the pretense of checking for contraband. Clive Stafford Smith, a
prominent English human-rights lawyer with U.S. legal training and experience,
has represented a number of detainees at Guantanamo. He described meeting with
one of his clients in the spring of 2006: "My client suddenly and awkwardly
said, ‘The interrogators say that you have sex with men, and that you can't be
trusted.'" Another client said that interrogators had told him that his lawyer
was a "Jew and a Zionist and only interested in money, not in helping you."
Stafford Smith described this as a calculated effort to undermine the attorney-
client relationship: "In our visits to Guantanamo, we have only a few hours over
a period of several days to meet with our clients. The point of these tactics is
to frustrate our ability to communicate, forcing us to waste precious hours in
efforts to reestablish trust."

Stafford Smith's account parallels that of Shearman & Sterling partner Tom
Wilner. In a court filing in April 2005, Wilner states that two of his Kuwaiti
clients told him that interrogators had warned them that he was Jewish. He
quoted the interrogators: "How could you trust Jews? Throughout history, Jews
have betrayed Muslims. Don't you think that your lawyers, who are Jews, will
betray you? . . . Don't ever believe that a Jew will help a Muslim unless he
gets more out of it than he gives. . . . What will other Arabs and Muslims think
of you Kuwaitis when they know the only help you can get is from Jews?" 3

{ FN3 - Habeas lawyers have also been accused of complicity in or responsibility
for the hunger strikes and suicide attempts by detainees. Colangelo-Bryan notes
that after a detainee attempted suicide in October 2005, a military lawyer told
him it had been suggested that he had given the detainee an implement with which
to cut himself. Stafford Smith recounts being pulled aside on August 5, 2005,
taken into a cell, and told by a uniformed officer, "You're the one behind this
hunger strike." }

~ ~ ~

The government's strategy, which stands in clear defiance of the Supreme Court
decisions in Hamdan and Rasul, has clearly been effective. It aims to destroy
any relationship of trust between the detainees and their lawyers as a way of
bringing all court action to an end. Several habeas lawyers have reported that
their clients asked them to stop acting on their behalf.

The Pentagon usually dismisses the incidents attorneys complain of as individual
instances of incivility or unauthorized statements. But these episodes fit an
unmistakable pattern: they are sharply at odds with the formal, restrained
habits of most military prisons and military lawyers, and they reflect the
ideological structure of the lawfare concept. Further evidence of the systematic
character of the administration campaign can be found in public remarks by
officials; indeed, there has been no shortage of government spokespersons
willing to go on the record disparaging the habeas lawyers, often in apparent
collaboration with the press. On January 11, 2007, for example, Charles D.
("Cully") Stimson, the deputy assistant secretary of defense for detainee
affairs, gave an interview to Federal News Radio, a Washington, D.C., station
that targets an audience of federal employees. "I think," said Stimson, "the
news story that you're really going to start seeing in the next couple of weeks
is this: As a result of a FOIA request through a major news organization,
somebody asked, ‘Who are the lawyers around this country representing detainees
down there?' and you know what, it's shocking." Stimson then proceeded to give
the full names of a dozen of the nation's most prominent law firms, adding: "I
think, quite honestly, when corporate CEOs see that those firms are representing
the very terrorists who hit their bottom line back in 2001, those CEOs are going
to make those law firms choose between representing terrorists or representing
reputable firms, and I think that is going to have major play in the next few
weeks. And we want to watch that play out."

The following morning the Wall Street Journal published an editorial by
neoconservative Robert L. Pollock, a member of the Journal's editorial board.
Pollock's piece also attacked the law firms providing pro-bono representation to
the Guantanamo detainees. (Pro-bono attorneys are not compensated for their
work; they provide defense counsel as a form of public service designed to
ensure that the indigent have adequate and fair legal representation.) Pollock
quoted an unnamed "senior U.S. official," who made the following comment:
"Corporate CEOs seeing this should ask firms to choose between lucrative
retainers and representing terrorists." 4

{ FN4 - If this was the beginning of a campaign to hit the habeas lawyers
squarely in the pocketbook by driving away their corporate clientele, it
backfired. Former Reagan Administration solicitor general Charles Fried led a
list of prominent conservatives who lashed out at Stimson. Stimson was forced to
apologize for his comments and then to resign. The Pentagon claimed that
Stimson's comments were not a reflection of official policy. }

On November 10, 2006, the attorney general of each of Australia's states and
territories signed the Fremantle Declaration, embracing seven fundamental
principles of justice, including the right to a fair trial, the guarantee of the
right of habeas corpus, a prohibition of indefinite detention, and a ban on
torture. Although the declaration contained no explicit reference to David M.
Hicks, a former Australian cowboy and kangaroo skinner being detained at
Guantanamo, the Fremantle Declaration was immediately understood as a
condemnation of the conditions under which he was held, of the inadequacy of the
legal proceedings the United States proposed to conduct, and of the Bush
Administration's efforts to suspend the writ of habeas corpus.

Hicks's counsel was Major Michael D. Mori, one of the best-known of the
uniformed defense lawyers. Recognizing that the Bush Administration had cut a
number of deals with allies on the treatment or relocation of their nationals,
Mori had brought Hicks's case to Australia and begun an active lobbying campaign
on his client's behalf. Mori's work, unlike that of the pro-bono counsel, was
part of his formal duty requirements. But similar attempts were made to impede
his progress. Reportedly, a government office actively tried to block Mori's
trips to Australia, and the chief military prosecutor for the tribunal at
Guantanamo publicly denounced Mori while privately suggesting reasons Mori could
be disciplined.

Nor was Mori's case an isolated incident. Lieutenant Commander Charles D. Swift
was detailed to serve as defense counsel to Salim Ahmed Hamdan, a Guantanamo
detainee who admits that he was Osama bin Laden's driver. Working with
Georgetown law professor Neal Katyal, Swift challenged the legality of the
military commission's process in which Hamdan was to be tried up to the Supreme
Court, where he prevailed on all major issues. For his brilliant and highly
effective advocacy, Swift was runner-up for The National Law Journal's lawyer of
the year award in 2005, and in 2006 he was named one of the one hundred most
influential lawyers in America by the same publication -- the only Defense
Department lawyer to be so recognized. He was rewarded by being passed over for
promotion and is therefore now preparing to depart the service. Several other
military lawyers told me they felt that a Guantanamo defense assignment was a
"career stopper." "Either you roll over and show you're a worthless lawyer, or
you give it all you've got and prepare to leave the service," said one. 5

{ FN5 - This spring, the government sought a protective order that seeks yet
again to restrict access by lawyers to their clients. This move was condemned by
the presidents of the American Bar Association and the New York City Bar
Association. }

~ ~ ~

What makes the cases of the habeas lawyers so disturbing, what evokes the
specter of tyranny, is that many of the legal issues involved were resolved a
century before America gained its independence. It is as if hundreds of years of
legal precedent suddenly vanished.

Although the English civil wars were fought over broad religious and political
issues, when we read the masterful histories of Thomas Babington Macaulay and G.
M. Trevelyan it seems that much of the fighting was actually over technical
legal questions: Will habeas corpus be guaranteed? Will there be a right to a
jury? Can the prosecution use secret evidence? Will the courtroom be open and
the trial public? Will the accused have the right to know the evidence against
him, to face his accuser? Can torture and other cruel practices be used to
extract evidence? These issues echo, to an astonishing extent, the issues that
the Guantanamo habeas lawyers are litigating today. The Roundheads who rose for
God and Parliament defined the justice of their cause in similar terms.

Indeed, the entire history of seventeenth-century England can be seen as the
triumph of demands for fair process and justice over the claims of royal
prerogative. As Trevelyan wrote, "At a time when the Continent was falling a
prey to despots, the English under the Stuarts had achieved their emancipation
from monarchical tyranny by the act of the national will. . . . Never perhaps in
any century have such rapid advances been made towards freedom."

These advances came at great cost. Lawyers who advocated habeas, assailed the
injustice of the Stuart courts, and denounced torture were cruelly treated when
the power of the monarchy waxed. No figure merits more recognition in this
regard than John Cooke, the Commonwealth's solicitor general. Cooke engineered
procedural reforms designed to grant equal access to justice and to ensure that
considerations of humanity and fairness governed the legal process, and he
masterminded the defense for the regicides at their trial in 1660. But Cooke and
a large number of other leaders of the legal-reform movement were tried and
gruesomely executed in the kangaroo courts that were conducted following the
Stuart Restoration.

After years of Stuart revenge against lawyers, it would take another generation
to establish that justice demands a fair defense and that the actions of defense
counsel should not be confused with the crimes of their clients. But the public
remembered the cruelty of the Stuart monarchs. John Milton, for instance,
memorialized the drawing and quartering of his contemporary John Cooke in his
epic Samson Agonistes ("thir carkasses/To dogs and fowls a prey, or else
captiv'd:/Or to the unjust tribunals, under change of times").

One hundred and fifty years later, at the divorce trial of Queen Caroline, the
importance and independence of defense counsel was finally well appreciated.
Henry Peter Brougham, who handled the queen consort's defense, threatened to
make public information embarrassing to the Crown. Considering the identity of
the king in question -- George III's dissolute son -- that wouldn't have been
difficult, but presumably it related to his secret and illegal prior marriage.
Defending himself, Brougham furnished the classic statement of the
responsibility of a good defense counsel:

"An advocate, in the discharge of his duty, knows but one person in all the
world, and that person is his client. To save that client by all means and
expedients, and at all hazards and costs to other persons, and, among them, to
himself, is his first and only duty; and in performing this duty he must not
regard the alarm, the torments, the destruction which he may bring upon others.
Separating the duty of a patriot from that of an advocate, he must go on
reckless of consequences, though it should be his unhappy fate to involve his
country in confusion."
~ ~ ~

America, the last redoubt of the Roundheads, predictably took an even more
protective view of defense counsel and their role in unpopular causes. On March
5, 1770, British soldiers fired into an unruly Boston crowd that had hurled
snowballs at them. Five colonists were killed and six wounded by the gunfire in
an incident that came to be known as the Boston Massacre and is invariably
counted among the warning rumbles of the American Revolution. The British
soldiers and their officer were brought up on charges of murder, and the patriot
John Adams, known for his criticism of the British Townshend Acts to tax
imports, was engaged to defend them. Adams argued that the soldiers were
intimidated by the crowd and were acting only in their self-defense -- and won
acquittal for seven of his clients; two others were convicted of the lesser
charge of manslaughter. In the highly charged atmosphere of the trial, Adams was
risking his physical safety and his career as a politician.

"I . . . devoted myself to endless labour and Anxiety if not to infamy and to
death," wrote Adams in his autobiography, "and that for nothing, except, what
indeed was and ought to be all in all, a sense of duty."

"The Part I took in Defence of Captn. Preston and the Soldiers," he wrote in his
diary, "procured me Anxiety, and Obloquy enough. It was, however, one of the
most gallant, generous, manly and disinterested Actions of my whole Life, and
one of the best Pieces of Service I ever rendered my Country."

John Adams was subsequently a leader of the Revolution, as well as the first
vice president and the second president of the United States. In his view the
interests of justice could not be separated from the interests of his country,
and justice required that the British soldiers have a fair and vigorous defense.

Consider also the events of June 1942, when German submarines deposited a team
of saboteurs on the shore of Long Island and a second team at Ponte Vedra Beach,
Florida. One of the saboteurs went straight to the FBI to disclose the plot,
then helped track down the rest. President Franklin D. Roosevelt directed that
the saboteurs be tried by military commission, and Colonel Kenneth C. Royall was
assigned to defend the saboteurs. Royall handled the defense with vigor,
ultimately appealing to the Supreme Court in Ex parte Quirin, contrary to the
instructions of President Roosevelt, who had not envisioned such an appeals
process. Royall's efforts in court failed, though the sentences of two of the
would-be saboteurs were subsequently commuted. Considering the atmosphere in
America in the first years of the war, it is hardly surprising that Royall was
publicly assailed as the case was heard.

The position of the War Department, however, was consistent: Royall was
performing an essential function and was doing it with the zeal and dedication
that the defendants had a right to expect. Unlike the military lawyers who see
an assignment to defend a Guantanamo detainee as the death of a career, Royall
could expect to be rewarded for doing his job. He was promoted to brigadier
general, and then, as the war entered its final year, he became undersecretary
of war. Finally, in 1947, President Truman appointed Royall the nation's last
secretary of war, thereby acknowledging his distinguished career, including his
highly unpopular handling of the defense in Quirin.

Truman also saw aggressive criminal prosecutions as an important tool in
establishing the righteousness of the Allied cause in World War II, pushing
ahead with a plan to convene international tribunals at the end of the war to
fully expose the genocidal conduct of the Nazi regime. One of the most
contentious issues in making arrangements for these tribunals was whether the
defendants would be represented by counsel of their choosing and have the right
to present a vigorous defense. Justice Robert H. Jackson, on leave from the
Supreme Court to handle the arrangements and to act as chief prosecutor, carried
the day by establishing that it was vital to the Allies not only that the
tribunals do justice but that they be perceived as doing justice. This, he
correctly noted, could occur only if defense counsel were involved and given
fair space in which to conduct a defense. The trials that followed shocked the
world. But defense counsel mustered some intelligent and effective arguments and
secured acquittals in some cases and mild sentences in others. The trials would
have a powerful impact in Germany, serving as a sort of exorcism. In the world
that emerged from this conflict, the three defeated Axis powers became trusted
allies of the United States. There is no doubt that the broad recognition of the
quality of the justice dispensed at Nuremberg played an important role in that
process. 6

{ FN6 - It is interesting that the Nuremberg process was criticized by 'Mr.
Republican,' Senator Robert Taft; he suggested that the punishments meted out to
the Germans had been too severe and that the prosecutors had reached too deeply
in the cases they brought. }

~ ~ ~

The lawfare doctrine introduced by the Bush Administration violates this
tradition. It has no antecedent in American practice, and in the end it is
possible to find a precedent only if we look outside the United States to German
conservative political and jurisprudential thinking between the world wars. The
most important German legal theorist of the period between the wars was Carl
Schmitt. A conservative who longed for the restoration of the authoritarian
style of late Wilhelmine Germany, Schmitt was a convinced enemy of the liberal
democratic principles embodied in the Weimar Constitution that was adopted after
the close of World War I. For Schmitt, the notion of dispassionate and
independent administration of justice was a dangerous liberal illusion. He
sought to restructure the legal profession -- ensuring that judges were not
independent but essentially extensions of the executive, that prosecutors were
fully politically subordinated, and that defense counsel were, in general,
silenced. In the years that followed, Schmitt's ideas were put into practice,
and a large number of the most prominent members of Weimar Germany's defense bar
went into exile, many of them moving to the United States and Britain.

Carl Schmitt also laid the foundations for a new attitude toward warfare and the
role of law in the conduct of war. In his early masterwork, The Concept of the
Political (1927), Schmitt derided the weakness of liberalism and its efforts at
consensus building and instead embraced the legitimacy of a process of extreme
demonization of political adversaries. Guaranteeing legal rights to an enemy was
thus senseless and counterproductive. In its place, Schmitt advanced the notion
of "total war" ("Total Enemy, Total War, Total State," 1937), suggesting that
the neatly delineated warfare of prior ages, in which uniformed, professional
armies met on a field of war, was in decline in favor of a new kind of all-
encompassing warfare. Schmitt ridiculed the law of armed conflict, saying it
reflected ideological principles rooted in nineteenth-century English
liberalism. At the same time, he turned to the legal concept of piracy as a
basis for treating adversaries as persons completely beyond the help of law and
the courts, free to be dealt with just as the executive pleased without being
bothered by lawyers ("The Concept of Piracy," 1937).

Schmitt's thinking and analysis -- the weakness of liberalism, the utility of
"law-free" zones, the demonization of adversaries, the subordination of justice
to politics -- align almost perfectly with the Bush Administration's concept of
lawfare, and with many other legal tactics the administration has adopted in the
war on terror and elsewhere. 7

{ FN7 - The current scandal surrounding the cashiering of a dozen or more U.S.
attorneys orchestrated by assistants of [AG Alberto] Gonzales in consultation
with Karl Rove and his staff also reflects a Schmittian program. In 1933-35,
Schmitt laid out a plan for consolidation of control of the executive over the
administration of justice, a process described by Justice Minister Franz Gürtner
as Gleichschaltung, or "synchronization." A central feature of this plan was the
close political subordination of prosecutors to the executive. }

~ ~ ~

In twenty-five years of work as a human-rights monitor, I have closely observed
totalitarian and proto-totalitarian regimes around the world -- from the former
Soviet Union and its offspring to China, Cuba, Liberia, and Zimbabwe. One of the
hallmarks of tyrannical regimes, of whatever political flavor, is their intense
dislike of defense lawyers in general, and in particular defense lawyers who do
their work effectively and professionally. For a totalitarian regime, the idea
of blind justice is laughable. The criminal justice system exists to capture and
brand criminals, of course, but it is also understood as an essential instrument
of political repression. Tyrannical regimes use the law to destroy the
reputation of enemies of the state and to punish them.88. The single most vivid
demonstration of this tendency is found in the show trials conducted during the
Great Purge of the 1930s under Joseph Stalin and his legal choreographer, Andrei
Vishinsky. The Vishinsky show trials served to define Soviet legal culture for
decades. As an experienced defense attorney explained to me in Uzbekistan
shortly after the collapse of the Soviet Union: "I always had a simple
understanding of my role. It was to convince my client to plead guilty and throw
himself on the mercy of the court. Only by this path could he ever really hope
to achieve a milder sentence."

Obviously, our predicament is not yet so dire as that of Weimar Germany. Yet the
parallels are frightening. The Bush Administration's reach is long, and its
Schmittian concept of lawfare represents an all-out assault on the rule of law.

Clearly the habeas lawyers coming ashore at Guantanamo -- men and women in
uniform, volunteers from the nation's most august law firms -- are not in league
with Osama bin Laden to destroy America. They are only insisting on adherence to
America's oldest legal traditions, to our Constitution and its vision, and to
the law of nations that nurtured and permitted the emergence of our republic.
Ultimately, the danger we face in a culture built on precedent is that the
changes wrought by George W. Bush will become entrenched and will apply to an
ever-broader array of presidential enemies. If so, it would prove Carl Schmitt's
most famous saying: "Sovereign is he who controls the exception." By providing
an exception to the application of the rule of law, our nation may have
unleashed a radical new constitutional order.

*


New York Times --

June 26, 2007

THE GUANTANAMO I KNOW

By COL Morris D. Davis USAF

http://www.nytimes.com/2007/06/26/opinion/26davis.html

Lindsey Graham, a Republican senator from South Carolina, is right: "The image
of Guantanamo Bay and the reality of Guantanamo Bay are completely different."
It is disappointing that so many embrace a contrived image. Reality for
Guantanamo Bay is the daily professionalism of its staff, the humanity of its
detention centers and the fair and transparent nature of the military
commissions charged with trying war criminals. It is a reality that has been all
but ignored or forgotten.

The makeshift detention center known as Camp X-Ray closed in early 2002 after
just four months of use. Now it is overgrown with weeds and serves as home to
iguanas. Yet last week ABC News published a photo online of Camp X-Ray as if it
were in use, five years after its closing.

Today, most of the detainees are housed in new buildings modeled after civilian
prisons in Indiana and Michigan. Detainees receive three culturally appropriate
meals a day. Each has a copy of the Koran. Guards maintain respectful silence
during Islam's five daily prayer periods, and medical care is provided by the
same practitioners who treat American service members. Detainees are offered at
least two hours of outdoor recreation each day, double that allowed inmates,
including convicted terrorists, at the "supermax" federal penitentiary in
Florence, Colo.

Standards at Guantanamo rival or exceed those at similar institutions in the
United States and abroad. After an inspection by the Organization for Security
and Cooperation in Europe in March 2006, a Belgian police official said, "At the
level of detention facilities, it is a model prison, where people are better
treated than in Belgian prisons."

Critics liken Guantanamo Bay to Soviet gulags, but reality does not match their
hyperbole. The supporters of David Hicks, the detainee popularly known as the
"Australian Taliban," asserted that Mr. Hicks was mistreated and wasting away.
But at his March trial, where he pleaded guilty to providing material support to
a terrorist organization, he and his defense team stipulated he was treated
properly. Mr. Hicks even thanked service members, and as one Australian
newspaper columnist noted, he appeared in court "looking fat, healthy and
tanned, and cracking jokes."

Some imply that if a defendant does not get a trial that looks like Martha
Stewart's and ends like O. J. Simpson's, then military commissions are flawed.
They are mistaken. The Constitution does not extend to alien unlawful enemy
combatants. They are entitled to protections under Common Article 3 of the
Geneva Conventions, which ensures they are afforded "all the judicial guarantees
which are recognized as indispensable by civilized peoples."

Justice John Paul Stevens, in the Hamdan decision that rejected an earlier plan
for military commissions, observed that Article 75 of the Additional Protocol to
the Geneva Conventions defines the judicial guarantees recognized as
indispensable. A comparison of Article 75 and the Military Commissions Act of
2006 shows military commissions provide the fundamental guarantees.

Each accused receives a copy of the charges in his native language; outside
influence on witnesses and trial participants is prohibited; the accused may
challenge members of the commission; an accused may represent himself or have
assistance of counsel; he is presumed innocent until guilt is established beyond
a reasonable doubt; he is entitled to assistance to secure evidence on his
behalf; he is not required to incriminate himself at trial and his silence is
not held against him; he may not be tried a second time for the same offense;
and he is entitled to the assistance of counsel through four stages of post-
trial appellate review ending at the United States Supreme Court.

One myth is that the accused can be excluded from his trial and convicted on
secret evidence. The administrative boards that determine if a detainee is an
enemy combatant and whether he is a continuing threat may consider classified
information in closed hearings outside the presence of the detainee. But
military commissions may not. The act states, "The accused shall be permitted
... to examine and respond to evidence admitted against him on the issue of
guilt or innocence and for sentencing." Unless the accused chooses to skip his
trial or is removed for disruptive behavior, he has the right to be present and
to confront all of the evidence.

Many critics disapprove of the potential admissibility of evidence obtained by
coercion and hearsay. Any statement by a person whose freedom is restrained by
someone in a position of authority can be viewed as the product of some degree
of coercion. Deciding how far is too far is the challenge. I make the final
decision on the evidence the prosecution will introduce. The defense may
challenge this evidence and the military judge decides whether it is admitted.
If it is admitted, both sides can argue how much weight, if any, the evidence
deserves. If a conviction results, the accused has the assistance of counsel in
four stages of post-trial appellate review. These are clearly robust safeguards.

The Military Commissions Act says hearsay is admissible unless it is challenged.
The party raising the challenge must persuade the military judge that the
probative value of the evidence is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the commission, among
other reasons. While this standard permits admission of some evidence that would
not be admissible in federal courts, the rights afforded Americans are not the
benchmark for assessing rights afforded enemy combatants in military tribunals.

There is no ban on hearsay among the indispensable rights listed in the Geneva
Conventions. Nor is there a ban on hearsay for the United Nations-sanctioned war
crimes tribunals, including the International Criminal Court, the International
Criminal Tribunals for the Former Yugoslavia and Rwanda, and the Special Court
for Sierra Leone. The Nuremberg trials also did not limit hearsay evidence.
Simply stated, a ban on hearsay is not an internationally recognized judicial
guarantee.

Guantanamo Bay is a clean, safe and humane place for enemy combatants, and the
Military Commissions Act provides a fair process to adjudicate the guilt or
innocence of those alleged to have committed crimes. Even the most vocal critics
say they do not want to set terrorists free, but they scorn Guantanamo Bay and
military commissions and demand alternatives. The facts show the current
alternative is worth keeping.

[ Morris D. Davis, a colonel in the Air Force, is the chief prosecutor in the
Defense Department's Office of Military Commissions. ]

*


Washington Post --

June 23-27, 2007

ANGLER: THE CHENEY VICE-PRESIDENCY
By Barton Gellman and Jo Becker

http://blog.washingtonpost.com/cheney/


* PART 1: 'A DIFFERENT UNDERSTANDING WITH THE PRESIDENT'

http://blog.washingtonpost.com/cheney/chapters/chapter_1/

Just past the Oval Office, in the private dining room overlooking the South
Lawn, Vice President Cheney joined President Bush at a round parquet table they
shared once a week. Cheney brought a four-page text, written in strict secrecy
by his lawyer. He carried it back out with him after lunch.

In less than an hour, the document traversed a West Wing circuit that gave its
words the power of command. It changed hands four times, according to witnesses,
with emphatic instructions to bypass staff review. When it returned to the Oval
Office, in a blue portfolio embossed with the presidential seal, Bush pulled a
felt-tip pen from his pocket and signed without sitting down. Almost no one else
had seen the text.

Cheney's proposal had become a military order from the commander in chief.
Foreign terrorism suspects held by the United States were stripped of access to
any court -- civilian or military, domestic or foreign. They could be confined
indefinitely without charges and would be tried, if at all, in closed "military
commissions."

"What the hell just happened?" Secretary of State Colin L. Powell demanded, a
witness said, when CNN announced the order that evening, Nov. 13, 2001. National
security adviser Condoleezza Rice, incensed, sent an aide to find out. Even
witnesses to the Oval Office signing said they did not know the vice president
had played any part.

The episode was a defining moment in Cheney's tenure as the 46th vice president
of the United States, a post the Constitution left all but devoid of formal
authority. "Angler," as the Secret Service code-named him, has approached the
levers of power obliquely, skirting orderly lines of debate he once enforced as
chief of staff to President Gerald R. Ford. He has battled a bureaucracy he saw
as hostile, using intimate knowledge of its terrain. He has empowered aides to
fight above their rank, taking on roles reserved in other times for a White
House counsel or national security adviser. And he has found a ready patron in
George W. Bush for edge-of-the-envelope views on executive supremacy that
previous presidents did not assert.

Over the past six years, Cheney has shaped his times as no vice president has
before. This article begins a four-part series that explores his methods and
impact, drawing on interviews with more than 200 men and women who worked for,
with and in opposition to Cheney's office. Many of those interviewed recounted
events that have not been made public until now, sharing notes, 8 e-mails,
personal calendars and other records of their interaction with Cheney and his
senior staff. The vice president declined to be interviewed.

Two articles, today and tomorrow, recount Cheney's campaign to magnify
presidential war-making authority, arguably his most important legacy. Articles
to follow will describe a span of influence that extends far beyond his well-
known interests in energy and national defense.

In roles that have gone largely undetected, Cheney has served as gatekeeper for
Supreme Court nominees, referee of Cabinet turf disputes, arbiter of budget
appeals, editor of tax proposals and regulator in chief of water flows in his
native West. On some subjects, officials said, he has displayed a strong
pragmatic streak. On others he has served as enforcer of ideological principle,
come what may.

Cheney is not, by nearly every inside account, the shadow president of popular
lore. Bush has set his own course, not always in directions Cheney preferred.
The president seized the helm when his No. 2 steered toward trouble, as Bush
did, in time, on military commissions. Their one-on-one relationship is opaque,
a vital unknown in assessing Cheney's impact on events. The two men speak of it
seldom, if ever, with others. But officials who see them together often, not all
of them admirers of the vice president, detect a strong sense of mutual
confidence that Cheney is serving Bush's aims .

The vice president's reputation and, some say, his influence, have suffered in
the past year and a half. Cheney lost his closest aide, I. Lewis "Scooter"
Libby, to a perjury conviction, and his onetime mentor, Donald H. Rumsfeld, in a
Cabinet purge. A shooting accident in Texas, and increasing gaps between his
rhetoric and events in Iraq, have exposed him to ridicule and approval ratings
in the teens. Cheney expresses indifference, in public and private, to any
verdict but history's, and those close to him say he means it.

Waxing or waning, Cheney holds his purchase on an unrivaled portfolio across the
executive branch. Bush works most naturally, close observers said, at the level
of broad objectives, broadly declared. Cheney, they said, inhabits an
operational world in which means are matched with ends and some of the most
important choices are made. When particulars rise to presidential notice, Cheney
often steers the preparation of options and sits with Bush, in side-by-side wing
chairs, as he is briefed.

Before the president casts the only vote that counts, the final words of counsel
nearly always come from Cheney.


'THE GO-TO GUY ON THE HILL'

In his Park Avenue corner suite at Cerberus Global Investments, Dan Quayle
recalled the moment he learned how much his old job had changed. Cheney had just
taken the oath of office, and Quayle paid a visit to offer advice from one vice
president to another.

"I said, 'Dick, you know, you're going to be doing a lot of this international
traveling, you're going to be doing all this political fundraising . . . you'll
be going to the funerals,' " Quayle said in an interview earlier this year. "I
mean, this is what vice presidents do. I said, 'We've all done it.' "

Cheney "got that little smile," Quayle said, and replied, "I have a different
understanding with the president."

"He had the understanding with President Bush that he would be -- I'm just going
to use the word 'surrogate chief of staff,' " said Quayle, whose membership on
the Defense Policy Board gave him regular occasion to see Cheney privately over
the following four years.

Cheney, 66, grew up in Lincoln, Neb., and Casper, Wyo., acquiring a Westerner's
passion for hunting and fishing but not for the Democratic politics of his
parents. He wed his high school sweetheart, Lynne Vincent, beginning what
friends describe as a lifelong love affair. Cheney flunked out of Yale but
became a highly regarded PhD candidate in political science at the University of
Wyoming -- avoiding the Vietnam War draft with five deferments along the way --
before abandoning the doctoral program and heading to Washington as a junior
congressional aide.

He went on to build an unmatched Washington resume as White House chief of
staff, House minority whip and secretary of defense. An aversion to political
glad-handing and a series of chronic health problems, including four heart
attacks, helped derail his presidential ambitions and shifted his focus to a
lucrative stint as chairman of Halliburton, an oil services company. His
controlled demeanor, ranging mainly from a tight-lipped gaze to the trademark
half-smile, conceals what associates call an impish sense of humor and unusual
kindness to subordinates.

Cheney's influence in the Bush administration is widely presumed but hard to
illustrate. Many of the men and women who know him best said an explanation
begins with the way he defined his role.

As the Bush administration prepared to take office, "I remember at the outset,
during the transition, thinking, 'What do vice presidents do?' " said White
House Chief of Staff Joshua B. Bolten, who was then the Bush team's policy
director. Bolten joined Libby, his counterpart in Cheney's office, to compile a
list of "portfolios we thought might be appropriate." Their models, Bolten said,
were Quayle's Council on Competitiveness and Al Gore's National Partnership for
Reinventing Government.

"The vice president didn't particularly warm to that," Bolten recalled dryly.

Cheney preferred, and Bush approved, a mandate that gave him access to "every
table and every meeting," making his voice heard in "whatever area the vice
president feels he wants to be active in," Bolten said.

Cheney has used that mandate with singular force of will. Other recent vice
presidents have enjoyed a standing invitation to join the president at "policy
time." But Cheney's interventions have also come in the president's absence, at
Cabinet and sub-Cabinet levels where his predecessors were seldom seen. He found
pressure points and changed the course of events by "reaching down," a phrase
that recurs often in interviews with current and former aides.

Mary Matalin, who was counselor to the vice president until 2003 and remains an
informal adviser, described Cheney's portfolio as "the iron issues" -- a list
that, as she defined it, comprises most of the core concerns of every recent
president. Cheney took on "the economic issues, the security issues . . . the
energy issues" -- and the White House legislative agenda, Matalin said, because
he became "the go-to guy on the Hill." Other close aides noted, as well, a major
role for Cheney in nominations and appointments.

As constitutional understudy, with no direct authority in the executive branch,
Cheney has often worked through surrogates. Many of them owed their jobs to him.

While lawyers fought over the 2000 Florida ballot recount, with the presidential
election in the balance, Cheney was already populating a prospective Bush
administration. Brian V. McCormack, then his 26-year-old personal aide, said
Cheney worked three cellphones from the round kitchen table of his townhouse in
McLean, "making up lists" of nominees beginning with the secretaries of state,
defense and the Treasury.

"His focus was that we need to prepare for the event that [the recount] comes
out in our favor, because we will have a limited time frame," McCormack
recalled.

Close allies found positions as chief and deputy chief of the Office of
Management and Budget, deputy national security adviser, undersecretary of
state, and assistant or deputy assistant secretary in numerous Cabinet
departments. Other loyalists -- including McCormack, who progressed to
assignments in Iraq's occupation authority and then on Bush's staff -- turned up
in less senior, but still significant, posts.

In the years that followed, crossing Cheney would cost some of the same
officials their jobs. David Gribben, a friend from graduate school who became
the vice president's chief of legislative affairs, said Cheney believes in the
"educational use of power." Firing a disloyal or poorly performing official, he
said, sometimes "sends a signal crisply." Cheney believes he is "using his
authority to serve the American people, and he's obviously not afraid to be a
rough opponent," Gribben said.

A prodigious appetite for work, officials said, prepares Cheney to shape the
president's conversations with others. His Secret Service detail sometimes
reports that he is awake and reading at 4:30 a.m. He receives a private
intelligence briefing between 6:30 and 7 a.m., often identifying issues to be
called to Bush's attention, and then sits in on the president's daily briefing
an hour later. Aides said that Cheney insists on joining Bush by secure video
link, no matter how many time zones divide them.

Stealth is among Cheney's most effective tools. Man-size Mosler safes, used
elsewhere in government for classified secrets, store the workaday business of
the office of the vice president. Even talking points for reporters are
sometimes stamped "Treated As: Top Secret/SCI." Experts in and out of government
said Cheney's office appears to have invented that designation, which alludes to
"sensitive compartmented information," the most closely guarded category of
government secrets. By adding the words "treated as," they said, Cheney seeks to
protect unclassified work as though its disclosure would cause "exceptionally
grave damage to national security."

Across the board, the vice president's office goes to unusual lengths to avoid
transparency. Cheney declines to disclose the names or even the size of his
staff, generally releases no public calendar and ordered the Secret Service to
destroy his visitor logs. His general counsel has asserted that "the vice
presidency is a unique office that is neither a part of the executive branch nor
a part of the legislative branch," and is therefore exempt from rules governing
either. Cheney is refusing to observe an executive order on the handling of
national security secrets, and he proposed to abolish a federal office that
insisted on auditing his compliance.

In the usual business of interagency consultation, proposals and information
flow into the vice president's office from around the government, but high-
ranking White House officials said in inter8views that almost nothing flows out.
Close aides to Cheney describe a similar one-way valve inside the office, with
information flowing up to the vice president but little or no reaction flowing
down.

All those methods would be on clear display when the "war on terror" began for
Cheney after eight months in office.


A 'TRIUMVIRATE' AND ITS LEADER

In a bunker beneath the East Wing of the White House, Cheney locked his eyes on
CNN, chin resting on interlaced fingers. He was about to watch, in real time, as
thousands were killed on Sept. 11, 2001.

Previous accounts have described Cheney's adrenaline-charged evacuation to the
Presidential Emergency Operations Center that morning, a Secret Service agent on
each arm. They have not detailed his reaction, 22 minutes later, when the south
tower of the World Trade Center collapsed.

"There was a groan in the room that I won't forget, ever," one witness said. "It
seemed like one groan from everyone" -- among them Rice; her deputy, Stephen J.
Hadley; economic adviser Lawrence B. Lindsey; counselor Matalin; Cheney's chief
of staff, Libby; and the vice president's wife.

Cheney made no sound. "I remember turning my head and looking at the vice
president, and his expression never changed," said the witness, reading from a
notebook of observations written that day. Cheney closed his eyes against the
image for one long, slow blink.

Three people who were present, not all of them admirers, said they saw no sign
then or later of the profound psychological transformation that has often been
imputed to Cheney. What they saw, they said, was extraordinary self-containment
and a rapid shift of focus to the machinery of power. While others assessed
casualties and the work of "first responders," Cheney began planning for a
conflict that would call upon lawyers as often as soldiers and spies.

More than any one man in the months to come, Cheney freed Bush to fight the "war
on terror" as he saw fit, animated by their shared belief that al-Qaeda's
destruction would require what the vice president called "robust interrogation"
to extract intelligence from captured suspects. With a small coterie of allies,
Cheney supplied the rationale and political muscle to drive far-reaching legal
changes through the White House, the Justice Department and the Pentagon.

The way he did it -- adhering steadfastly to principle, freezing out dissent and
discounting the risks of blow-back -- turned tactical victory into strategic
defeat. By late last year, the Supreme Court had dealt three consecutive rebuffs
to his claim of nearly unchecked authority for the commander in chief, setting
precedents that will bind Bush's successors.

Yet even as Bush was forced into public retreats, an examination of subsequent
events suggests that Cheney has quietly held his ground. Most of his operational
agenda, in practice if not in principle, remains in place.

In expanding presidential power, Cheney's foremost agent was David S. Addington,
his formidable general counsel and legal adviser of many years. On the morning
of Sept. 11, Addington was evacuated from the Eisenhower Executive Office
Building next to the White House and began to make his way toward his Virginia
home on foot. As he neared the Arlington Memorial Bridge, someone in the White
House reached him with a message: Turn around. The vice president needs you.

Down in the bunker, according to a colleague with firsthand knowledge, Cheney
and Addington began contemplating the founding question of the legal revolution
to come: What extraordinary powers will the president need for his response?

Before the day ended, Cheney's lawyer joined forces with Timothy E. Flanigan,
the deputy White House counsel, linked by secure video from the Situation Room.
Flanigan patched in John C. Yoo at the Justice Department's fourth-floor command
center. White House counsel Alberto R. Gonzales joined later.

Thus formed the core legal team that Cheney oversaw, directly and indirectly,
after the terrorist attacks.

Yoo, a Berkeley professor-turned-deputy chief of the Office of Legal Counsel,
became the theorist of an insurrection against legal limits on the commander in
chief. Addington, backed by Flanigan, found levers of government policy and
wrote the words that moved them.

"Addington, Flanigan and Gonzales were really a triumvirate," recalled Bradford
A. Berenson, then an associate White House counsel. Yoo, he said, "was a
supporting player."

Gonzales, a former Texas judge, had the seniority and the relationship with
Bush. But Addington -- a man of imposing demeanor, intellect and experience --
dominated the group. Gonzales "was not a law-of-war expert and didn't have very
developed views," Yoo recalled, echoing blunter observations by the Texan's
White House colleagues.


CHENEY 'HAS THE PORTFOLIO'

Flanigan, with advice from Yoo, drafted the authorization for use of military
force that Congress approved on Sept. 18. Yoo said they used the broadest
possible language because "this war was so different, you can't predict what
might come up."

In fact, the triumvirate knew very well what would come next: the interception
-- without a warrant -- of communications to and from the United States.
Forbidden by federal law since 1978, the surveillance would soon be justified,
in secret, as "incident to" the authority Congress had just granted. Yoo was
already working on that memo, completing it on Sept. 25.

It was an extraordinary step, bypassing Congress and the courts, and its authors
kept it secret from officials who were likely to object. Among the excluded was
John B. Bellinger III, a man for whom Cheney's attorney had "open contempt,"
according to a senior government lawyer who saw them often. The eavesdropping
program was directly within Bellinger's purview as ranking national security
lawyer in the White House, reporting to Rice. Addington had no line
responsibility. But he had Cheney's proxy, and more than once he accused
Bellinger, to his face, of selling out presidential authority for good "public
relations" or bureaucratic consensus.

Addington, who seldom speaks to reporters, declined to be interviewed.

"David is extremely principled and dedicated to doing what he feels is right,
and can be a very tough customer when he perceives others as obstacles to
achieving those goals," Berenson said. "But it's not personal in the sense that
'I don't like you.' It's all about the underlying principle."

Bryan Cunningham, Bellinger's former deputy, said: "Bellinger didn't know. That
was a mistake." Cunningham said Rice's lawyer would have recommended vetting the
surveillance program with the secret court that governs intelligence intercepts
-- a step the Bush administration was forced to take five years later.

On Oct. 25, 2001, the chairmen and ranking minority members of the intelligence
committees were summoned to the White House for their first briefing on the
eavesdropping and were told that it was one of the government's most closely
compartmented secrets. Under Presidents George H.W. Bush or Bill Clinton,
officials said, a conversation of that gravity would involve the commander in
chief. But when the four lawmakers arrived in the West Wing lobby, an aide led
them through the door on the right, away from the Oval Office.

"We met in the vice president's office," recalled former senator Bob Graham (D-
Fla.). Bush had told Graham already, when the senator assumed the intelligence
panel chairmanship, that "the vice president should be your point of contact in
the White House." Cheney, the president said, "has the portfolio for
intelligence activities."


'OH, BY THE WAY'

By late October, the vice president and his allies were losing patience with the
Bush administration's review of a critical question facing U.S. forces in
Afghanistan and elsewhere: What should be done with captured fighters from al-
Qaeda and the Taliban? Federal trials? Courts-martial? Military commissions like
the ones used for Nazis under President Franklin D. Roosevelt?

Cheney's staff did not reply to invitations to join the interagency working
group led by Pierre Prosper, ambassador at large for war crimes. But Addington,
the vice president's lawyer, knew what his client wanted, Berenson said. And
Prosper's group was still debating details. "Once you start diving into it, and
history has proven us right, these are complicated questions," one regular
participant said.

The vice president saw it differently. "The interagency was just constipated,"
said one Cheney ally, who spoke on condition of anonymity.

Flanigan recalled a conversation with Addington at the time in which the two
discussed the salutary effect of showing bureaucrats that the president could
act "without their blessing -- and without the interminable process that goes
along with getting that blessing."

Throughout his long government career, Cheney had counseled against that kind of
policy surprise, insisting that unvetted decisions lead presidents to costly
mistakes.

When James A. Baker III was tapped to be White House chief of staff in 1980, he
interviewed most of his living predecessors. Advice from Cheney filled four
pages of a yellow legal pad. Only once, to signify Cheney's greatest emphasis,
did Baker write in all capital letters:

      BE AN HONEST BROKER

      DON'T USE THE PROCESS TO IMPOSE YOUR POLICY VIEWS ON PRES.

Cheney told Baker, according to the notes, that an "orderly paper flow is way
you protect the Pres.," ensuring that any proposal has been tested against other
views. Cheney added:

"It's not in anyone's interest to get an 'oh by the way decision' -- & all have
to understand that. Can hurt the Pres. Bring it up at a Cab. mtg. Make sure
everyone understands this."

In 1999, not long before he became Bush's running mate, Cheney warned again
about " 'oh, by the way' decisions" at a conference of White House historians.
According to a transcript, he added: "The process of moving paper in and out of
the Oval Office, who gets involved in the meetings, who does the president
listen to, who gets a chance to talk to him before he makes a decision, is
absolutely critical. It has to be managed in such a way that it has integrity."

Two years later, at his Nov. 13 lunch with Bush, Cheney brought the president
the ultimate "oh, by the way" choice -- a far-reaching military order that most
of Bush's top advisers had not seen.

According to Flanigan, Addington was not the first to think of military
commissions but was the "best scholar of the FDR-era order" among their small
group of trusted allies. "He gained a preeminent role by virtue of his sheer
ability to turn out a draft of something in quick time."

That draft, said one of the few lawyers apprised of it, "was very closely held
because it was coming right from the top."


'IN SUPPORT OF THE PRESIDENT'

To pave the way for the military commissions, Yoo wrote an opinion on Nov. 6,
2001, declaring that Bush did not need approval from Congress or federal courts.
Yoo said in an interview that he saw no need to inform the State Department,
which hosts the archives of the Geneva Conventions and the government's leading
experts on the law of war. "The issue we dealt with was: Can the president do it
constitutionally?" Yoo said. "State -- they wouldn't have views on that."

Attorney General John D. Ashcroft was astonished to learn that the draft gave
the Justice Department no role in choosing which alleged terrorists would be
tried in military commissions. Over Veterans Day weekend, on Nov. 10, he took
his objections to the White House.

The attorney general found Cheney, not Bush, at the broad conference table in
the Roosevelt Room. According to participants, Ashcroft said that he was the
president's senior law enforcement officer, supervised the FBI and oversaw
terrorism prosecutions nationwide. The Justice Department, he said, had to have
a voice in the tribunal process. He was enraged to discover that Yoo, his
subordinate, had recommended otherwise -- as part of a strategy to deny
jurisdiction to U.S. courts.

Raising his voice, participants said, Ashcroft talked over Addington and brushed
aside interjections from Cheney. "The thing I remember about it is how rude,
there's no other word for it, the attorney general was to the vice president,"
said one of those in the room. Asked recently about the confrontation, Ashcroft
replied curtly: "I'm just not prepared to comment on that."

According to Yoo and three other officials, Ashcroft did not persuade Cheney and
got no audience with Bush. Bolten, in an October 2006 interview after becoming
Bush's chief of staff, did not deny that account. He signaled an intention to
operate differently in the second term.

"In my six months' experience it would not fall to the vice president to referee
that kind of thing," Bolten added. "If it is a presidential decision, the
president will make it. . . . I think the vice president appreciates that --
that his role is in support of the president, and not as a second-tier
substitute."

Three days after the Ashcroft meeting, Cheney brought the order for military
commissions to Bush. No one told Bellinger, Rice or Powell, who continued to
think that Prosper's working group was at the helm.

After leaving Bush's private dining room, the vice president took no chances on
a last-minute objection. He sent the order on a swift path to execution that
left no sign of his role. After Addington and Flanigan, the text passed to
Berenson, the associate White House counsel. Cheney's link to the document broke
there: Berenson was not told of its provenance.

Berenson rushed the order to deputy staff secretary Stuart W. Bowen Jr., bearing
instructions to prepare it for signature immediately -- without advance
distribution to the president's top advisers. Bowen objected, he told colleagues
later, saying he had handled thousands of presidential documents without ever
bypassing strict procedures of coordination and review. He relented, one White
House official said, only after "rapid, urgent persuasion" that Bush was
standing by to sign and that the order was too sensitive to delay.

In an interview, Berenson said it was his understanding that "someone had
briefed" the president "and gone over it" already. He added: "I don't know who
that was."


'IT'LL LEAK IN 10 MINUTES'

On Nov. 14, 2001, the day after Bush signed the commissions order, Cheney took
the next big step. He told the U.S. Chamber of Commerce that terrorists do not
"deserve to be treated as prisoners of war."

The president had not yet made that decision. Ten weeks passed, and the Bush
administration fought one of its fiercest internal brawls, before Bush ratified
the policy that Cheney had declared: The Geneva Conventions would not apply to
al-Qaeda or Taliban fighters captured on the battlefield

Since 1949, Geneva had accorded protections to civilians and combatants in a war
zone. Those protections varied with status, but the prevailing U.S. and
international view was that anyone under military control -- even an alleged war
criminal -- has some rights. Rumsfeld, elaborating on the position Cheney staked
out, cast that interpretation aside. All captured fighters in Afghanistan, he
said at a news briefing, are "unlawful combatants" who "do not have any rights"
under Geneva.

At the White House, Bellinger sent Rice a blunt -- and, he thought, private --
legal warning. The Cheney-Rumsfeld position would place the president
indisputably in breach of international law and would undermine cooperation from
allied governments. Faxes had been pouring in at the State Department since the
order for military commissions was signed, with even British authorities warning
that they could not hand over suspects if the U.S. government withdrew from
accepted legal norms.

One lawyer in his office said that Bellinger was chagrined to learn, indirectly,
that Cheney had read the confidential memo and "was concerned" about his advice.
Thus Bellinger discovered an unannounced standing order: Documents prepared for
the national security adviser, another White House official said, were "routed
outside the formal process" to Cheney, too. The reverse did not apply.

Powell asked for a meeting with Bush. The same day, Jan. 25, 2002, Cheney's
office struck a preemptive blow. It appeared to come from Gonzales, a longtime
Bush confidant whom the president nicknamed "Fredo." Hours after Powell made his
request, Gonzales signed his name to a memo that anticipated and undermined the
State Department's talking points. The true author has long been a subject of
speculation, for reasons including its unorthodox format and a subtly mocking
tone that is not a Gonzales hallmark.

A White House lawyer with direct knowledge said Cheney's lawyer, Addington,
wrote the memo. Flanigan passed it to Gonzales, and Gonzales sent it as "my
judgment" to Bush. If Bush consulted Cheney after that, the vice president
became a sounding board for advice he originated himself.

Addington, under Gonzales's name, appealed to the president by quoting Bush's
own declaration that "the war against terrorism is a new kind of war." Addington
described the Geneva Conventions as "quaint," casting Powell as a defender of
"obsolete" rules devised for another time. If Bush followed Powell's lead,
Addington suggested, U.S. forces would be obliged to provide athletic gear and
commissary privileges to captured terrorists.

According to David Bowker, a State Department lawyer, Powell did not in fact
argue that al-Qaeda and Taliban forces deserved the privileges of prisoners of
war. Powell said Geneva rules entitled each detainee to a status review, but he
predicted that few, if any, would qualify as POWs, because they did not wear
uniforms on the battlefield or obey a lawful chain of command. "We said, 'If you
give legal process and you follow the rules, you're going to reach substantially
the same result and the courts will defer to you,' " Bowker said.

Late that afternoon, as the "Gonzales memo" began to circulate around the
government, Addington turned to Flanigan.

"It'll leak in 10 minutes," he predicted, according to a witness.

The next morning's Washington Times carried a front-page article in which
administration sources accused Powell of "bowing to pressure from the political
left" and advocating that terrorists be given "all sorts of amenities, including
exercise rooms and canteens."

Though the report portrayed Powell as soft on enemies, two senior government
lawyers said, Addington blamed the State Department for leaking it. The breach
of secrecy, Addington said, proved that William H. Taft IV, Powell's legal
adviser, could not be trusted. Taft joined Bellinger on a growing -- and
explicit -- blacklist, excluded from consultation. "I was off the team," Taft
said in an interview. The vice president's lawyer had marked him an enemy, but
Taft did not know he was at war.

"Which, of course, is why you're ripe for the taking, isn't it?" he added,
laughing briefly.

[ Staff researcher Julie Tate contributed to this report. ]

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* PART 2: PUSHING THE ENVELOPE ON PRESIDENTIAL POWER

http://blog.washingtonpost.com/cheney/
chapters/pushing_the_envelope_on_presi/index.html

Shortly after the first accused terrorists reached the U.S. naval prison at
Guantanamo Bay, Cuba, on Jan. 11, 2002, a delegation from CIA headquarters
arrived in the Situation Room. The agency presented a delicate problem to White
House counsel Alberto R. Gonzales, a man with next to no experience on the
subject. Vice President Cheney's lawyer, who had a great deal of experience, sat
nearby. The meeting marked "the first time that the issue of interrogations
comes up" among top-ranking White House officials, recalled John C. Yoo, who
represented the Justice Department. "The CIA guys said, 'We're going to have
some real difficulties getting actionable intelligence from detainees'" if
interrogators confined themselves to humane techniques allowed by the Geneva
Conventions.

From that moment, well before previous accounts have suggested, Cheney turned
his attention to the practical business of crushing a captive's will to resist.
The vice president's office played a central role in shattering limits on
coercion in U.S. custody, commissioning and defending legal opinions that the
Bush administration has since portrayed as the initiatives, months later, of
lower-ranking officials.

Cheney and his allies, according to more than two dozen current and former
officials, pioneered a novel distinction between forbidden "torture" and
permitted use of "cruel, inhuman or degrading" methods of questioning. They did
not originate every idea to rewrite or reinterpret the law, but fresh accounts
from participants show that they translated muscular theories, from Yoo and
others, into the operational language of government.

A backlash beginning in 2004, after reports of abuse leaked out of Iraq's Abu
Ghraib prison and Guantanamo Bay, brought what appeared to be sharp reversals in
courts and Congress -- for both Cheney's claims of executive supremacy and his
unyielding defense of what he called "robust interrogation."

But a more careful look at the results suggests that Cheney won far more than he
lost. Many of the harsh measures he championed, and some of the broadest
principles undergirding them, have survived intact but out of public view.

The vice president's unseen victories attest to traits that are often ascribed
to him but are hard to demonstrate from the public record: thoroughgoing
secrecy, persistence of focus, tactical flexibility in service of rigid aims and
close knowledge of the power map of government. On critical decisions for more
than six years, Cheney has often controlled the pivot points -- tipping the
outcome when he could, engineering stalemate when he could not and reopening
debates that rivals thought were resolved.

"Once he's taken a position, I think that's it," said James A. Baker III, who
has shared a hunting tent with Cheney more than once and worked with him under
three presidents. "He has been pretty damn good at accumulating power,
extraordinarily effective and adept at exercising power."


'NO MORE SECRET OPINIONS'

David S. Addington, Cheney's general counsel, set the new legal agenda in a
blunt memorandum shortly after the CIA delegation returned to Langley. Geneva's
"strict limits on questioning of enemy prisoners," he wrote on Jan. 25, 2002,
hobbled efforts "to quickly obtain information from captured terrorists."

No longer was the vice president focused on procedural rights, such as access to
lawyers and courts. The subject now was more elemental: How much suffering could
U.S. personnel inflict on an enemy to make him talk? Cheney's lawyer feared that
future prosecutors, with motives "difficult to predict," might bring criminal
charges against interrogators or Bush administration officials.

Geneva rules forbade not only torture but also, in equally categorical terms,
the use of "violence," "cruel treatment" or "humiliating and degrading
treatment" against a detainee "at any time and in any place whatsoever." The War
Crimes Act of 1996 made any grave breach of those restrictions a U.S. felony.
The best defense against such a charge, Addington wrote, would combine a broad
presidential direction for humane treatment, in general, with an assertion of
unrestricted authority to make exceptions.

The vice president's counsel proposed that President Bush issue a carefully
ambiguous directive. Detainees would be treated "humanely and, to the extent
appropriate and consistent with military necessity, in a manner consistent with
the principles of" the Geneva Conventions. When Bush issued his public decision
two weeks later, on Feb. 7, 2002, he adopted Addington's formula -- with all its
room for maneuver -- verbatim.

In a radio interview last fall, Cheney said, "We don't torture." What he did not
acknowledge, according to Alberto J. Mora, who served then as the Bush-appointed
Navy general counsel, was that the new legal framework was designed specifically
to leave room for cruelty. In international law, Mora said, cruelty is defined
as "the imposition of severe physical or mental pain or suffering." He added:
"Torture is an extreme version of cruelty."

How extreme? Yoo was summoned again to the White House in the early spring of
2002. This time the question was urgent. The CIA had captured Abu Zubaida, then
believed to be a top al-Qaeda operative, on March 28, 2002. Case officers wanted
to know "what the legal limits of interrogation are," Yoo said.

This previously unreported meeting sheds light on the origins of one of the Bush
administration's most controversial claims. The Justice Department delivered a
classified opinion on Aug. 1, 2002, stating that the U.S. law against torture
"prohibits only the worst forms of cruel, inhuman or degrading treatment" and
therefore permits many others. [Read the opinion] Distributed under the
signature of Assistant Attorney General Jay S. Bybee, the opinion also narrowed
the definition of "torture" to mean only suffering "equivalent in intensity" to
the pain of "organ failure ..... or even death."

When news accounts unearthed that opinion nearly two years later, the White
House repudiated its contents. Some officials described it as hypothetical,
without disclosing that the opinion was written in response to specific
questions from the CIA. Administration officials attributed authorship to Yoo, a
Berkeley law professor who had come to serve in the Office of Legal Counsel.

But the "torture memo," as it became widely known, was not Yoo's work alone. In
an interview, Yoo said that Addington, as well as Gonzales and deputy White
House counsel Timothy E. Flanigan, contributed to the analysis.

The vice president's lawyer advocated what was considered the memo's most
radical claim: that the president may authorize any interrogation method, even
if it crosses the line of torture. U.S. and treaty laws forbidding any person to
"commit torture," that passage stated, "do not apply" to the commander in chief,
because Congress "may no more regulate the President's ability to detain and
interrogate enemy combatants than it may regulate his ability to direct troop
movements on the battlefield."

That same day, Aug. 1, 2002, Yoo signed off on a second secret opinion, the
contents of which have never been made public. According to a source with direct
knowledge, that opinion approved as lawful a long list of specific interrogation
techniques proposed by the CIA -- including waterboarding, a form of near-
drowning that the U.S. government classified as a war crime in 1947. The opinion
drew the line against one request: threatening to bury a prisoner alive.

Yoo said for the first time in an interview that he verbally warned lawyers for
the president, Cheney and Defense Secretary Donald H. Rumsfeld that it would be
dangerous as a matter of policy to permit military interrogators to use the
harshest techniques, because the armed services, vastly larger than the CIA,
could overuse the tools or exceed the limits. "I always thought that only the
CIA should do this, but people at the White House and at DOD felt differently,"
Yoo said. The migration of those techniques from the CIA to the military, and
from Guantanamo Bay to Abu Ghraib, aroused worldwide condemnation when abuse by
U.S. troops was exposed.

On June 8, 2004, national security adviser Condoleezza Rice and Secretary of
State Colin L. Powell learned of the two-year-old torture memo for the first
time from an article in The Washington Post. According to a former White House
official with firsthand knowledge, they confronted Gonzales together in his
office.

Rice "very angrily said there would be no more secret opinions on international
and national security law," the official said, adding that she threatened to
take the matter to the president if Gonzales kept them out of the loop again.
Powell remarked admiringly, as they emerged, that Rice dressed down the
president's lawyer "in full Nurse Ratched mode," a reference to the ward chief
of a mental hospital in the 1975 film "One Flew Over the Cuckoo's Nest."

Neither of them took their objections to Cheney, the official said, a much more
dangerous course.


'HIS CLIENT, THE VICE PRESIDENT'

In the summer and fall of 2002, some of the Bush administration's leading
lawyers began to warn that Cheney and his Pentagon allies had set the government
on a path for defeat in court. As the judicial branch took up challenges to the
president's assertion of wartime power, Justice Department lawyers increasingly
found themselves defending what they believed to be losing positions -- directed
by the vice president and his staff. One of the uneasy lawyers was Solicitor
General Theodore B. Olson, a conservative stalwart whose wife, Barbara, had been
killed less than a year before when the hijacked American Airlines Flight 77
crashed into the Pentagon. Olson shared Cheney's robust view of executive
authority, but his job was to win cases. Two that particularly worried him
involved U.S. citizens -- Jose Padilla and Yaser Esam Hamdi -- who had been
declared enemy combatants and denied access to lawyers.

Federal courts, Olson argued, would not go along with that. But the CIA opposed
any outside contact, fearing relief from the isolation and dependence that
interrogators relied upon to break the will of suspected terrorists.

Flanigan said that Addington's personal views leaned more toward Olson than
against him, but that he beat back the proposal to grant detainees access to
lawyers, "because that was the position of his client, the vice president."

Decision time came in a heated meeting in Gonzales's corner office on the West
Wing's second floor, according to four officials with direct knowledge, none of
whom agreed to be quoted by name about confidential legal deliberations. Olson
was backed by associate White House counsel Bradford A. Berenson, a former law
clerk to Supreme Court Justice Anthony M. Kennedy.

Berenson told colleagues that the court's swing voter would never accept
absolute presidential discretion to declare a U.S. citizen an enemy and lock him
up without giving him an opportunity to be represented and heard. Another former
Kennedy clerk, White House lawyer Brett Kavanaugh, had made the same argument
earlier. Addington accused Berenson of surrendering executive power on a fool's
prophecy about an inscrutable court. Berenson accused Addington of "know-
nothingness."

Gonzales listened quietly as the Justice Department and his own staff lined up
against Addington. Then he decided in favor of Cheney's lawyer.

John D. Ashcroft, who was attorney general at the time, declined to discuss
details of the dispute but said the vice president's views "carried a great deal
of weight. He was the E.F. Hutton in the room. When he talked, everybody would
listen." Cheney, he said, "compelled people to think carefully about whatever he
mentioned."

When a U.S. District Court ruled several months later that Padilla had a right
to counsel, Cheney's office insisted on sending Olson's deputy, Paul Clement, on
what Justice Department lawyers called "a suicide mission": to tell Judge
Michael B. Mukasey that he had erred so grossly that he should retract his
decision. Mukasey derided the government's "pinched legalism" and added acidly
that his order was "not a suggestion or request."

Cheney's strategy fared worse in the Supreme Court, where two cases arrived for
oral argument alongside Padilla's on April 28, 2004.

For months, Olson and his Justice Department colleagues had pleaded for modest
shifts that would shore up the government's position. Hamdi, the American, had
languished in a Navy brig without a hearing or a lawyer for two and a half
years. Shafiq Rasul, a British citizen at Guantanamo Bay, had been held even
longer. Olson could make Cheney's argument that courts had no jurisdiction, but
he wanted to "show them that you at least have some system of due process in
place" to ensure against wrongful detention, according to a senior Justice
Department official who closely followed the debates.

The vice president's counsel fought and won again. He argued that any
declaration of binding rules would restrict the freedom of future presidents and
open the door to further lawsuits. On June 28, 2004, the Supreme Court ruled 8
to 1 in the Hamdi case that detainees must have a lawyer and an opportunity to
challenge their status as enemy combatants before a "neutral decision maker."
The Rasul decision, the same day, held 6 to 3 that Guantanamo Bay is not beyond
the reach of federal law.

Eleven days later, Olson stepped down as solicitor general. His deputy succeeded
him. What came next was a reminder that it does not pay to cross swords with the
vice president.

Ashcroft, with support from Gonzales, proposed a lawyer named Patrick Philbin
for deputy solicitor general. Philbin was among the authors of the post-9/11
legal revolution, devising arguments to defend Cheney's military commissions and
the denial of habeas corpus rights at Guantanamo Bay. But he had tangled with
the vice president's office now and then, objecting to the private legal channel
between Addington and Yoo and raising questions about domestic surveillance by
the National Security Agency.

Cheney's lawyer passed word that Philbin was an unsatisfactory choice. The
attorney general and White House counsel abandoned their candidate.

"OVP plays hardball," said a high-ranking former official who followed the
episode, referring to the office of the vice president. "No one would defend
Philbin."


'UNACCEPTABLE TO THE VICE PRESIDENT'S OFFICE'

Rumsfeld, Cheney's longtime friend and mentor, gathered his senior subordinates
at the Pentagon in the summer of 2005. Rumsfeld warned them to steer clear of
Senate Republicans John McCain, John W. Warner and Lindsay O. Graham, who were
drafting a bill to govern the handling of terrorism suspects.

"Rumsfeld made clear, emphatically, that the vice president had the lead on this
issue," said a former Pentagon official with direct knowledge.

Though his fingerprints were not apparent, Cheney had already staked out a
categorical position for the president. It came in a last-minute insert to a
"statement of administration policy" by the Office of Management and Budget,
where Nancy Dorn, Cheney's former chief of legislative affairs, was deputy
director. Without normal staff clearance, according to two Bush administration
officials, the vice president's lawyer added a paragraph -- just before
publication on July 21, 2005 -- to the OMB's authoritative guidance on the 2006
defense spending bill.

"The Administration strongly opposes" any amendment to "regulate the detention,
treatment or trial of terrorists captured in the war on terror," the statement
said. Before most Bush administration officials even became aware that the
subject was under White House review, Addington wrote that "the President's
senior advisers would recommend that he veto" any such bill.

Among those taken unawares was Deputy Defense Secretary Gordon R. England. More
than a year had passed since Bush expressed "deep disgust" over the abuse
photographed at Abu Ghraib, and England told aides it was past time to issue
clear rules for U.S. troops.

In late August 2005, England called a meeting of nearly three dozen Pentagon
officials, including the vice chief and top uniformed lawyer for each military
branch. Matthew Waxman, the deputy assistant secretary for detainee affairs, set
the agenda.

Waxman said that the president's broadly stated order of Feb. 7, 2002 -- which
called for humane treatment, "subject to military necessity" -- had left U.S.
forces unsure about how to behave. The Defense Department, he said, should
clarify its bedrock legal requirements with a directive incorporating the
language of Geneva's Common Article 3. That was exactly the language --
prohibiting cruel, violent, humiliating and degrading treatment -- that Cheney
had spent three years expunging from U.S. policy.

"Every vice chief came out strongly in favor, as did every JAG," or judge
advocate general, recalled Mora, who was Navy general counsel at the time.

William J. Haynes II, a close friend of Addington's who served as Rumsfeld's
general counsel, was one of two holdouts in the room. The other was Stephen A.
Cambone, Rumsfeld's undersecretary for intelligence.

Waxman, believing his opponents isolated, circulated a draft of DOD Directive
2310. Within a few days, Addington and I. Lewis "Scooter" Libby, Cheney's chief
of staff, invited Waxman for a visit.

According to Mora, Waxman returned from the meeting with the message that his
draft was "unacceptable to the vice president's office." Another defense
official, who made notes of Waxman's report, said Cheney's lawyer ridiculed the
vagueness of the Geneva ban on "outrages upon personal dignity," saying it would
leave U.S. troops timid in the face of unpredictable legal risk. When Waxman
replied that the official White House policy was far more opaque, according to
the report, Addington accused him of trying to replace the president's decision
with his own.

"The impact of that meeting is that Directive 2310 died," Mora said.


'TOTAL INDIFFERENCE TO PUBLIC OPINION'

Over the next 12 months, Congress and the Supreme Court imposed many of the
restrictions that Cheney had squelched.

"The irony with the Cheney crowd pushing the envelope on presidential power is
that the president has now ended up with lesser powers than he would have had if
they had made less extravagant, monarchical claims," said Bruce Fein, an
associate deputy attorney general under President Ronald Reagan. Flanigan, a
founding member of that crowd, said he still believes that Addington and Yoo
were right in their "application of generally accepted constitutional
principles." But he acknowledged that many battles ended badly. "The Supreme
Court," Flanigan said, "decided to change the rules." Even so, Cheney's losses
were not always as they appeared.

On Oct. 5, 2005, the Senate voted 90 to 9 in favor of McCain's Detainee
Treatment Act, which included the Geneva language. It was, by any measure, a
rebuke to Cheney. Bush signed the bill into law. "Well, I don't win all the
arguments," Cheney told the Wall Street Journal.

Yet Cheney and Addington found a roundabout path to the exceptions they sought
for the CIA, as allies in Congress made little-noticed adjustments to the bill.

The final measure confined only the Defense Department to the list of
interrogation techniques specified in a new Army field manual. No techniques
were specified for CIA officers, who were forbidden only in general terms to
employ "cruel" or "inhuman" methods. Crucially, the new law said those words
would be interpreted in light of U.S. constitutional law. That made a big
difference to Cheney.

The Supreme Court has defined cruelty as an act that "shocks the conscience"
under the circumstances. Addington suggested, according to another government
lawyer, that harsh methods would be far less shocking under circumstances
involving a mass-casualty terrorist threat. Cheney may have alluded to that
advice in an interview with ABC's "Nightline" on Dec. 18, 2005, saying that
"what shocks the conscience" is to some extent "in the eye of the beholder."

Eager to put detainee scandals behind them, Bush's advisers spent days composing
a statement in which the president would declare support for the veto-proof bill
on detainee treatment. Hours before Bush signed it into law on Dec. 30, 2005,
Cheney's lawyer intercepted the accompanying statement "and just literally takes
his red pen all the way through it," according to an official with firsthand
knowledge.

Addington substituted a single sentence. Bush, he wrote, would interpret the law
"in a manner consistent with the constitutional authority of the President to
supervise the unitary executive branch and as Commander in Chief."

Cheney's office had used that technique often. Like his boss, Addington
disdained what he called "interagency treaties," one official said. He had no
qualms about discarding language "agreed between Cabinet secretaries," the
official said.

Top officials from the CIA, Justice, State and Defense departments unanimously
opposed the substitution, according to two officials. The ranking national
security lawyer at the White House, John B. Bellinger III, warned that Congress
would view Addington's statement as a "stick in the eye" after weeks of
consensus-building by national security adviser Stephen J. Hadley.

None of that mattered. With Cheney's weight behind it, White House counsel
Harriet E. Miers sent Addington's version to Bush for his signature. "The only
person in Washington who cares less about his public image than David Addington
is Dick Cheney," said a former White House ally. "What both of them miss is that
... in times of war, a prerequisite for success is people having confidence in
their leadership. This is the great failure of the administration -- a complete
and total indifference to public opinion."


NOT 'EXACTLY AS THE VICE PRESIDENT WOULD HAVE WANTED'

On June 29, 2006, the Supreme Court struck its sharpest blow to the house that
Cheney built, ruling 5 to 3 that the president had no lawful power to try
alleged terrorists in military commissions. The tribunal order that Cheney
brought to Bush's private dining room, and the game plan Cheney's lawyer wrote
to defend it, fetched condemnation on disparate legal grounds. The majority
relied, as Addington's critics foresaw, on Justice Kennedy's vote. Not only did
the court leave the president beholden to Congress for the authority to charge
and punish terrorists, but it rejected a claim of implicit legislative consent
that Bush was using elsewhere to justify electronic surveillance without a
warrant. And not only did it find that Geneva's Common Article 3 protects
"unlawful enemy combatants," but it said that those protections -- including
humane treatment and the right to a trial by "a regularly constituted court" --
were enforceable by federal judges in the United States.

The court's decision, in Hamdan v. Rumsfeld, was widely seen as a calamity for
Cheney's war plan against al-Qaeda. As the Bush administration formed its
response, the vice president's position appeared to decline further still. White
House strategists agreed that they had to submit legislation to undo the damage
of the Hamdan case. Cheney and Addington, according to a former official with
firsthand knowledge, favored a one-page bill. Their proposal would simply have
stated that the Geneva Conventions confer no right of access to U.S. courts,
stripped U.S. courts of jurisdiction over foreign nationals declared to be enemy
combatants and affirmed the president's authority to create military commissions
exactly as he had already done. Bush chose to spend the fall of 2006 negotiating
a much more complex bill that became the Military Commissions Act. The White
House proposal, said Bolten, the chief of staff, "did not come out exactly as
the vice president would have wanted."

In another reversal for Cheney, Bush acknowledged publicly on Sept. 6 that the
CIA maintained secret prisons overseas for senior al-Qaeda detainees, a subject
on which he had held his silence since The Post disclosed them late in 2005. The
president announced a plan to empty the "black sites" and bring their prisoners
to Guantanamo Bay to be tried.

The same day, almost exactly a year after the vice president's office shelved
Waxman's Pentagon plan, Waxman's successor dusted it off. DOD Directive
2310.01E, the Department of Defense Detainee Program, included the verbatim text
of Geneva's Common Article 3 and described it, as Waxman had, as "a minimum
standard for the care and treatment of all detainees." The new Army field
manual, published the next day, said that interrogators were forbidden to employ
a long list of techniques that had been used against suspected terrorists since
Sept. 11, 2001 -- including stripping, hooding, inflicting pain and forcing the
performance of sex acts.

For all the apparent setbacks, close observers said, Cheney has preserved his
top-priority tools in the "war on terror." After a private meeting with Cheney,
one of them said, Bush decided not to promise that there would be no more black
sites -- and seven months later, the White House acknowledged that secret
detention had resumed. The Military Commissions Act, passed by strong majorities
of the Senate and House on Sept. 28 and 29, 2006, gave "the office of the vice
president almost everything it wanted," said Yoo, who maintained his contact
with Addington after returning to a tenured position at Berkeley.

The new law withstood its first Supreme Court challenge on April 2. It exempts
CIA case officers and other government employees from prosecution for past war
crimes or torture. Once again, an apparently technical provision held great
importance to Cheney and his allies.

Without repealing the War Crimes Act, which imposes criminal penalties for grave
breaches of Geneva's humane-treatment standards, Congress said the president,
not the Supreme Court, has final authority to decide what the standards mean --
and whether they even apply.


'I'D LIKE TO CLOSE GUANTANAMO'

Air Force Two touched down in Sydney this past Feb. 24. Cheney had come to
discuss Iraq. Prime Minister John Howard brought the conversation around to an
Australian citizen who had unexpectedly become a political threat. Under
pressure at home, Howard said he told Cheney that there must be a trial "with no
further delay" for David Hicks, 31, who was beginning his sixth year at the U.S.
naval prison at Guantanamo Bay. Five days later, Hicks was indicted as a war
criminal. On March 26, he pleaded guilty to providing "material support" for
terrorism. At every stage since his capture, in a taxi bound for the Afghan-
Pakistan border, Hicks had crossed a legal landscape that Cheney did more than
anyone to reshape. He was Detainee 002 at Guantanamo Bay, arriving on opening
day at an asserted no man's land beyond the reach of sovereign law.
Interrogators questioned him under guidelines that gave legal cover to the
infliction of pain and fear -- and, according to an affidavit filed by British
lawyer Steven Grosz, Hicks was subjected to beatings, sodomy with a foreign
object, sensory deprivation, disorienting drugs and prolonged shackling in
painful positions.

The U.S. government denied those claims, and before accepting Hicks's guilty
plea it required him to affirm that he had "never been illegally treated." But
the tribunal's rules, written under principles Cheney advanced, would have
allowed the Australian's conviction with evidence obtained entirely by "cruel,
inhuman or degrading" techniques.

Shortly after Cheney returned from Australia, the Hicks case died with a
whimper. The U.S. government abruptly shifted its stance in plea negotiations,
dropping the sentence it offered from 20 years in prison to nine months if Hicks
would say that he was guilty.

Only the dramatic shift to lenience, said Joshua Dratel, one of three defense
lawyers, resolved the case in time to return Hicks to Australia before Howard
faces reelection late this year. The deal, negotiated without the knowledge of
the chief prosecutor, Air Force Col. Morris Davis, was supervised by Susan J.
Crawford, the senior authority over military commissions. Crawford received her
three previous government jobs from then-Defense Secretary Cheney -- appointed
as his special adviser, Pentagon inspector general, and then judge on the U.S.
Court of Appeals for the Armed Forces.

Yet the tactical retreat on Hicks, according to Bush administration officials,
diverted attention from the continuity of U.S. policy on detainees.

A year after Bush announced at a news conference that "I'd like to close
Guantanamo," plans to expand it are proceeding. Senior officials said Cheney,
standing nearly alone, has turned back strong efforts -- by Rice, England, new
Defense Secretary Robert M. Gates and former Bush speechwriter Mike Gerson,
among others -- to give the president what he said he wants.

Cheney and his aides "didn't circumvent the process," one participant said.
"They were just very effective in using it."


'HIS GREAT VIRTUE AND HIS WEAKNESS'

More than a year after Congress passed McCain-sponsored restrictions on the
questioning of suspected terrorists, the Bush administration is still debating
how far the CIA's interrogators may go in their effort to break down resistant
detainees. Two officials said the vice president has deadlocked the debate.

Bush said last September that he would "work with" Congress to review "an
alternative set of procedures" for "tough" -- but, he said, lawful --
interrogation. He did not promise to submit legislation or to report particulars
to any oversight committee, and he has not done so.

Two questions remain, officials said. One involves techniques to be authorized
now. The other is whether any technique should be explicitly forbidden.
According to participants in the debate, the vice president stands by the view
that Bush need not honor any of the new judicial and legislative restrictions.
His lawyer, they said, has recently restated Cheney's argument that when courts
and Congress "purport to" limit the commander in chief's warmaking authority, he
has the constitutional prerogative to disregard them.

If Cheney advocates a return to waterboarding, they said, they have not heard
him say so. But his office has fought fiercely against an executive order or CIA
directive that would make the technique illegal.

"That's just the vice president," said Gerson, Bush's longtime chief
speechwriter, referring to Cheney's October remark that "a dunk in the water"
for terrorists -- a radio interviewer's term -- is "a no-brainer for me."

Gerson added: "It's principled. He's deeply conscious that this is a dangerous
world, and he wants this president and future presidents to be able to deal with
that. He feels very strongly about these things, and it's his great virtue and
his weakness."

[ Staff researcher Julie Tate contributed to this report. ]

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* PART 3: A STRONG PUSH FROM BACK STAGE

http://blog.washingtonpost.com/cheney/
chapters/a_strong_push_from_back_stage/index.html

Air Force Two touched down at the Greenbrier Valley Airport in West Virginia on
Feb. 6, 2003, carrying Vice President Cheney to the annual retreat of Republican
House and Senate leaders. He had come to sell them on the economic centerpiece
of President Bush's first term: a $674 billion tax cut.

Cheney had spent months making sure the package contained everything he wanted.
One thing was missing.

The president had accepted Cheney's diagnosis that the sluggish economy needed a
jolt, overruling senior economic advisers who forecast dangerous budget
deficits. But Bush rejected one of Cheney's remedies: deep reductions in the
capital gains tax on investments.

The vice president "was just hot on that," said Cesar Conda, then Cheney's
domestic policy adviser. "It goes to show you: He wins and he loses, and he lost
on that one."

Not for long.

As the Republican lawmakers debated in a closed-door session at the Greenbrier
resort, the vice president revived the argument, touting his idea as a way to
energize a stock market battered by scandals such as Enron. House allies
inserted Cheney's cut into their package. But that came at the expense of one of
Bush's priorities: abolishing the tax on stock dividends.

Cheney has changed history more than once, earning his reputation as the
nation's most powerful vice president. His impact has been on public display in
the arenas of foreign policy and homeland security, and in a long-running battle
to broaden presidential authority. But he has also been the unseen hand behind
some of the president's major domestic initiatives.

Scores of interviews with advisers to the president and vice president, as well
as with other senior officials throughout the government, offer a backstage view
of how the Bush White House operates. The president is "the decider," as Bush
puts it, but the vice president often serves up his menu of choices.

Cheney led a group that winnowed the president's list of potential Supreme Court
nominees. Cheney resolved a crisis in the space program after the Columbia
shuttle disaster. Cheney fashioned a controversial truce between the legislative
and executive branches -- and averted resignations at the top of the Justice
Department and the FBI -- over the right of law enforcement authorities to
investigate political corruption in Congress.

And it was Cheney who served as the guardian of conservative orthodoxy on budget
and tax matters. He shaped and pushed through Bush's tax cuts, blunting the
influence of Federal Reserve Chairman Alan Greenspan, a longtime friend, and of
Cabinet rivals he had played a principal role in selecting. He managed to
overcome the president's "compassionate conservative" resistance to multiple
breaks for the wealthy. He even orchestrated a decision to let a GOP senator
switch parties -- giving control of the chamber to Democrats -- rather than meet
the senator's demand for billions of dollars in new spending.

On the home front, the vice president is well known for leading a secretive task
force on energy policy. But in a town where politicians routinely scurry for
credit, Cheney more often kept his role concealed, even from top Bush advisers.

"A lot of it was a black box, and I think designedly so," said former Bush
speechwriter David Frum. "It was like -- you know that experiment where you pass
a magnet under the table and you see the iron filings on the top of the table
move? You know there's a magnet there because of what you see happening, but you
never see the magnet."


A 'MORE EFFECTIVE ROLE'

When Bush tapped Cheney to be his running mate seven years ago, he chose a man
who had put a great deal of thought into how a vice president can transform
himself from a funeral-trotting figurehead into a center of real power.

As President Gerald R. Ford's chief of staff in the 1970s, Cheney saw firsthand
how White House policies got shaped -- and how a vice president such as Nelson
Rockefeller could become so marginalized as to be dumped from the ticket. Former
Army secretary John O. Marsh Jr. said Cheney knew that he needed to control the
process by which the president makes choices to ride "the rushing river of
power" that winds through the West Wing to the Oval Office.

"Dick's major concern, one of them was, and I agree, that there needs to be a
greater and more effective role for the vice president," Marsh, a longtime
Cheney friend, said in an interview. "He holds the view, as do I, that the vice
president should be the chief of staff in effect, that everything should run
through his office."

In Bush, Cheney found the perfect partner. The president's willingness to
delegate left plenty of room for his more detail-oriented vice president.

"My impression is that the president thinks that the Reagan style of leadership
is best -- guiding the ship of state from high up on the mast," said former
White House lawyer Bradford A. Berenson. "It seems to me that the vice president
is more willing to get down in the wheelhouse below the decks."

When the space shuttle Columbia disintegrated over Texas on Feb. 1, 2003, for
example, Bush was consumed with concern for the families of the seven dead
astronauts. That left Cheney to make the first critical decisions about the
future of manned spaceflight.

Even as the vice president and others were grappling with the invasion of Iraq,
Cheney crafted a solution to the most pressing problem facing the space program,
said former NASA administrator Sean O'Keefe, a Cheney protege.

With its shuttle fleet grounded, the space agency had no way to resupply the
crew aboard the international space station, including two Americans. Russia was
demanding $100 million to take up the slack. But Congress had barred space-
related payments to Moscow unless the administration could certify that the
Russians were not transferring banned technology to Iran for nuclear, biological
or chemical weapons. Getting the law changed would take time, and could "open up
a can of worms" with no guarantee that the result would be to the
administration's liking, O'Keefe said.

The vice president's solution, he said, was to get around the law by cutting the
deal as a barter. The Russians wouldn't charge the United States for the costs
of flying to the space station, and in return, the Americans wouldn't charge the
Russians for their share of some operating and equipment costs.

The vice president then took the lead in persuading the State Department to go
along with the plan, which never came to public attention. "He helped frame how
to do this without a major diplomatic dust-up," O'Keefe said.

Last year, Cheney was behind another unprecedented and controversial deal that
inserted the White House into an ongoing criminal probe.

When the FBI seized files from the office of Rep. William J. Jefferson (D-La.)
as part of a bribery investigation, House Republican leaders erupted. With a
number of their own members under investigation for other matters, they charged
that the search violated the Constitution. They demanded the return of the
files.

Cheney quickly gravitated toward the House's position, aides said, but Attorney
General Alberto R. Gonzales; his top deputy, Paul J. McNulty; and FBI Director
Robert S. Mueller III threatened to resign if forced to hand over evidence they
believed had been properly collected under a warrant.

White House Chief of Staff Joshua B. Bolten called a meeting on May 25, 2006, to
resolve the political and legal crisis. The president's lawyers and
congressional liaison were in the room, and so was Cheney. Once again, it was
the vice president who came up with a solution, according to a participant.
Cheney's plan met his goal of keeping the files from federal investigators. The
files would be placed under seal for 45 days. Within hours of the meeting, Bush
made Cheney's recommendation official. As often happens in government, delay was
decisive. Jefferson was indicted earlier this month on 16 counts of bribery,
racketeering, fraud, money laundering and obstruction of justice. But nearly
half of the files remain off-limits, tied up in legal disputes.


TAKING OPTIONS 'OFF THE TABLE'

Cheney's influence is manifested not just in crisis but also through his
extraordinary involvement in the daily machinery of the White House.

The vice president chairs a budget review board, a panel the Bush administration
created to set spending priorities and serve as arbiter when Cabinet members
appeal decisions by White House budget officials. The White House has portrayed
the board as a device to keep Bush from wasting time on petty disagreements, but
previous administrations have seldom seen Cabinet-level disputes in that light.
Cheney's leadership of the panel gives him direct and indirect power over the
federal budget -- and over those who must live within it. [Read then-OMB
Director Joshua Bolten's memo about the review board.]

Mitchell E. Daniels Jr., who served as Bush's budget director from 2001 to 2003
and is now governor of Indiana, said that during his tenure the number of times
a Cabinet official made a direct budget appeal to Bush "was zero," which aides
from previous administrations found "stunning," he added.

Daniels said he chalked that track record up to "the respect people had for the
vice president." Cabinet members, he said, recognized that if the board didn't
agree with them, "then the president wasn't likely to, either."

It is well known that Cheney is usually the last to speak to the president
before Bush makes a decision. Less so is his role, to a degree unmatched by his
predecessors, in steering debate by weighing in at the lower-level meetings
where proposals are born and die.

Cheney, Bolten said, is a vocal participant at a weekly luncheon meeting of
Bush's economic team, which gathers without the president. As the most senior
official in the room, Cheney receives great deference from Bush's advisers.

Wise officials vet their proposals in advance. White House budget director Rob
Portman, for instance, sought Cheney's counsel as he was putting together the
budget for the upcoming year, using him as a "sounding board" on issues as
varied as defense spending and tax reform.

"He never, ever has said to me, 'Do this.' Never. Which is interesting, because
that might be the perception of how he operates," Portman said. "But it is 'What
do you think of this?' Well, he's the vice president of the United States -- and
obviously I'm interested in his point of view."

Perhaps more important than Cheney's influence in pushing policies is his power
to stop them before they reach the Oval Office.

When Edward P. Lazear, chairman of the White House Council of Economic Advisers,
broached the idea of limiting the popular mortgage tax deduction, he said he
quickly dropped it after Cheney told him it would never fly with Congress. "He's
a big timesaver for us in that he takes off the table a lot of things he knows
aren't going to go anywhere," Lazear said.

Lazear, who is otherwise known as a fierce advocate for his views, said that he
may argue a point with Cheney "for 10 minutes or so" but that in the end he is
always convinced. "I can't think of a time when I have thought I was right and
the vice president was wrong."

But Cheney is careful to choose which issues deserve his attention, preferring
not to dissipate his influence. "Dick Cheney learned early on to say no to
things that were peripheral to his primary interests or assignments," said his
longtime friend David Gribbin.

Current and former White House officials say that the vice president has largely
steered clear of hot-button issues such as stem cell research and Bush's "faith-
based" initiative to funnel more federal money to religious groups. He is also
savvy enough, they say, to retreat when the president expresses strong personal
views.

Cheney sided with conservatives who wanted to urge the Supreme Court to reverse
a landmark ruling that permitted affirmative action. But, former officials said,
he did not press the case when the president, who as governor of Texas had run a
state university system, made it clear that he intended to take a more limited
and nuanced legal position.

Word of a Cheney loss seldom leaks, a trait that has further endeared him to
Bush -- and that has served to exaggerate his influence. Former Cheney and Bush
aides described several domestic policy defeats that never reached public
notice.

Cheney shared conservative trepidations about the president's signature
education initiative, the No Child Left Behind Act, which gave the federal
government more control over K-12 education. He has griped privately to
confidants, such as economist and CNBC host Lawrence Kudlow, about the
administration's failure to control spending. And in robust internal White House
discussions, he raised concerns about the cost of the administration's decision
to expand Medicare to include a new multibillion-dollar drug entitlement, but
bowed to the political reality that the president had to fulfill a campaign
promise.

"At least in my area, he didn't have a 100 percent batting average," said Conda,
the former domestic policy adviser.

In each case, however, Cheney was a loyal soldier, instrumental in helping to
sell the president's policies on the Hill and to the Republican base.

"Dick once told me that our president is a 'big-government conservative,'" said
former senator Phil Gramm (R-Tex.), in a recollection disputed by Cheney's
office. "Now, Dick keeps his opinions to himself whenever he disagrees with the
administration, as he should. But I believe that Dick is a small-government
conservative."


'A SPINE QUOTIENT'

When Sen. James M. Jeffords (VT) threatened to bolt the GOP during negotiations
over the president's 2001 tax package, senior Bush advisers and Republican
senators were deeply split over whether to buy him off. It was a momentous
decision -- a Jeffords defection would toss the Senate to Democratic control for
the first time since 1994.

But in a contentious internal debate, the vice president forcefully argued that
the administration should not capitulate by giving Jeffords the billions of
dollars in special-education funding he sought, recalled O'Keefe, at the time
deputy director of the Office of Management and Budget.

O'Keefe said Cheney argued that the White House should not sacrifice
conservative principle in the face of Jeffords's threat by scaling back tax cuts
dear to the GOP base in order to create an expensive new mandate. Gramm, who
confirmed that account, said there would have been no end to such demands if the
president had caved.

"The principle was 'Hell, we can't go around funding programs based on what some
individual might do,'" said Gramm, who worked closely with Cheney during the
negotiations.

By the end of the critical meeting, O'Keefe said, the divided group presented
Cheney's view as the consensus recommendation to the president. Bush's $1.35
trillion tax cut passed, and Jeffords defected as promised.

Such stands by Cheney were not uncommon, said Bolten, the White House chief of
staff. Cheney often stepped in if he sensed the administration was softening its
commitment to Republican "first principles," Bolten said, and he was "a pretty
vigorous voice for holding the line on spending and for holding the line on tax
cuts." Longtime Cheney adviser Mary Matalin said the vice president brings a
"spine quotient" to internal debates.

Cheney's power derives in part from meticulous preparation paired with a strong
will to prevail. He knows what he wants, and as one rival put it, Cheney and his
staff are "just ferocious negotiators."

The vice president regularly convenes a kitchen cabinet of diverse outside
economic experts, often before the president is about to make a major decision.
Members of the group describe a man who enjoys the nitty-gritty of economics,
poring over charts of obscure data such as freight-car loadings and quizzing
experts on the subtle ways the government can influence the economy.

"With the president it was much shorter. It's 'Marty, what do you think of where
we stand today?'" said Martin Feldstein, a Harvard economics professor and the
president and chief executive of the National Bureau of Economic Research. "It's
also a less technical presentation."

R. Glenn Hubbard, Bush's former chairman of the Council of Economic Advisers,
said of Cheney: "I'd have conversations with him that were at a level of detail
that those with the president were not."

In the weeks following the attacks of Sept. 11, 2001, as the White House was
putting together an economic recovery package, Cheney gathered his kitchen
cabinet, frequently interrupting the experts as he furiously jotted notes on a
stack of cards embossed with the vice presidential seal. What kind of tax cuts
are needed? Cheney wanted to know. How big?

A few days later, Cheney was "on fire" when he met with the president, Cheney's
chief of staff, I. Lewis "Scooter" Libby, later told Conda. Cheney had decided
that the best way to shake business leaders out of their post-attack paralysis
was to let them immediately write off the cost of new plants and equipment.
After hearing him out, Bush made Cheney's idea a centerpiece of his plan.

In previous administrations, such initiatives typically have been generated by
the Treasury Department or the White House economic team. But Cheney has made
the vice president's office a hub of tax policy, enabled by the fact that "this
president appears to want to have Treasury take the orders from the White
House," said John H. Makin, an economist and an informal Cheney adviser.

All this put Cheney in a position to outflank some of Bush's top advisers, and
even his old friend Greenspan, to shape the administration's signature tax
package: the 2003 cuts that Cheney sold at the Greenbrier resort in West
Virginia.


'THE PRESIDENT MADE THE CALL'

As far as Greenspan knew, the vice president agreed with him on the danger of
the tax package Bush was contemplating. The Federal Reserve chairman worried
that the sheer size of the cuts would drown the federal budget in red ink.

Cheney and Greenspan met regularly, far more often than the Fed chief met with
Bush, according to interviews and Greenspan's calendar. And when the president
did meet with Greenspan, Cheney was nearly always in the room.

The vice president and the Fed chairman had formed a close bond when both served
in the Ford administration. The Fed chief saw the vice president as a conduit to
a president he did not know nearly as well, someone he could trust to fairly
present his views to Bush.

So Greenspan sent Cheney a study by one of the central bank's senior economists
showing that big deficits lead to higher long-term interest rates, according to
a person with firsthand knowledge. Higher rates, Greenspan believed, would wipe
out any short-term benefit from a tax cut.

In subsequent meetings with the Fed chief, Cheney never took issue with the
study. What Greenspan did not know was that, behind the scenes, the vice
president took steps to undermine an argument that could threaten the big tax
cut he favored. Conda, the vice president's aide, said Cheney asked him to
critique the study. Conda attached his own memo arguing that the Fed's
analytical model was flawed. He said "it wasn't my job to know" what Cheney did
with the paperwork, but noted that Greenspan's study did not gain traction
inside the White House.

Aside from Greenspan, Cheney had faced down opposition from many of the
administration's senior economic voices, including Daniels, Treasury Secretary
Paul H. O'Neill and Commerce Secretary Donald L. Evans. They believed that the
economy was recovering and that a deep tax cut wasn't needed. Daniels said he
worried that it would undermine the GOP message of fiscal discipline.

Cheney, however, pressed his argument that the economy needed a jump-start. He
wanted not only to reduce the tax on dividends but also to cut the capital gains
tax and accelerate income tax breaks for top earners, according to Daniels,
Conda, Hubbard and others. Conda said Cheney subscribed to the view of supply-
side economists that when government cuts taxes the economy grows, generating
additional tax revenue that largely offsets the losses from lower tax rates.

The standoff came to a head in late November 2002, during a meeting in the
Roosevelt Room.

O'Neill continued to oppose the tax cut on grounds that the government was
moving toward "fiscal crisis," irritating Cheney. "The vice president really got
a sense of where O'Neill was coming from and surmised it was a problem," Conda
said. The following month, Cheney would demand O'Neill's resignation.

Bush sided with Cheney on the dividends tax but thought it would be better to
eliminate it altogether. The president was cooler on the capital gains tax,
according to Conda and others. And having campaigned on a platform of
compassionate conservatism, he expressed doubts about giving another income tax
break to the wealthiest Americans, particularly because they would benefit the
most from the elimination of the dividends tax, Hubbard said.

But by the time Bush publicly announced his tax package on Jan. 7, 2003, Cheney
lost on only one major count. The president included no reduction in the tax on
capital gains.

"There was a question of priorities and how to fit things in," said Karl Rove,
Bush's chief political adviser. "And ultimately the president made the call."

It was then that Cheney doubled back at the Greenbrier retreat.

"We were deciding how to proceed," recalled Rep. Adam H. Putnam (Fla.), now the
third-ranking Republican in the House. "Are we going to put all our eggs in the
dividends basket, or are we going to move on capital gains? As I recall, he was
a very strong advocate on both counts, but particularly capital gains in terms
of its potential to unleash the economy."

In the end, the House decided against eliminating the dividends tax cut, as Bush
had wanted, choosing instead to just reduce the rate to make room for a capital
gains cut.

Bill Thomas, the California Republican who guided the final bill to passage as
chairman of the House tax-writing committee, said he and Cheney go way back and
"use each other in the best sense," with the two men deciding which one will
make a proposal and which will speak up in its support.

In the case of the capital gains proposal, Cheney pitched it to the Greenbrier
gathering. Thomas pitched it to the White House, and he credited the vice
president with persuading Bush to go along. "That," Thomas said, "is why the
administration changed its position."

The vote in the Senate was 51 to 50. Cheney, exercising his only formal power
under the Constitution, cast the tie-breaking vote.

[ Staff researcher Julie Tate contributed to this report. ]

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* PART 4: LEAVING NO TRACKS

http://blog.washingtonpost.com/cheney/chapters/leaving_no_tracks/index.html

Sue Ellen Wooldridge, the 19th-ranking Interior Department official, arrived at
her desk in Room 6140 a few months after Inauguration Day 2001. A phone message
awaited her.

"This is Dick Cheney," said the man on her voice mail, Wooldridge recalled in an
interview. "I understand you are the person handling this Klamath situation.
Please call me at -- hmm, I guess I don't know my own number. I'm over at the
White House."

Wooldridge wrote off the message as a prank. It was not. Cheney had reached far
down the chain of command, on so unexpected a point of vice presidential
concern, because he had spotted a political threat arriving on Wooldridge's
desk.

In Oregon, a battleground state that the Bush-Cheney ticket had lost by less
than half of 1 percent, drought-stricken farmers and ranchers were about to be
cut off from the irrigation water that kept their cropland and pastures green.
Federal biologists said the Endangered Species Act left the government no
choice: The survival of two imperiled species of fish was at stake.

Law and science seemed to be on the side of the fish. Then the vice president
stepped in.

First Cheney looked for a way around the law, aides said. Next he set in motion
a process to challenge the science protecting the fish, according to a former
Oregon congressman who lobbied for the farmers.

Because of Cheney's intervention, the government reversed itself and let the
water flow in time to save the 2002 growing season, declaring that there was no
threat to the fish. What followed was the largest fish kill the West had ever
seen, with tens of thousands of salmon rotting on the banks of the Klamath
River.

Characteristically, Cheney left no tracks.

The Klamath case is one of many in which the vice president took on a decisive
role to undercut long-standing environmental regulations for the benefit of
business.

By combining unwavering ideological positions -- such as the priority of
economic interests over protected fish -- with a deep practical knowledge of the
federal bureaucracy, Cheney has made an indelible mark on the administration's
approach to everything from air and water quality to the preservation of
national parks and forests.

It was Cheney's insistence on easing air pollution controls, not the personal
reasons she cited at the time, that led Christine Todd Whitman to resign as
administrator of the Environmental Protection Agency, she said in an interview
that provides the most detailed account so far of her departure.

The vice president also pushed to make Nevada's Yucca Mountain the nation's
repository for nuclear and radioactive waste, aides said, a victory for the
nuclear power industry over those with long-standing safety concerns. And his
office was a powerful force behind the White House's decision to rewrite a
Clinton-era land-protection measure that put nearly a third of the national
forests off limits to logging, mining and most development, former Cheney staff
members said.

Cheney's pro-business drive to ease regulations, however, has often set the
administration on a collision course with the judicial branch.

The administration, for example, is appealing the order of a federal judge who
reinstated the forest protections after she ruled that officials didn't
adequately study the environmental consequences of giving states more
development authority.

And in April, the Supreme Court rejected two other policies closely associated
with Cheney. It rebuffed the effort, ongoing since Whitman's resignation, to
loosen some rules under the Clean Air Act. The court also rebuked the
administration for not regulating greenhouse gases associated with global
warming, issuing its ruling less than two months after Cheney declared that
"conflicting viewpoints" remain about the extent of the human contribution to
the problem.

In the latter case, Cheney made his environmental views clear in public. But
with some notable exceptions, he generally has preferred to operate with
stealth, aided by loyalists who owe him for their careers.

When the vice president got wind of a petition to list the cutthroat trout in
Yellowstone National Park as a protected species, his office turned to one of
his former congressional aides.

The aide, Paul Hoffman, landed his job as deputy assistant interior secretary
for fish and wildlife after Cheney recommended him. In an interview, Hoffman
said the vice president knew that listing the cutthroat trout would harm the
recreational fishing industry in his home state of Wyoming and that he "followed
the issue closely." In 2001 and again in 2006, Hoffman's agency declined to list
the trout as threatened.

Hoffman also was well positioned to help his former boss with what Cheney aides
said was one of the vice president's pet peeves: the Clinton-era ban on
snowmobiling in national parks. "He impressed upon us that so many people
enjoyed snowmobiling in the Tetons," former Cheney aide Ron Christie said.

With Cheney's encouragement, the administration lifted the ban in 2002, and
Hoffman followed up in 2005 by writing a proposal to fundamentally change the
way national parks are managed. That plan, which would have emphasized
recreational use over conservation, attracted so much opposition from park
managers and the public that the Interior Department withdrew it. Still, the
Bush administration continues to press for expanded snowmobile access, despite
numerous studies showing that the vehicles harm the parks' environment and polls
showing majority support for the ban.

Hoffman, now in another job at the Interior Department, said Cheney never told
him what to do on either issue -- he didn't have to.

"His genius," Hoffman said, is that "he builds networks and puts the right
people in the right places, and then trusts them to make well-informed decisions
that comport with his overall vision."


'POLITICAL RAMIFICATIONS'

Robert F. Smith had grown desperate by the time he turned to the vice president
for help.

The former Republican congressman from Oregon represented farmers in the Klamath
basin who had relied on a government-operated complex of dams and canals built
almost a century ago along the Oregon-California border to irrigate nearly a
quarter-million acres of arid land.

In April 2001, with the region gripped by the worst drought in memory, the
spigot was shut off.

Studies by the federal government's scientists concluded unequivocally that
diverting water would harm two federally protected species of fish, violating
the Endangered Species Act of 1973. The Bureau of Reclamation was forced to
declare that farmers must go without in order to maintain higher water levels so
that two types of suckerfish in Upper Klamath Lake and the coho salmon that
spawn in the Klamath River could survive the dry spell.

Farmers and their families, furious and fearing for their livelihoods, formed a
symbolic 10,000-person bucket brigade. Then they took saws and blowtorches to
dam gates, clashing with U.S. marshals as water streamed into the canals that
fed their withering fields, before the government stopped the flow again.

What they didn't know was that the vice president was already on the case.

Smith had served with Cheney on the House Interior Committee in the 1980s, and
the former congressman said he turned to the vice president because he knew him
as a man of the West who didn't take kindly to federal bureaucrats meddling with
private use of public land. "He saw, as every other person did, what a
ridiculous disaster shutting off the water was," Smith said.

Cheney recognized, even before the shut-off and long before others at the White
House, that what "at first blush didn't seem like a big deal" had "a lot of
political ramifications," said Dylan Glenn, a former aide to President Bush.

Bush and Cheney couldn't afford to anger thousands of solidly Republican farmers
and ranchers during the midterm elections and beyond. The case also was rapidly
becoming a test for conservatives nationwide of the administration's commitment
to fixing what they saw as an imbalance between conservation and economics.

"What does the law say?" Christie, the former aide, recalled the vice president
asking. "Isn't there some way around it?"

Next, Cheney called Wooldridge, who was then deputy chief of staff to Interior
Secretary Gale A. Norton and the woman handling the Klamath situation.

Aides praise Cheney's habit of reaching down to officials who are best informed
on a subject he is tackling. But the effect of his calls often leads those mid-
level officials scrambling to do what they presume to be his bidding.

That's what happened when a mortified Wooldridge finally returned the vice
president's call, after receiving a tart follow-up inquiry from one of his
aides. Cheney, she said, "was coming from the perspective that the farmers had
to be able to farm -- that was his concern. The fact that the vice president was
interested meant that everyone paid attention."

Cheney made sure that attention did not wander. He had Wooldridge brief his
staff weekly and, Smith said, he also called the interior secretary directly.

"For months and months, at almost every briefing it was 'Sir, here's where we
stand on the Klamath basin,'" recalled Christie, who is now a lobbyist. "His
hands-on involvement, it's safe to say, elevated the issue."


'LET THE WATER FLOW'

There was, as it happened, an established exemption to the Endangered Species
Act.

A rarely invoked panel of seven Cabinet officials, known informally as the "God
Squad," is empowered by the statute to determine that economic hardship
outweighs the benefit of protecting threatened wildlife. But after discussing
the option with Smith, Cheney rejected that course. He had another idea, one
that would not put the administration on record as advocating the extinction of
endangered or threatened species.

The thing to do, Cheney told Smith, was to get science on the side of the
farmers. And the way to do that was to ask the National Academy of Sciences to
scrutinize the work of the federal biologists who wanted to protect the fish.

Smith said he told Cheney that he thought that was a roll of the dice. Academy
panels are independently appointed, receive no payment and must reach a
conclusion that can withstand peer review.

"It worried me that these are individuals who are unreachable," Smith said of
the academy members. But Cheney was firm, expressing no such concerns about the
result. "He felt we had to match the science."

Smith also wasn't sure that the Klamath case -- "a small place in a small corner
of the country" -- would meet the science academy's rigorous internal process
for deciding what to study. Cheney took care of that. "He called them and said,
'Please look at this, it's important,'" Smith said. "Everyone just went flying
at it."

William Kearney, a spokesman for the National Academies, said he was unaware of
any direct contact from Cheney on the matter. The official request came from the
Interior Department, he said.

It was Norton who announced the review, and it was Bush and his political
adviser Karl Rove who traveled to Oregon in February 2002 to assure farmers that
they had the administration's support. A month later, Cheney got what he wanted
when the science academy delivered a preliminary report finding "no substantial
scientific foundation" to justify withholding water from the farmers.

There was not enough clear evidence that proposed higher lake levels would
benefit suckerfish, the report found. And it hypothesized that the practice of
releasing warm lake water into the river during spawning season might do more
harm than good to the coho, which thrive in lower temperatures.

Norton flew to Klamath Falls in March to open the head gate as farmers chanted
"Let the water flow!" And seizing on the report's draft findings, the Bureau of
Reclamation immediately submitted a new decade-long plan to give the farmers
their full share of water.

When the lead biologist for the National Marine Fisheries Service team critiqued
the science academy's report in a draft opinion objecting to the plan, the
critique was edited out by superiors and his objections were overruled, he said.
The biologist, Michael Kelly, who has since quit the federal agency, said in a
whistle-blower claim that it was clear to him that "someone at a higher level"
had ordered his agency to endorse the proposal regardless of the consequences to
the fish.

Months later, the first of an estimated 77,000 dead salmon began washing up on
the banks of the warm, slow-moving river. Not only were threatened coho dying --
so were chinook salmon, the staple of commercial fishing in Oregon and Northern
California. State and federal biologists soon concluded that the diversion of
water to farms was at least partly responsible.

Fishermen filed lawsuits and courts ruled that the new irrigation plan violated
the Endangered Species Act. Echoing Kelly's objections, the U.S. Court of
Appeals for the 9th Circuit observed that the 10-year plan wouldn't provide
enough water for the fish until year nine. By then, the 2005 opinion said, "all
the water in the world" could not save the fish, "for there will be none to
protect." In March 2006, a federal judge prohibited the government from
diverting water for agricultural use whenever water levels dropped beneath a
certain point.

Last summer, the federal government declared a "commercial fishery failure" on
the West Coast after several years of poor chinook returns virtually shut down
the industry, opening the way for Congress to approve more than $60 million in
disaster aid to help fishermen recover their losses. That came on top of the $15
million that the government has paid Klamath farmers since 2002 not to farm, in
order to reduce demand.

The science academy panel, in its final report, acknowledged that its draft
report was "controversial," but it stood by its conclusions. Instead of focusing
on the irrigation spigot, it recommended broad and expensive changes to improve
fish habitat.

"The farmers were grateful for our decision, but we made the decision based on
the scientific outcome," said the panel chairman, William Lewis, a biologist at
the University of Colorado at Boulder. "It just so happened the outcome favored
the farmers."

But J.B. Ruhl, another member of the panel and a Florida State University law
professor who specializes in endangered species cases, said the Bureau of
Reclamation went "too far," making judgments that were not backed up by the
academy's draft report. "The approach they took was inviting criticism," Ruhl
said, "and I didn't think it was supported by our recommendations."


'MORE PRO-INDUSTRY'

Whitman, then head of the EPA, was on vacation with her family in Colorado when
her cellphone rang. The vice president was on the line, and he was clearly
irked.

Why was the agency dragging its feet on easing pollution rules for aging power
and oil refinery plants?, Cheney wanted to know. An industry that had
contributed heavily to the Bush-Cheney campaign was clamoring for change, and
the vice president told Whitman that she "hadn't moved it fast enough," she
recalled.

Whitman protested, warning Cheney that the administration had to proceed
cautiously. It was August 2001, just seven months into the first term. We need
to "document this according to the books," she said she told him, "so we don't
look like we are ramrodding something through. Because it's going to court."

But the vice president's main concern was getting it done fast, she said, and
"doing it in a way that didn't hamper industry."

At issue was a provision of the Clean Air Act known as the New Source Review,
which requires older plants that belch millions of tons of smog and soot each
year to install modern pollution controls when they are refurbished in a way
that increases emissions.

Industry officials complained to the White House that even when they had merely
performed routine maintenance and repairs, the Clinton administration hit them
with violations and multimillion-dollar lawsuits. Cheney's energy task force
ordered the EPA to reconsider the rule.

Whitman had already gone several rounds with the vice president over the issue.

She and Cheney first got to know each other in one of the Nixon administration's
anti-poverty agencies, working under Donald H. Rumsfeld. When Cheney offered her
the job in the Bush administration, the former New Jersey governor marveled at
how far both had come. But as with Treasury Secretary Paul H. O'Neill, another
longtime friend who owed his Cabinet post to Cheney, Whitman's differences with
the vice president would lead to her departure.

Sitting through Cheney's task force meetings, Whitman had been stunned by what
she viewed as an unquestioned belief that EPA's regulations were primarily to
blame for keeping companies from building new power plants. "I was upset, mad,
offended that there seemed to be so much head-nodding around the table," she
said.

Whitman said she had to fight "tooth and nail" to prevent Cheney's task force
from handing over the job of reforming the New Source Review to the Energy
Department, a battle she said she won only after appealing to White House Chief
of Staff Andrew H. Card Jr. This was an environmental issue with major
implications for air quality and health, she believed, and it shouldn't be
driven by a task force primarily concerned with increasing production.

Whitman agreed that the exception for routine maintenance and repair needed to
be clarified, but not in a way that undercut the ongoing Clinton-era lawsuits --
many of which had merit, she said.

Cheney listened to her arguments, and as usual didn't say much. Whitman said she
also met with the president to "explain my concerns" and to offer an
alternative.

She wanted to work a political trade with industry -- eliminating the New Source
Review in return for support of Bush's 2002 "Clear Skies" initiative, which
outlined a market-based approach to reducing emissions over time. But Clear
Skies went nowhere. "There was never any follow-up," Whitman said, and moreover,
there was no reason for industry to embrace even a modest pollution control
initiative when the vice president was pushing to change the rules for nothing.

She decided to go back to Bush one last time. It was a crapshoot -- the EPA
administrator had already been rolled by Cheney when the president reversed
himself on a campaign promise to limit carbon dioxide emissions linked to global
warming -- so she came armed with a political argument.

Whitman said she plunked down two sets of folders filled with news clips. This
one, she said, pointing to a stack about 2-1/2 inches thick, contained articles,
mostly negative, about the administration's controversial proposal to suspend
tough new standards governing arsenic in drinking water. And this one, she said
as she pointed to a pile four or five times as thick, are the articles about the
rules on aging power plants and refineries -- and the administration hadn't even
done anything yet.

"If you think arsenic was bad," she recalled telling Bush, "look at what has
already been written about this."

But Whitman left the meeting with the feeling that "the decision had already
been made." Cheney had a clear mandate from the president on all things energy-
related, she said, and while she could take her case directly to Bush, "you
leave and the vice president's still there. So together, they would then shape
policy."

What happened next was "a perfect example" of that, she said.

The EPA sent rule revisions to White House officials. The read-back was that
they weren't happy and "wanted something that would be more pro-industry," she
said.

The end result, which she said was written at the direction of the White House
and announced in August 2003, vastly broadened the definition of routine
maintenance. It allowed some of the nation's dirtiest plants to make major
modifications without installing costly new pollution controls.

By that time, Whitman had already announced her resignation, saying she wanted
to spend more time with her family. But the real reason, she said, was the new
rule.

"I just couldn't sign it," she said. "The president has a right to have an
administrator who could defend it, and I just couldn't."

A federal appeals court has since found that the rule change violated the Clean
Air Act. In their ruling, the judges said that the administration had redefined
the law in a way that could be valid "only in a Humpty-Dumpty world."

[ Staff researcher Julie Tate contributed to this report. ]

*


Washington Post / AP --

June 23, 2007
ARMY OFFICER SAYS GITMO PANELS FLAWED
By Ben Fox

http://www.washingtonpost.com/wp-dyn/content/
article/2007/06/23/AR2007062300398.html

SAN JUAN, Puerto Rico -- An Army officer who played a key role in the "enemy
combatant" hearings at Guantanamo Bay says tribunal members relied on vague and
incomplete intelligence while being pressured to rule against detainees, often
without any specific evidence.

His affidavit, submitted to the U.S. Supreme Court and released Friday, is the
first criticism by a member of the military panels that determine whether
detainees will continue to be held.

Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who is an
Army reserve officer and a California lawyer, said military prosecutors were
provided with only "generic" material that didn't hold up to the most basic
legal challenges.

Despite repeated requests, intelligence agencies arbitrarily refused to provide
specific information that could have helped either side in the tribunals,
according to Abraham, who said he served as a main liaison between the Combat
Status Review Tribunals and the intelligence agencies.

"What were purported to be specific statements of fact lacked even the most
fundamental earmarks of objectively credible evidence," Abraham said in the
affidavit submitted on behalf of a Kuwaiti detainee, Fawzi al-Odah, who is
challenging his classification as an "enemy combatant."

Abraham's affidavit "proves what we all suspected, which is that the CSRTs were
a complete sham," said a lawyer for al-Odah, David Cynamon.

A Pentagon spokesman, Navy Lt. Cmdr. Chito Peppler, defended the process of
determining which detainees should be held, saying the "procedures afford
greater protection for wartime status determinations than any nation has ever
before provided."

"Lt. Col. Abraham provides his opinion and perspective on the CSRT process. We
disagree with his characterizations," Peppler said. "Lt. Col. Abraham was not in
a position to have a complete view of the CSRT process."

Abraham said he first raised his concerns when he was on active duty with the
Defense Department agency in charge of the tribunal process from September 2004
to March 2005 and felt the issues were not adequately addressed. He said he
decided his only recourse was to submit the affidavit.

"I pointed out nothing less than facts, facts that can and should be fixed," he
told The Associated Press in a telephone interview from his office in Newport
Beach, Calif.

The 46-year-old lawyer, who remains in the reserves, said he believe he had a
responsibility to point out that officers "did not have the proper tools" to
determine whether a detainee was in fact an enemy combatant.

"I take very seriously my responsibility, my duties as a citizen," he said.

Cynamon said he fears the officer's military future could be in jeopardy. "For
him to do this was a courageous thing but it's probably an assurance of career
suicide," he said.

Abraham said he had no intention of leaving the service. "I have no reason to
doubt that the actions I have taken or will take uphold the finest traditions of
the military," he said.

The military held Combatant Status Review Tribunals for 558 detainees at the
U.S. Naval Base at Guantanamo Bay in 2004 and 2005, with handcuffed detainees
appearing before panels made up of three officers. Detainees had a military
"personal representative" instead of a defense attorney, and all but 38 were
determined to be "enemy combatants."

Abraham was asked to serve on one of the panels, and he said its members felt
strong pressure to find against the detainee, saying there was "intensive
scrutiny" when they declared a prisoner not to be an enemy combatant. When his
panel decided the detainee wasn't an "enemy combatant," they were ordered to
reconvene to hear more evidence, he said.

Ultimately, his panel held its ground, and he was never asked to participate in
another tribunal, he said.

Matthew J. MacLean, another al-Odah lawyer, said Abraham is the first member of
the CSRT panels who has been identified, let alone been willing to criticize the
tribunals in the public record. His affidavit was submitted to a Washington,
D.C., appellate court on al-Odah's behalf as well as to the Supreme Court.

"It wouldn't be quite right to say this is the most important piece of evidence
that has come out of the CSRT process, because this is the only piece of
evidence ever to come out of the CSRT process," MacLean said. "It's our only
view into the CSRT."

In April, the Supreme Court declined to review whether Guantanamo Bay detainees
may go to federal court to challenge their indefinite confinement. Lawyers for
the detainees have asked the justices to reconsider. The Bush administration
opposes the request.

[ AP writer Matt Apuzzo in Washington contributed to this report. ]

*


No Comment (Harper'S Magazine) --

June 22, 2007

LETTER TO THE EDITOR, HARPER'S MAGAZINE

By Mary L. Walker
General Counsel, Department of the Air Force

http://www.harpers.org/archive/2007/06/hbc-90000342

To the Editor, Harper's Magazine

I request your attention to Harper's Internet "No Comment" piece by Mr. Scott
Horton, published June 7, 2007. {See below.} It was well below accepted
journalistic standards, lacking both appropriate fact-checking and opportunity
to comment before publication.

The facts: In 2003, I was tasked by the General Counsel, Department of Defense,
to lead a group of senior Pentagon lawyers to assess potential methods of
interrogation for use with terrorist detainees held at Guantanamo. Our review
was an iterative process that included all Judge Advocates General and General
Counsels. Although we were directed to apply the Department of Justice's legal
analysis to our review, I ensured that all participants had several
opportunities to affect the DOJ analysis before incorporation. All General
Counsels and Judge Advocates General were provided opportunity to discuss the
matter directly with the DOD General Counsel as well. Views differing from the
DOJ analysis were addressed in our policy analysis. Finally, the list of
recommended techniques was unanimously concurred in by all Judge Advocates
General and General Counsels.

To respond to some of the other unsupported statements: I have never attempted
to suppress any aspect of any inquiry or investigation. On more occasions than I
would like, I've engaged in unavoidable disputes with some senior Judge
Advocates. They are, like me, entitled to the independence of their views. One
of their roles is to advocate for their uniformed clients. One of mine is to
help ensure meaningful civilian oversight of the military. That creates a
natural, constitutionally derived, tension. I've never evaluated their positions
based on their political views -- indeed, I don't know them.

Sincerely,

Mary L. Walker
General Counsel
Department of the Air Force

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -


June 7, 2007

THE FEDERALIST SOCIETY, THE U.S. ATTORNEYS SCANDAL, AND MARY WALKER

By Scott Horton

http://www.harpers.org/archive/2007/06/hbc-90000247

The Federalist Society bills itself as "a group of conservatives and
libertarians interested in the current state of the legal order." It sponsors
debates and public information functions at law schools around the country. I
have participated in Federalist Society functions for more than a decade myself,
and I always enjoy them. But there is another, darker side of the Federalist
Society which doesn't show up on its website, but it making increasing
appearances on documents turnover in the current probe of the U.S. Attorneys
scandal. It serves as a means by which "loyal Bushies" identify themselves to
one another, prove their absolute ideological loyalty, and it operates as an
express elevator to high government office. Recall, for instance, that in the
list of qualifications that Kyle Sampson prepared, one column was headed
"Federalist Society?"

Now evidence has surfaced suggesting that the Federalist Society was deeply
enmeshed in the plot to purge the Justice Department of those who were unwilling
to fulfill Karl Rove's political plans, and in identifying new candidates who
would. McClatchy reports:

              A leader of an influential conservative legal group recommended a
              replacement candidate for the U.S. attorney in San Diego just days
              after the sitting prosecutor's name was secretly placed on a
              Justice Department firing list, according to a document released
              Wednesday. The recommendation by the executive vice president of
              the Federalist Society, Leonard Leo, came before anyone outside of
              a tight group in the White House and Justice Department knew about
              a nascent strategy that ultimately led to the firings of nine U.S.
              attorneys.

              It could not be determined whether a short e-mail, sent on March
              7, 2005, making the recommendation meant that Leo knew of the plan
              to fire Carol Lam or whether his message was unsolicited and
              coincidental. The subject line of Leo's e-mail to Mary Beth
              Buchanan, then-director of the Executive Office for U.S.
              Attorneys, says, "USA San Diego," indicating the top prosecutor
              job for the Southern District of California. Lam was on the job at
              the time and had no plans to step down.

What is most revealing here is both that Leo knew that Lam was being fired
before she did, and that he was busy identifying replacements. And the candidate
he suggested is telling:

              The text of the note reads, "You guys need a good candidate?" Leo
              goes on to say he would "strongly recommend" the Air Force's
              general counsel, Mary Walker. Walker led a Pentagon working group
              in 2003, which critics said helped provide the administration with
              a rationale to circumvent the international Geneva Conventions
              banning torture in the interrogations of terrorism suspects.

Mary Walker, who is close to a number of Religious Right groups, was a principal
architect of legal efforts to justify torture and other war crimes. She also
played a suspicious role, apparently attempting to suppress an independent
investigation of misconduct by religious evangelical groups at the Air Force
Academy in Colorado Springs. Walker is also widely believed to be involved in
efforts to harass and intimidate Air Force JAGs she considered to be politically
disloyal. She appears to have launched a vendetta against the Air Force's Judge
Advocate General, who had, together with his deputy, opposed her torture
initiatives. She has been one of the most widely disliked figures in the
Rumsfeld Pentagon.

On its website, the Federalist Society claims that it was "founded on the
principles that the state exists to preserve freedom [and] that the separation
of governmental powers is central to our Constitution." It would apparently be
incorrect to suppose that the "separation of powers" they have in mind here
would in any way limit political control over the prosecutorial functions.

*


Washington Post --

June 13, 2007

YEMENI LANGUISHES AT GUANTANAMO LONG AFTER U.S. APPROVED RELEASE
Dispute Over Citizenship Leaves Saudi-Born Detainee in Legal Limbo

By Anthony Shadid

http://www.washingtonpost.com/wp-dyn/content/
article/2007/06/12/AR2007061201819.html

SANAA, Yemen -- The word came in May 2006: Ali Mohammed Nasser Mohammed, a
slight, 24-year-old Yemeni with curly black hair and a wispy beard, would be
freed from Guantanamo after more than four years. He got a checkup. His photo
was taken, as were his fingerprints. He was measured for clothes and shoes, then
offered a meeting with the Red Cross.

As the Pentagon tersely put it later in an e-mail to his attorneys: "Your client
has been approved to leave Guantanamo."

"He never went home," said Martha Rayner, one of the lawyers.

In the legal netherworld that the U.S. military detention center at Guantanamo
Bay, Cuba, has represented since it was opened in 2002, Mohammed, once a cook
for the Taliban in Afghanistan, remains stuck in a limbo of mistaken identities,
bureaucratic inertia and official neglect. In the eyes of his lawyers, the young
Yemeni's case is an indictment of a system, still cloaked in the strictest
secrecy and largely beyond accountability, in which a man who faces no charge
and no sentence remains deprived of the freedom he was granted more than a year
ago.

"It's a lovely illustration of what happens when there's no oversight of the
jailer," said a rueful Rayner.

Just before he was to depart on May 18 of last year, on a flight that carried 15
Saudis home, Mohammed was left off the plane for a simple reason: The Saudi
government said he was not Saudi, even though he was born there. Under Yemeni
and Saudi law, he is Yemeni, by virtue of his parents' citizenship. He carries a
Yemeni passport, grew up in Yemen and went to school in Sanaa, the capital,
where his parents live.

But his attorneys say the U.S. military still classifies him as Saudi. The Saudi
government considers its role over. The Yemeni government says it is unaware of
his case. And Mohammed waits, now confined to Guantanamo's newest facility, Camp
Six, a maximum-security building with no communal area and no way to talk to
other detainees save a shout through a locked door.

"This is a legal issue that has to be looked at," Yemeni Foreign Minister Abu
Bakr al-Qirbi said in an interview.

Asked if he was familiar with the case, he replied, "Not really."

A Pentagon spokesman declined to comment specifically on Mohammed's case but
said that determining a detainee's citizenship can be "more complex in some
parts of the world."

"We use the best information available and work closely with foreign governments
to ascertain a detainee's citizenship and nationality," the spokesman, Cmdr.
J.D. Gordon, said in a statement.

For lawyers, Mohammed's case is perhaps the most vexing among those of the 100
or so Yemenis who now constitute the single largest group of detainees at
Guantanamo. In addition to Mohammed, lawyers say, at least six other Yemenis,
and perhaps many more, were cleared for release as long ago as February 2006 but
remain imprisoned there.

At least publicly, the Yemeni government insists it wants the men repatriated.
Many of them are now entering their sixth year of detention.

"Right from the very onset, Yemen has demanded the release of its citizens and
their handing over to the government of Yemen," said Qirbi, who was appointed
foreign minister in April 2001. "We have not refused any of our detainees."

Both Qirbi and Western diplomats agree that an arrangement has been in place for
their return since at least last summer. A Western diplomat, speaking on
condition of anonymity, called the negotiations, which lasted more than a year,
"long and difficult."

Under the eventual agreement, the diplomat said, Yemen agreed to keep the United
States informed of the released detainees' fate and offered assurances that they
would not leave the country for places such as Iraq or Afghanistan. Qirbi said
Yemen has insisted that there be no conditions -- anything else would constitute
a violation of sovereignty -- but Yemeni officials appear to have complied
informally.

The diplomat said he expected another group of Yemenis to be released "within a
month or so."

The U.S. military has reduced by almost half the number of prisoners at
Guantanamo since the peak of 680 in May 2003. Of the roughly 385 still there,
U.S. officials say they intend to put 60 to 80 on trial. So far, lawyers say,
all the European detainees have been returned, along with two Australians. Half
the Afghan detainees have gone home and nearly half of the Saudis. But the
United States has repatriated only eight Yemeni citizens, six of them in
December.

Qirbi blamed the delays on new U.S. procedures at Guantanamo and the
intervention of the detainees' attorneys in the cases, contentions the lawyers
contest. The Western diplomat said the delays, in part, reflected a desire by
U.S. officials to monitor what became of the most recent returnees.

Despite the insistence of Qirbi and other Yemeni officials, the diplomat also
echoed the contention of Yemeni and American lawyers that the Yemeni government
has exerted little pressure to bring the men home, and diplomats acknowledged
that the government, in particular President Ali Abdullah Saleh, was initially
reluctant to see the men return.

"It's not an issue we get hammered on every day," the diplomat said.

Mohammed Naji Allaw, a lawyer and the coordinator of the Sanaa-based National
Organization for Defending Rights and Freedoms, which has advocated on behalf of
the detainees, was more blunt. "They don't care," he said of government
officials here. "They say, 'Bring them home, don't bring them, it doesn't really
matter.' "

Born in Jiddah, Mohammed came to Yemen as a small child, attending high school
in Sanaa. At 18, he went to Afghanistan. Mohammed has acknowledged attending a
training camp there, but said he spent nearly all his time as a cook and guard
behind the lines in Bagram. After the U.S.-led invasion in October 2001, his
attorneys said, he fled to Pakistan, where he was captured and turned over to
the U.S. military.

Unclassified transcripts of his interviews with military officials at Guantanamo
paint a portrait of a young man still coming of age, at times baffled by the
military's black-and-white views of what constitutes a threat. He refused to
make a statement under oath unless they first agreed to release him. When
officials asked whether he was a frontline fighter carrying an AK-47, he grew
confused at the designation. "What is 47?" he asked. "I know Kalashnikov, but I
do not know what you mean by 47."

At another point, he disputed an allegation that he sang a song at Guantanamo
praising Osama bin Laden. "I don't have the voice to sing or to say anything in
melody," he said.

Rayner and her colleague, Ramzi Kassem, both law professors at the Fordham
University School of Law in New York, first visited Mohammed in November, more
than four years after the Yemeni entered Guantanamo. They said he was almost
casual about his predicament.

"He said, 'I'm meeting with you guys but I don't think all this is necessary.
I've been approved for release,' " Kassem said.

By the time of a meeting in January, he had grown more worried. By March, nearly
a month after the lawyers themselves were notified in an e-mail from the U.S.
military that Mohammed had been approved to leave Guantanamo, he was becoming
desperate, they said. Rayner, in particular, was worried about an almost
incidental request: Mohammed insisted on breaking for lunch because his favorite
dish -- macaroni and chicken -- was being served. To Rayner, the request was a
sign that he was becoming institutionalized.

"The routine had become so ingrained it was hard to break out of," she said.

Rayner and Kassem arrived here with a dozen other lawyers in May to press
Yemen's government on the cases of Mohammed and other detainees already cleared
for release. They requested -- and were refused -- meetings with Saleh, the
heads of political and national security and the interior minister. They saw
only the foreign minister and the human rights minister.

At the meeting with Qirbi, the lawyers said, the foreign minister asked them to
provide him information on the cases.

"Once we have the information, we'll obviously have to raise it with the
Americans," he said in the interview.

Qirbi meant the request as a gesture of cooperation. But Allaw, the human rights
lawyer, saw it as emblematic of the problem. In his 11th-floor office in a bank
building in Sanaa, photocopied papers of Mohammed's case were spread on a desk
-- his parents' identification cards, marriage certificates and education
records.

"If someone doesn't even know the names and exact number of detainees, how can
they pressure another government?" asked the bearded Allaw, his tone a little
jaded. "That's the most basic of information, and they're requesting it from
us."

[ Staff writer Josh White and staff researcher Julie Tate in Washington
contributed to this report. ]

*


New York Times --

June 10, 2007
CHINESE LEAVE GUANTANAMO FOR ALBANIAN LIMBO
By Tim Golden

http://www.nytimes.com/2007/06/10/world/europe/10resettle.html

TIRANA, Albania -- Ahktar Qassim Basit says he is not angry about the four years
he spent as an American prisoner at Guantanamo Bay, Cuba, before his captors
mumbled a brief apology and flew him to this drab Balkan capital to begin a new
life as a refugee.

It is this new life in Albania, Mr. Basit and other former Guantanamo detainees
say, that is driving them to desperation.

The men, Muslims from western China's Uighur ethnic minority, were freed from
their confinement in Cuba after they were found to pose no threat to the United
States. They have now lived for more than a year in a squalid government refugee
center on the grubby outskirts of Tirana, guarded by armed policemen.

The men have been told that they will need to get work to move out of the
center, they said, but that they must learn the Albanian language to get work
permits. For now, they subsist on free meals heavy with macaroni and rice, and
monthly stipends of about $67, which they spend mostly on brief telephone calls
to their families. But some of the men have already lost hope of ever seeing
their wives and children again.

"We suffered very much at Guantanamo, but we continue to suffer here," Mr. Basit
said. "The other prisoners had their countries, but we are like orphans: we have
no place to go."

Mr. Basit and four other men here, who spent time at a hamlet in Afghanistan run
by Uighur separatists, are still considered terrorist suspects by China's
Communist government. Only Albania's pro-American government would give them
asylum, but Albanian officials have since told the men they cannot afford to
give them much else.

Things could be worse, the former prisoners note. At least 15 of the 17 Uighurs
who remain at Guantanamo have also been cleared for release, but not even
Albania will accept them -- and neither will the United States. Instead,
American diplomats say they have asked nearly 100 countries to provide asylum to
the detainees, only to find that Chinese officials have warned some of the same
countries not to accept them.

"The United States has made extensive and high-level efforts over a period of
four years to try to resettle the Uighurs in countries around the world," the
State Department's legal adviser, John B. Bellinger III, said in an interview.
Its lack of success, he added, "has not been for lack of trying."

Many American officials privately describe the Uighurs' plight as one of the
more troubling episodes of the Bush administration's detention program. The case
also provides a view of the remarkable difficulties Washington has encountered
in trying to winnow the detainee population at Guantanamo in response to
domestic and international criticism.

The refugees in Tirana seem to have little sense of how to influence the global
chess game in which they have become involved. They spend most of their days
behind the refugee center's high, cinderblock walls, reading the Koran, studying
Albanian and waiting for a turn on the center's lone desktop computer. They
avoid the gravelly soccer field because it reminds them of one they looked out
on at Guantanamo.

With President Bush scheduled to visit Albania on Sunday, the Uighurs and three
other former Guantanamo detainees here are also asking whether the United
States, having flown them here in shackles, might do anything to help get them
the housing, jobs and other support they have been told to expect.

One morning in mid-May, the five Uighurs (pronounced WEE-gurs) got permission to
leave the refugee center, rode buses downtown and trooped to the offices of the
Albanian prime minister, Sali Berisha. An aide said Mr. Berisha was too busy to
see them, but promised to pass along their entreaties.

"We said, if you can't deliver what you have promised, please ask George W. Bush
to find another country for us," another of the former prisoners, Abu Bakker
Qassim, recalled.

Officials of the Albanian Interior Ministry, which is responsible for the
refugees, declined to comment on their treatment.

The 22 Uighurs who ended up at Guantanamo were part of a group of about three
dozen Uighur men who were staying at a hamlet in the White Mountains of eastern
Afghanistan, not far from Tora Bora, when United States forces began bombing the
area in October 2001.

Most of the five Uighurs in Tirana said they had left their homes in China's
far-western Xinjiang Province, an area the Uighurs call East Turkestan, to earn
more money for their families and escape government harassment. They said they
drifted into Afghanistan after travels through other Central Asian countries,
and heard that the Uighur hamlet was a place where they could get free food and
shelter while trying to figure out where to go next.

The youngest, Ayoub Haji Mamet, who was 18 when he was captured, had a quixotic
plan to make his way across Europe and then fly to the United States to attend
school.

International human rights groups have long accused the Chinese authorities of
oppressing the roughly nine million Uighurs in Xinjiang, where there have been
occasional acts of separatist violence. The State Department's own 2006 human
rights report for China describes ethnic discrimination, the suppression of
Muslim religious freedom and the persecution of those thought to be separatists,
many of whom have been executed.

Pentagon officials have described the Uighur hamlet in Afghanistan as a
separatist training camp that was at least loosely aligned with the Taliban.
Lawyers for the men dispute that characterization. But in interviews, the
Uighurs in Albania described a tiny, primitive outpost run by secretive members
of some sort of Uighur liberation group.

The men who arrived there were given chores to do and beans to eat. Most of them
were assigned aliases and shown how to fire an old AK-47 assault rifle, the only
weapon they saw. One American intelligence official said that some of the
Uighurs still at Guantanamo received more extensive training. The leader of the
hamlet, a man called Abdul Musin, told visitors that they could stay on if they
wanted to "liberate" other Uighurs, the men said, but that they were also free
to go.

"We do not know if he belonged to any group," said Mr. Qassim, 38, the oldest of
the five detainees. "We were not allowed to ask any questions."

In mid-October of 2001, American planes bombed the Uighur hamlet, killing at
least one man and sending the rest fleeing over the mountains into Pakistan.
Villagers there sheltered and fed the Uighurs but then betrayed them to local
security forces, which turned them over to the United States military.

By June 2002, nearly all the Uighurs had been sent from military detention
centers in Afghanistan to Guantanamo. They described their imprisonment as
bewildering and traumatic, punctuated by moments of the absurd. After they were
cleared for release, they were able to watch cartoons and Harry Potter movies,
until Mr. Mamet smashed the television because of what he said was the guards'
refusal to take him to a doctor. The set was replaced with one made in China,
the men said dismissively; it broke after a week.

Several of the Uighurs said their most traumatic experience at Guantanamo was
their interrogation by a team of Chinese security officials in September 2002.
The Chinese "had all of our files from the Americans," Mr. Qassim said,
threatened them repeatedly and insisted that the prisoners return with them to
China. They refused.

But American intelligence personnel at Guantanamo soon began to doubt that most
of the Uighurs represented a real terrorist threat, officials who served there
said. By late 2003, senior national security officials in Washington cleared
most of the Uighurs for release -- 14, by one official's count.

Some officials at the Pentagon advocated sending the Uighurs back to China, and
the State Department eventually sought and received assurances from the Chinese
that they would treat the men humanely. But senior officials finally decided not
to repatriate them, citing China's past treatment of the Uighur minority.

The State Department began approaching both Muslim countries like Turkey and
those with small Uighur communities, like Germany and Sweden. However, the
search was interrupted in September 2004, when the Pentagon set up panels at
Guantanamo to decide whether the prisoners there, including the 22 Uighurs, were
being rightfully held. Although most of the Uighurs had already been cleared for
release, the review panels found that all but six were in fact enemy combatants.

The boards were told to review the Uighur cases again, officials said. This
time, they found that only five could be freed. (Subsequent annual reviews have
cleared 15 of the 17 remaining detainees.)

The State Department then began casting its net more widely. One prospect was
the west African republic of Gabon, which has a small Muslim minority. Gabon's
long-ruling president, Omar Bongo, said he was open to accepting the Uighurs.
But according to two officials, he wanted not only compensation for resettling
the refugees, but support for international loans to his government and a
meeting with President Bush at the White House. He had already had one such
meeting just months earlier, on May 26, 2004.

American diplomats said they had contacted governments from Angola to
Switzerland to Australia. Increasingly, though, they have seen the shadows of
their Chinese counterparts.

"The Chinese keep coming in behind us and scaring different countries with whom
they have financial or trade relationships," said one administration official,
who insisted on anonymity in discussing diplomatic issues.

A spokeswoman for the Chinese Embassy in Washington said her government would
not discuss its specific diplomatic efforts regarding the Uighurs. But in a
statement, the embassy described the Uighurs at Guantanamo as "suspects of the
'East Turkestan' terrorist forces which constitute part of international
terrorist forces," and it said they should face justice in China.

Beijing's ambassador to Albania has met at least three times with Mr. Berisha,
the prime minister, to demand the Uighurs' repatriation, Albanian officials
said. Albania has since told Washington it cannot accept any more of the Uighur
detainees.

"But we helped as much as we could," the Albanian foreign minister, Lulzim
Basha, said in an interview.

American officials said China has also been active in Germany, which has heard
appeals about the Uighurs from high-level White House and State Department
officials, as well as international human rights groups.

"One of the problems we've encountered is that they say, why doesn't the U.S.
take some of these people?" said Kenneth Roth, the executive director of Human
Rights Watch, who has lobbied European governments to accept some of the Uighurs
and other Guantanamo detainees.

American officials said they considered that idea. But two officials said it was
shot down in 2005 by the Department of Homeland Security, which argued that the
men would be barred from entering the United States under the Immigration and
Nationality Act because they had been linked to a terrorist group or received
"military-type training" from a group that engaged in terrorism.

Although American officials said they had compensated the Albanian government
generously for taking the refugee, American diplomats in Tirana have paid little
attention to the fate of the five Uighurs and the three other former Guantanamo
detainees here, an Egyptian, an Algerian and an Uzbek.

"We've never talked to them," said an American official who insisted on
anonymity because she was not authorized to discuss the matter. "We don't
monitor them. They're not our citizens, and there is no reason for us to." The
official attributed the shortcomings of the Albanian resettlement effort to
"routine bureaucratic problems."

The Tirana representative of the United Nations High Commissioner for Refugees,
which has helped to organize and finance the refugee program in Albania, sounded
more frustrated with the slow pace of resettlement.

"The government of Albania agreed to provide asylum to these people," the
official, Hossein Kheradmand, said. "We are not talking about 5,000 or 6,000
people; we are talking about eight people."

The detainees have tried to fend for themselves. Mr. Mamet, the only one of the
Uighurs who is single, found a young Albanian Muslim woman to marry but the
arrangement collapsed when he could not move out of the refugee center. The
others seem torn between longing for their families, who may never be able to
leave China, and hope that they might someday start over.

After what they said had been endless promises of help from Albanian officials,
they asked late last year to be moved to another country. They were told that
because they were in a "safe" country, the United Nations could not relocate
them. And anyway, no other country would have them. Lately, they have considered
a hunger strike, a protest method they sometimes used in Cuba.

"After four and a half years, we thought we had escaped from Guantanamo, but we
are still living under that shadow," Mr. Qassim said. "Sometimes we think it
would be better to go die in our homeland than to stay here."

[ Raymond Bonner contributed reporting from Washington. ]

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