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NEWS DIGEST 2007.08.01 - 2007.10.31 
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Washington Post --

October 27, 2007

FROM CIA JAILS, INMATES FADE INTO OBSCURITY
Dozens of 'Ghost Prisoners' Not Publicly Accounted For

by Craig Whitlock

http://www.washingtonpost.com/wp-dyn/content/
article/2007/10/26/AR2007102602326.html

ISLAMABAD, Pakistan -- On Sept. 6, 2006, President Bush announced that the CIA's
overseas secret prisons had been temporarily emptied and 14 al-Qaeda leaders
taken to Guantanamo Bay, Cuba. But since then, there has been no official
accounting of what happened to about 30 other "ghost prisoners" who spent
extended time in the custody of the CIA.

Some have been secretly transferred to their home countries, where they remain
in detention and out of public view, according to interviews in Pakistan and
Europe with government officials, human rights groups and lawyers for the
detainees. Others have disappeared without a trace and may or may not still be
under CIA control.

The bulk of the ghost prisoners were captured in Pakistan, where they scattered
after the U.S. invasion of Afghanistan in 2001.

Among them is Mustafa Setmariam Nasar, a dual citizen of Syria and Spain and an
influential al-Qaeda ideologue who was last seen two years ago. On Oct. 31,
2005, the red-bearded radical with a $5 million U.S. bounty on his head arrived
in the Pakistani border city of Quetta, unaware he was being followed.

Nasar was cornered by police as he and a small group of followers stopped for
dinner. Soon after, according to Pakistani officials, he was handed over to U.S.
spies and vanished into the CIA's prison network. Since then, various reports
have placed him in Syria, Afghanistan and India, though nobody has been able to
confirm his whereabouts.

Nearly all the Arab members of al-Qaeda caught in Pakistan were given to the
CIA, Pakistani security officials said. But the fate of several Pakistani al-
Qaeda operatives who were also captured remains murky; the Pakistani government
has ignored a number of lawsuits filed by relatives seeking information.

"You just don't know -- either these people are in the custody of the Pakistanis
or the Americans," said Zafarullah Khan, human rights coordinator for the
Pakistan Muslim League, an opposition political party.

Others have been handed over to governments that have kept their presence a
secret.

Since 2004, for example, the CIA has handed five Libyan fighters to authorities
in Tripoli. Two had been covertly nabbed by the CIA in China and Thailand, while
the others were caught in Pakistan and held in CIA prisons in Afghanistan,
Eastern Europe and other locations, according to Libyan sources.

The Libyan government has kept silent about the cases. But Libyan political
exiles said the men are kept in isolation with no prospect of an open trial.

Other ghost prisoners are believed to remain in U.S. custody after passing into
and out of the CIA's hands, according to human rights groups.

Relatives of a Tunisian al-Qaeda suspect known as Retha al-Tunisi, captured in
Karachi, Pakistan, in 2002, received notice recently from the International
Committee of the Red Cross that he is detained at a U.S. military prison in
Afghanistan, said Clara Gutteridge, an investigator for Reprieve, a London-based
legal rights group that represents many inmates at the U.S. prison at Guantanamo
Bay. Other prisoners, since released, had previously reported seeing Tunisi at a
secret CIA "black site" in Afghanistan.

At least one former CIA prisoner has been quietly freed. Ahmad Khalil Ibrahim
Samir al-Ani, an Iraqi intelligence agent captured after the invasion of Iraq in
2003, was detained at a secret location until he was released last year.

Ani gained notoriety before the Iraq war when Bush administration officials said
he had met in Prague with Sept. 11, 2001, hijacker Mohamed Atta. Some officials,
including Vice President Cheney, cited the rendezvous as evidence of an alliance
between al-Qaeda and Saddam Hussein. The theory was later debunked by U.S.
intelligence agencies and the Sept. 11 commission, which revealed in 2004 that
Ani was in U.S. custody.

The Iraqi spy resurfaced two months ago when Czech officials revealed that he
had filed a multimillion-dollar compensation claim. His complaint: that
unfounded Czech intelligence reports had prompted his imprisonment by the CIA.
Guantanamo Newcomers

When Bush confirmed the existence of the CIA's prisons in September 2006, he
said they had been vacated for the time being. But he said the U.S. government
would use them again, if necessary.

The CIA has resumed its detention program. Since March, five new terrorism
suspects have been transferred to Guantanamo. Although the Pentagon has not
disclosed details about how or precisely when they were captured, officials have
said one of the prisoners, Abd al-Hadi al-Iraqi, had spent months in CIA custody
overseas.

Details of the secret detention program remain classified. U.S. officials have
offered only vague descriptions of its reach and scope.

Last month, in a speech in New York, CIA Director Michael V. Hayden said "fewer
than 100 people" had been detained in the CIA's overseas prison network since
the program's inception in early 2002.

In June, a coalition of human rights groups identified 39 people who may have
been in CIA custody but are still missing. Many of those on the list, however,
were identified by partial names or noms de guerre, such as one man described
only as Mohammed the Afghan.

Joanne Mariner, director of terrorism and counterterrorism research for Human
Rights Watch, said the CIA has moved many prisoners from country to country and
relied on other spy services to take custody of suspects, sometimes temporarily
and sometimes for good.

"The large majority have gone to their countries of origin," she said. "But that
doesn't mean all of them. There could be some that are still in proxy
detention."

In a footnote to its 2004 report, the Sept. 11 commission named nine al-Qaeda
suspects who were in U.S. custody at black sites. Seven were later transferred
to Guantanamo.

Still missing is Hassan Ghul, a Pakistani national captured in northern Iraq in
January 2004. U.S. officials have described him as a high-level emissary between
al-Qaeda's core command in Pakistan and its affiliates in Iraq.

Another prisoner on the commission's list was Ali Abd al-Rahman al-Faqasi al-
Ghamdi, a Saudi accused of planning attacks in the Arabian Peninsula. He
surrendered to Saudi authorities in June 2003.

Although the Sept. 11 commission reported that Ghamdi was in U.S. custody, Saudi
officials said that was not the case. They said he remains in prison in Saudi
Arabia and has never left the country.

"He was never, under no condition, in U.S. custody," said a Saudi security
source who spoke on condition of anonymity.

Officials with the International Committee of the Red Cross said they have
failed to find dozens of people once believed to have been in CIA custody,
despite repeated queries to the U.S. government and other countries.

"The ICRC remains gravely concerned by the fate of the persons previously held
in the CIA detention program who remain unaccounted for," said Simon Schorno, a
Red Cross spokesman in Washington. "The ICRC is concerned about any type of
secret detention."

The CIA declined to comment on whether certain individuals were ever in its
custody.

"Apart from detainees transferred to Guantanamo, the CIA does not, as a rule,
comment publicly on lists of people alleged to have been in its custody -- even
though those lists are often flawed," said Paul Gimigliano, a CIA spokesman.
Out in the Cold

When the Bush administration disclosed last year that 14 senior al-Qaeda leaders
had been transferred to Guantanamo -- leaving the CIA prisons temporarily vacant
-- some conspicuous names were missing from the list.

One was an al-Qaeda training camp leader known as Ibn al-Sheikh al-Libi. He was
arrested in the Pakistani border town of Kohat in late 2001 and eventually taken
to Cairo, where the CIA enlisted Egyptian intelligence agents to help with the
interrogation.

Libi began to talk. Among his claims: that the Iraqi regime had provided
training in poisons and mustard gas to al-Qaeda operatives.

His statements were cited by the Bush administration as part of the rationale
for invading Iraq in 2003. He recanted after the war began, however, and his
continued detention became a political liability for the CIA.

Although the CIA has since acknowledged that Libi was one of its prisoners, U.S.
officials have not disclosed what happened to him. In interviews, however,
political exiles from Libya said he was flown by the CIA to Tripoli in early
2006 and imprisoned by the Libyan government.

Libi reported that the CIA had taken him from Egypt to several other covert
sites, including in Jordan, Morocco and Afghanistan, according to a Libyan
security source.

He also claimed that he had been kept someplace very cold and that his CIA
captors had told him he was in Alaska, the source said. Human rights groups have
suggested that Libi was part of a small group of senior al-Qaeda figures held in
a CIA prison in northern Poland.

In Tripoli, Libi joined several other Libyans who had spent time in the CIA's
penal system. All were members of the Libyan Islamic Fighting Group, a network
that had plotted for years from exile to overthrow Moammar Gaddafi.

After the U.S. invasion of Afghanistan in 2001, members of the Libyan network
who had been staying there dispersed. The CIA helped Libya's spy agencies track
down some of the leaders.

One of them, Abdallah al-Sadeq, was apprehended in a covert CIA operation in
Thailand in the spring of 2004, according to Noman Benotman, a former member of
the Libyan militant network.

Another, Abu Munder al-Saadi, the group's spiritual leader, was caught in the
Hong Kong airport. In both cases, Benotman said, the Libyans were held briefly
by the CIA before U.S. agents flew them to Tripoli.

"They realized very quickly that these guys had nothing to do with al-Qaeda,"
Benotman said in an interview in London. "They kept them for a few weeks, and
that's it."

Benotman said he confirmed details of the CIA operations when he was allowed to
see the men during a visit to a Tripoli prison this year. The trip was arranged
by the Libyan government as part of an effort to persuade the Libyan prisoners
to reconcile with the Gaddafi regime.

The CIA has transferred at least two other Libyans to Tripoli, Benotman said.
Khaled al-Sharif and another Libyan known only as Rabai were captured in
Peshawar, Pakistan, in 2003 and spent time in a CIA prison in Afghanistan, he
said.

The Libyan Embassy in Washington did not respond to a faxed letter seeking
comment.
A Missing 'Gold Mine'

In Spain, prosecutors have been searching for Nasar, the redheaded al-Qaeda
ideologue, for four years.

In 2003, he was indicted by an investigative magistrate in Madrid, accused of
helping to build sleeper cells in Spain. A prolific writer and theoretician in
the jihadi movement, Nasar had lived in several European countries as well as
Afghanistan.

Spain has filed requests for information about Nasar with the Pakistani
government, to no avail. Spanish Foreign Minister Miguel Angel Moratinos also
raised the issue during a visit to Islamabad last year.

"We don't have any indication of where he is," said a source in the Spanish
Foreign Ministry, who spoke on condition of anonymity.

Brynjar Lia, a Norwegian terrorism analyst and the author of a new book on
Nasar, "Architect of Global Jihad," said the radical would know valuable details
about the inner workings of al-Qaeda.

"The Americans are probably the ones who want him the most because he was
prominently involved in al-Qaeda in the 1990s," said Lia, a senior researcher at
the Norwegian Defense Research Establishment. "He must be a gold mine of
information."

Some Spanish media have speculated that Nasar is being held in Syria, his place
of birth. The CIA has transferred other terrorism suspects to Syria despite
tense diplomatic relations between Washington and Damascus.

Other Spanish press reports have claimed that Nasar remains in U.S. custody.
Another rumor is that he's being held in a CIA-run prison in India, said Manuel
Tuero, a Madrid lawyer who represents Nasar's wife.

Though Nasar would go on trial if he was brought back to Spain, that would be
preferable to indefinite detention in a secret prison, Tuero said.

"He's in a legal limbo," he said. "The Americans would never give him a fair
trial. Spain would."

[ Special correspondents Munir Ladaa in Berlin and Cristina Mateo-Yanguas in
Madrid contributed to this report. ]
*


New York Times Magazine --

October 21, 2007

NAMING NAMES AT GITMO

by Tim Golden

http://www.nytimes.com/2007/10/21/magazine/21Diaz-t.html

Well into the night of Sunday, Jan. 2, 2005, Lt. Cmdr. Matthew Diaz sat alone at
his desk in the headquarters of the American detention center at Guantanamo Bay,
Cuba, consumed with a new project.

He often worked late. From the time Diaz enlisted in the Army as a 17-year-old
high-school dropout, hard work had been his ticket. He had earned his college
degree while serving as an artillery sergeant and then completed law school a
semester early, driving a mail truck on the weekends. In 10 years as a Navy
lawyer, his performance evaluations had been outstanding. As his six-month tour
at Guantanamo neared its end, his stint as the deputy legal adviser there looked
like more of the same.

But the task that absorbed Diaz that night in January was taking him down a
different path. Sitting at a secure desktop computer, he printed out page after
page of classified information, pulling each batch from the printer in case
anyone wandered by. When he was done, Diaz had assembled a document 39 pages
long. In tiny type, it listed names, prison serial numbers and other information
for each of the 551 men who were then being held by the United States at
Guantanamo Bay.

There was no question of the government's desire to keep the information secret.
Six months earlier, the Supreme Court rocked the Bush administration by
upholding the Guantanamo prisoners' right to challenge their detention in habeas
corpus proceedings. But the administration fought on, taking the narrow view
that while the detainees might have been granted their day in federal court,
they still had no "legal rights" -- and specifically no right to counsel.
Pentagon officials said that they were withholding the prisoners' names for
their own safety. But keeping the names secret made it harder for volunteer
lawyers to file petitions on the prisoners' behalf and for critics to dispute
official claims that virtually all the men were terrorists.

Diaz's indignation at the government's policies had been building since he
arrived at Guantanamo. He did not doubt that there were dangerous men there. But
he had come to believe that the Pentagon was misrepresenting how the detainees
were treated and the threat some of them posed. As a lawyer, he found the
recalcitrance of the White House indefensible. The Supreme Court had spoken. Why
couldn't the administration go before a judge and show why these men should be
held indefinitely and without charge? "I feel like I'm on the wrong side," he
confided to a couple of the lawyers who were representing Guantanamo prisoners.

Now, Diaz knew he was crossing a line. For nearly two weeks after printing the
list, he kept it locked inside the safe in his office. On another late night, he
carefully trimmed the pages down to the size of large index cards. Then, on Jan.
14, the last night of his tour, he went back to the office one more time. While
his colleagues were getting ready for his farewell dinner, he slipped the stack
of paper inside a Valentine's Day card he had bought at the base exchange. It
was an odd touch. The card showed a cartoon puppy with long ears and bubble eyes
and the greeting, "Hope Valentine's Day is just your style." Diaz would later
say that he chose it because it was big enough to hold the list. He also hoped
the lipstick-red envelope might pass unscrutinized through the Guantanamo post
office.

The flaws in Diaz's plan became apparent soon after the red envelope reached the
New York offices of the Center for Constitutional Rights, a left-wing legal-
advocacy group that counted itself among the most zealous opponents of the
administration's Guantanamo policy. Diaz had addressed the card to Barbara
Olshansky, a lawyer at the center whom he had never met. Weeks earlier, she had
written to the Pentagon official overseeing detention policy, Navy Secretary
Gordon R. England, asking for the names of the detainees so attorneys could
offer to represent them. Diaz, who had been copied on the draft response, knew
that the administration never considered granting the request.

Olshansky, a 43-year-old woman with a sharp legal mind and unruly black hair,
opened the valentine and suspected an elaborate joke. "I have a lot of very
wise-ass friends," she would say later. "Why would I believe that someone would
send me something with the return address Guantanamo?" There was no official
stamp on the paper, nothing marking it as secret. Olshansky thought the whole
thing was weird, but in a way that was unnerving rather than funny.

The center was then suing the government on a range of sensitive issues: the
U.S.A. Patriot Act, immigrants' rights, Guantanamo. As news of the card spread,
some older lawyers at the center had no trouble imagining a government trap. A
few of the younger ones were even more suspicious. They began writing notes to
one another when they needed to discuss the valentine, just in case the office
was bugged. "Everyone was asking, ‘Who could have done this?' " Olshansky
recalled.

It hardly occurred to the lawyers that someone inside the detention-camp
headquarters might be trying to help them, Olshansky told me not long ago. For
all the public debate about Guantanamo, there was little sign that members of
the military were defying their superiors. Uniformed lawyers who had been
assigned to defend some of the prisoners before military commissions had begun
criticizing the rules for those tribunals, but that dissent was explicitly
tolerated by the Pentagon. Some Muslim servicemen at Guantanamo, including an
Army chaplain, Capt. James Yee, had been investigated on suspicion of disloyal
conduct. But that episode and the others seemed to suggest more about the high-
security atmosphere of the camp than it did about any internal opposition to how
the prisoners were treated. The valentine was different: no one had taken the
law into his own hands quite like this.

Olshansky agonized for weeks over what to do. The center's president, Michael
Ratner, initially suggested giving the papers to the press. But after some
consultation with other lawyers, Olshansky called the chambers of the federal
district judge who was hearing her Guantanamo suit. Olshansky told the judge's
clerk she had received some information that might be relevant to the case.
Could she send it over for safekeeping? She said she never expected the court's
response: Olshansky was instructed to turn the material over to the Justice
Department instead.

On March 15, 2005, a federal agent in a black overcoat flew to New York from
Washington. He took a cab to the center's offices in downtown Manhattan and kept
it waiting while he went to retrieve the card and its contents. Once the F.B.I.
began to investigate, it had little difficulty narrowing the list of possible
suspects. Diaz had printed the document from his own computer, bought the
valentine at the base exchange and left his fingerprints on the list. This past
May, Matthew Diaz became the only United States serviceman to be convicted and
imprisoned for an act of insubordination directed at the Bush administration's
detention policies.

Diaz volunteered to go to Guantanamo in early 2004, after a year and a half as
the deputy legal officer at Naval Station Great Lakes, a training base north of
Chicago. He hadn't been enthusiastic about the Great Lakes assignment, but in
his steady, low-key way he did very well there. His superior, Cmdr. Peter J.
Straub, recommended Diaz for early promotion, describing him as "the consummate
naval officer" and "a stellar leader of unquestionable integrity." Six good
months at Guantanamo would certainly help his chances of making commander,
Straub told him.

With other legal officers being shipped off to Afghanistan and Iraq, Cuba
sounded pretty good to Diaz: challenging, not dangerous and reasonably close to
Jacksonville, Fla., where his 12-year-old daughter lived with his ex-wife. He
did not question the military's need to detain some suspected terrorists, he
told me later. At the Army's legal academy in Charlottesville, Va., where he
earned a master's degree in 2002, he had not been among those outraged by the
Bush administration's decision to set aside the Geneva Conventions in the fight
against terrorism. "My takeaway from all of that," he told me in one of a number
of conversations I had with him before and during his confinement at the Navy
brig in Charleston, S.C., "was that there was still an order from the Defense
Department that they be treated humanely."

But as Diaz prepared to deploy in the spring of 2004, questions about how the
law applied at Guantanamo were coming to the fore. Diaz had known a couple of
the military defense lawyers who were criticizing the rules for the tribunals
there; he admired their audacity in speaking out. He was also struck by one of
the briefs filed in Rasul v. Bush, the federal lawsuit that asserted the right
of the Guantanamo prisoners to contest their detention in the court. Two authors
of the brief were retired leaders of the Navy legal corps in which Diaz served.
"To be sure," they wrote, "this is a perilous time, as the president has stated.
But that does not justify indefinite confinement without any type of hearing or
judicial review."

The Supreme Court decided the Rasul case on June 28, 2004, a week before Diaz
arrived on Guantanamo. On his first full day on the base, he went along to watch
guards notify the detainees about the new system of parole-type review boards
that the military was hurriedly setting up in response to the ruling. Diaz was
skeptical of the plan. "It just didn't seem right that we were creating this new
process that no one really ever heard of instead of finding a way to let them
get into district court," he said later.

Diaz had seen his share of prisons, both military and civilian. But he had never
seen anything like the wire-mesh cages at Guantanamo. The prisoners looked more
sad than fearsome, Diaz said. In Camp 4, where more-compliant detainees lived in
barrackslike quarters, Diaz came upon an older prisoner shuffling along with a
walker. "This is what I'd been told were the worst of the worst?" he recalled
thinking. One detainee stuck out his hand as Diaz walked up. He took it without
thinking, and the guards shot each other looks. "I thought, O.K., I shouldn't do
that."

As the deputy staff judge advocate for Joint Task Force Guantanamo, Diaz had a
ground-level view of the legal dramas that were unfolding in the camp. He
delivered lawyers' mail to the detainees. He dealt with the prosecutors and
defense attorneys preparing for the military commission trials. With that
spring's Abu Ghraib scandal still fresh, Diaz was assigned to begin compiling a
spreadsheet for internal use on the abuse allegations registered at Guantanamo.
He was uneasy, he said, but hoped that he could make a positive impact. "I
figured I could do my part to make sure things were done right," he told me. "I
felt that way about the military-justice system."

Later during his first month at the detention center, Diaz's boss was off the
island when a call came in from the regional military command that oversees
Guantanamo from Miami. The Justice Department was proposing rules to the federal
courts for the civilian lawyers who wanted to visit detainees. Justice officials
wanted the military to be able to listen in on meetings between the prisoners
and their lawyers, and Diaz was told to work with intelligence officers to come
up with an explanation of why such monitoring was necessary.

Diaz said he went to report the assignment to the Guantanamo chief of staff,
Col. Tim Lynch. It turned out that Lynch had been over this ground before. As
Diaz sat down in his office, he recalled, Lynch dialed his counterpart in Miami
and demanded to know why Washington was insisting on monitoring that the
intelligence officers at Guantanamo had already said was unnecessary. " ‘Why are
we doing this?' " Diaz quoted Lynch as saying. " ‘My guys have told me they
don't need it. The boots-on-the-ground guys, they don't need it!' "

Lynch was irate, Diaz said. But Diaz was more taken aback by the substance of
the exchange than by its tone. (Lynch did not respond to my repeated e-mail
messages requesting comment.) "D.O.J. wanted this," Diaz told me, "so we had to
make up some reasons why we needed it." Justice Department officials sent an
affidavit to be signed by the Guantanamo commander asserting that some of the
detainees had been trained to pass "coded messages in furtherance of terrorist
operations" to comrades on the outside. Diaz and the intelligence officers were
asked to show how 12 detainees from Kuwait (whose lawyers were challenging the
visiting rules in court) might pull off such a plot. But the officers could find
only three Kuwaitis who sounded plausibly dangerous enough, and even then, the
administration's claims were rejected by the court. "It was a reach," Diaz
recalled. "We were just throwing up these obstacles in the way of implementing
the Rasul decision."

For much of his adult life, Diaz was the person in his family most likely to do
the right thing. He was the one who would come to the rescue when someone needed
help, the one who got through college and graduate school, the one who often
kept the peace. His parents divorced bitterly when Diaz was 6, and he spent the
next years careering back and forth between them. As children, Diaz, his older
sister and their two younger brothers slept for a time in a single bed, cooking
their own meals and shopping for groceries when the food stamps arrived. "We
couldn't count on our parents," his sister, Shari Bravo, said, "but we counted
on each other."

By seventh grade, Diaz had attended nine different schools. His one respite from
the turmoil came a few years later, when he joined his father, who had moved out
to California after getting a nursing degree at Purdue University. Remarried to
a younger woman with children of her own, Robert Diaz had rented a comfortable
ranch house outside Apple Valley, a middle-class community on the edge of
Southern California's Inland Empire. There was a swimming pool, open land and
even a pair of horses. "It was kind of like paradise," Diaz remembered.

But the idyll was brief. As Matthew finished ninth grade at Apple Valley High
School, he answered the door to find sheriff's deputies outside with a search
warrant. An unusual number of elderly patients had been dying at two small
hospitals where Robert Diaz had worked, many after suffering violent seizures.
The deaths exposed a host of problems at one of the hospitals, which was
subsequently closed by the state. But after exhuming some of the dead,
prosecutors in Riverside County theorized that the patients were killed by large
injections of the commonly used heart drug lidocaine. Robert, who was new to
both hospitals, became the prime suspect.

Robert had never been in trouble with the law. No one had seen him inject the
patients with lidocaine. Nor, despite the high levels of unmetabolised lidocaine
in their bodies, was it certain they had been murdered. But Robert Diaz was the
only nurse who was on duty when all of them died, and he sometimes carried
preloaded syringes of lidocaine in his pocket. Two vials of the drug were found
in the search of his home. (Robert said he had simply forgotten to empty his
pockets before leaving work.) Prosecutors never offered a motive for the
killings, but Diaz was arrested in November 1981 and charged with the murders of
12 patients.

"That's when things started falling apart," Matthew Diaz told me. At 16, he was
left to fend for himself. He drifted back to Indiana, where his mother lived,
but returned to California the next summer as his father's trial approached. He
soon dropped out of high school, found a job washing dishes and moved into a San
Bernadino motel with a 28-year-old woman who had become his girlfriend.

Diaz stood by his father, but Robert Diaz's legal defense was a debacle. Because
he could not afford a private attorney, his case fell to a public defender's
office that was beset with dissension and budget problems. Robert's attorneys
persuaded him to forgo a jury trial and take his case before a judge -- a move
that was almost unheard of in a capital murder case.

With his trial looming, Robert Diaz suggested that his son consider enlisting in
the military. Almost a year later, Matthew was serving in an air-defense
artillery unit in West Germany when he saw a brief item about his father in the
military newspaper Stars and Stripes. Robert Diaz had been convicted of all 12
murders. His public defender presented no new evidence or character witnesses in
the penalty phase, noting simply that Diaz was only 46 years old and had saved
the taxpayers money by not having a jury trial. On April 11, 1984, the judge
sentenced Robert Diaz to die in the gas chamber.

Matthew took a leave to visit his father in prison, but after he returned to
Germany, he began to distance himself from the troubles back home. Over the
years, when friends and colleagues asked, Diaz would tell them that his father
was out in San Francisco. If they didn't ask, he didn't volunteer. "I wouldn't
say we'd lost touch, but I just focused on my own stuff," he said. "The things I
was exposed to, it just kind of hardened me."

A few years later, his father began sending him documents from his trial. Diaz
collected the files in a big Tupperware bin. The more he read, he told me, the
more convinced he became that his father was the innocent victim of an
incompetent defense. As Robert Diaz languished on death row at San Quentin State
Prison, his son became more interested in the law. While stationed at Fort
Stewart, Ga., he took an associate's degree in law-enforcement studies, then a
bachelor's degree in criminology. He decided to quit the Army become a police
officer in Georgia.

As Diaz recounted his subsequent decision to go to law school instead, he
remembered having loved the Jimmy Smits character, Victor Sifuentes, on the
television show "L.A. Law" and being impressed by an Army lawyer who came to
speak to one of his college classes. But Diaz's wife at the time, Melissa Reed,
said his choice was deeply influenced by his father's fate. "He was just trying
to do anything and everything he could think of" to help his father, she said,
recalling that they considered moving to California so that Matthew could work
with a lawyer who had taken up the appeal pro bono. Robert Diaz's experience
also shaped his son's view of the law, Reed said. "He felt that there were still
a lot of people out there who weren't getting fair trials," she said. "He's
always been for the underdog; he's always been for helping those people that
nobody else cared about."

To his closest law-school friend, Diaz also confided his hope that he would one
day be able to help win his father's freedom. But in 1992, the California
Supreme Court rejected Robert Diaz's appeal by a vote of 6 to 1, finding
"substantial evidence" for his original conviction and disputing that his trial
defense was incompetent. His execution was stayed while a habeas corpus petition
filed by his lawyers moved slowly through federal district court, where an
evidentiary hearing is still pending. Matthew Diaz continued trying to help,
carting the tub of his father's legal documents with him from post to post.

As Diaz settled in at Guantanamo in the summer of 2004, the military leadership
there was trying to show a more humane face to the world. Following the scandal
at Abu Ghraib, journalists visiting the Cuba base were invited to watch from
behind one-way mirrors as interrogators plied their prisoners with snacks and
tea. "This is a wholly different environment," the task-force commander, Brig.
Gen. Jay W. Hood, told a reporter that summer.

In sifting the abuse complaints that prisoners and others had registered at
Guantanamo, Diaz did not see mistreatment on the scale of Abu Ghraib. Some
prisoners said they had been beaten by guards; some officials reported
interrogations they considered abusive. But as the file of complaints grew, Diaz
said, officials continued to maintain publicly that only a handful had been
confirmed. "There was a lot of stuff in the past that should have been disclosed
but was not," he said.

Some of the legal uncertainty surrounding the Guantanamo prisoners was supposed
to be resolved by the military commissions that began their proceedings that
summer. But what Diaz saw of the initial hearings in late August did not
reassure him. A former Army judge presiding over one tribunal seemed to Diaz to
be bewildered about how to proceed. "Whatever issues the defense was raising, he
didn't have the answers," Diaz recalled. "It was embarrassing."

Among Diaz's other responsibilities was to help manage the civilian lawyers who
began flying down to visit prisoners. The first to arrive was Gitanjali
Gutierrez, a young lawyer for two British detainees, Moazzam Begg and Feroz
Abbasi. Gutierrez cut a swath at Guantanamo, but not in a way that endeared her
to most of the government lawyers with whom she battled over access. A Pentagon
official later described her to the F.B.I. as "pushy and deeply suspicious,"
according to a copy of his statement obtained by The Times. Another lawyer in
Diaz's office called her "difficult to please and very stubborn."

But Diaz liked her. He found her smart, and he was impressed by her commitment
to her work. At least a couple of the other lawyers who saw them together at
Guantanamo got the impression that Diaz had something of a crush on Gutierrez, a
notion he dismissed as silly. But he asked her to keep him in mind if her
clients were ever charged in the tribunals and she needed a uniformed lawyer to
help in the defense. A month later, he e-mailed her to wish her a happy 34th
birthday (his own 39th was the next day). She sounded a little surprised to hear
from him but wrote back that she was returning to Guantanamo soon and would
bring him a new book about the Abu Ghraib scandal, "Chain of Command."

As the end of his tour approached, Diaz's frustration was growing. The prisoner-
abuse files that he and others had compiled now filled two large binders. One
statement, from a senior F.B.I. official, suggested that the military
authorities had ignored complaints from bureau agents about harsh interrogation
techniques. Another recounted a detainee's claim that a guard had thrown him to
the ground and rubbed his face violently in the dirt after the prisoner spat at
him. Diaz found the report credible -- the file included a photograph of the
prisoner's mangled face -- and was surprised that it was not included among the
allegations that the military made public.

In the statements they would later make to F.B.I. investigators, Diaz's
colleagues at Guantanamo generally described him as professional, affable and
laid-back. Some of them were more impressed by him than others. But few of his
fellow officers had much sense of Diaz the iconoclast: the lawyer who disdained
the continuing war in Iraq, who quietly avoided social gatherings with more
gung-ho government lawyers and who sometimes broke away from the caste society
of the military to hang out with Jamaican and Filipino laborers who worked on
the base.

Diaz was careful not to challenge the way things were done, he told me, and
discreet about his views on Guantanamo. "I pretty much kept my thoughts to
myself," he said. "I didn't broadcast them." To the wider military community, he
could even sound a little gung-ho too. As his time at Guantanamo was winding
down, his colleagues suggested to the public-affairs office that Diaz would make
a good subject for a profile in the task-force newsletter, Behind the Wire. The
resulting article, "Fifteen Minutes of Fame with Lt. Cmdr. Matt Diaz," told of a
Latino kid who "left life on the street at 17," worked his way up the ranks and
made good as a Navy lawyer.

"What do you like about Guantanamo?" the interviewer asked him.

"I like the mission," he said. "For the most part, everybody is trying to do the
right thing, and I like being part of that and contributing."

One afternoon in July, as we sat at a picnic table in the sweltering visiting
area of the Charleston brig, I asked if he really believed what he had said. He
said he did, describing soldiers and officers who went out of their way to act
decently toward the men who were being held as terrorists. "They were usually
just too far down the chain to make any kind of difference," Diaz said.

Diaz's own inability to make a difference grated on him. Pentagon investigators
who were preparing a report on Guantanamo abuses seemed to ignore some of the
cases he helped assemble, he said. Despite the first visits to prisoners by
civilian lawyers, little information about their treatment seemed to be getting
out. On Nov. 8, 2004, a federal district judge shut down the military
commissions, ruling that they violated international law. But the case then
moved to a conservative appeals court, where a reversal was widely expected. "I
felt like nothing was ever going to change," Diaz told me.

On Dec. 21, the Pentagon copied him on a letter from Barbara Olshansky at the
Center for Constitutional Rights. Nearly six months after the Supreme Court
decision in Rasul, she was still asking the government for the names and
nationalities of the detainees so that lawyers could file habeas petitions on
their behalf. In a draft response, the administration wrote that the detainees
had other ways to obtain representation.

While other military lawyers felt that the detention camp was finally starting
to open up to outsiders, Diaz was appalled by what he saw as the government's
obstinacy. "No matter what the courts said, they would just keep stonewalling,"
he said. "I knew that if I didn't do anything, nobody else was going to."
Working late one night, he logged onto a secure internal database to see what
lists he could find. It was easy; he could bring up the names 100 at a time.
Diaz said later that he did not ponder how the information might be received in
New York. "I thought they would either file a petition on behalf of those
detainees or maybe contact their families," he told me.

As he lay in bed at night, Diaz said, he thought about the risk he would be
taking if he went ahead. Over the previous year, the military had prosecuted or
disciplined several servicemen for taking classified materials off the island.
Security had been tightened. The Guantanamo counterintelligence officer slept in
the next bedroom of the town house Diaz shared with several midlevel officers.
The career for which he had worked so hard would be on the line. He was within
striking distance of a promotion to commander, or of retiring with an officer's
pension.

Diaz would later say he didn't know the information he mailed off was
classified. The lists he printed out were not marked "Secret," although
officials later acknowledged that they should have been. His lawyers emphasized
that he had access to much more sensitive, top-secret information than anything
he sent. Diaz also said he hadn't known the meaning of all the alphanumeric
codes that followed the names. But one of those codes identified the prisoners
who had given information to Guantanamo interrogators. Military intelligence
officials described that code -- not the names -- as the significant leak.

On May 18 this year, after a weeklong trial, a panel of seven naval officers
convicted Diaz on four of five counts, including one of disclosing secret
defense information that "could be used to the injury of the United States or to
the advantage of a foreign nation." By then, nearly two and a half years after
Diaz had left Guantanamo, the politics of detention policy had shifted. The
detainees' names had been released under the Freedom of Information Act. The
Supreme Court had ruled against the administration once more, upholding the
minimum standards of the Geneva Conventions and derailing the military
commissions. The president declared that he would like to close Guantanamo as
soon as possible.

Diaz did not testify during the trial. But in a statement to the jurors before
he was sentenced, he sounded overcome by remorse. "I didn't want to make waves
and jeopardize my career," he told the jurors, who could have sent him to prison
for 13 years. "I am disgraced. I am ashamed. I let the Navy down." After three
hours of further deliberation, the jurors issued a notably light sentence of six
months' imprisonment and dismissal from the military.

When we spoke a couple of months later at the brig in Charleston, Diaz was less
contrite. He said he bore no resentment toward Olshansky and the Center for
Constitutional Rights for turning his valentine over to the authorities; in
fact, he was sending the group donations of $25 a month. Looking back, he
insisted that he tried to do the right thing in the wrong way. "There was
nothing else that I could really do," he said. "I could have gone up the chain.
But nothing I said would have ever left the island."

Diaz is reviewing his own trial transcripts now -- as he once reviewed his
father's -- and working on an appeal with the same California lawyer who has
handled his father's appeals. Shortly before his scheduled release from the
Charleston brig this month, he was stripped of his license to practice military
law. He said he is unsure how he will support his family now but that he is
thinking of trying to find work in legal aid, even if he is disbarred as a
civilian lawyer too.

In November 2006, Diaz told me, he flew out to San Francisco alone and drove up
to San Quentin. It was the first time he told his father about the charges he
faced and the risk that he could be sent to prison himself. His father was
pained by what had happened, Diaz said, but also proud that his son had tried to
do what he thought was right.

"He understood," Diaz said.

[ Tim Golden, an investigative reporter for The Times, has been writing about
terrorism and detention issues since 2004. ]

*


Washington Post --

October 20, 2007

EX-PROSECUTOR ALLEGES PENTAGON PLAYS POLITICS
Pressure for 'Sexy' Guantanamo Hearings

by Josh White

http://www.washingtonpost.com/wp-dyn/content/
article/2007/10/20/AR2007102000179.html

Politically motivated officials at the Pentagon have pushed for convictions of
high-profile detainees ahead of the 2008 elections, the former lead prosecutor
for terrorism trials at Guantanamo Bay said last night, adding that the pressure
played a part in his decision to resign earlier this month.

Senior defense officials discussed in a September 2006 meeting the "strategic
political value" of putting some prominent detainees on trial, said Air Force
Col. Morris Davis. He said that he felt pressure to pursue cases that were
deemed "sexy" over those that prosecutors believed were the most solid or were
ready to go.

Davis said his resignation was also prompted by newly appointed senior officials
seeking to use classified evidence in what would be closed sessions of court,
and by almost all elements of the military commissions process being put under
the Defense Department general counsel's command, something he believes could
present serious conflicts of interest.

"There was a big concern that the election of 2008 is coming up," Davis said.
"People wanted to get the cases going. There was a rush to get high-interest
cases into court at the expense of openness."

Davis said he thought the military commissions could go forward as a legitimate
way to try alleged terrorists in U.S. custody, but he said he had serious
concerns about how the new officials were approaching the commissions. He said
he felt a sense of expediency over thoroughness was taking hold and that efforts
to use classified evidence -- a controversial idea that has drawn congressional
concern -- could taint the trials in the eyes of international observers.

Davis abruptly resigned after complaining that his authority in prosecutions was
being usurped. He argued that Air Force Brig. Gen. Thomas Hartmann, a new legal
adviser to the convening authority for military commissions, should remain a
neutral and independent party and should leave prosecuting cases to prosecutors.

In his complaint, Davis alleged that Hartmann inappropriately requested detailed
information on pending cases, defined the sequence in which cases would be
brought forward and expressed an intent to personally conduct pretrial
negotiations with defendants' attorneys.

A Pentagon review found that Hartmann did not attempt to coerce Davis's team but
advised that he should "diligently avoid aligning himself with the prosecutorial
function so that he can objectively and independently provide cogent legal
advice" to the convening authority -- the official in charge of supervising the
commissions.

J.D. Gordon, a Pentagon spokesman, said yesterday that Hartmann was not
available for comment. Gordon said the military commissions will provide
detainees with fair trials.

"We are working closely with our interagency counterparts to ensure that
prosecutions by military commission result in fair and open trials while at the
same time protecting sensitive information that, if revealed, could be damaging
to U.S. and allied forces still conducting combat operations against al-Qaeda
and their supporters," Gordon said.

Hartmann arrived as legal adviser to the convening authority last summer, and
suddenly, Davis said during a lengthy interview, his office was inundated with
what he called "nano-management," including requests to oversee cases that had
previously been left solely to prosecutors.

Part of the new focus, Davis said, was to speed up cases that would show the
public the system was working. Davis said he wanted to focus on cases that had
declassified evidence, so the public could see the entire trial through news
coverage. That would defuse possible allegations that the trials were stacked
against defendants.

But Hartmann said he was satisfied with putting on cases that included closed
sessions, because the law allows it.

"He said, the way we were going to validate the system was by getting
convictions and good sentences," Davis said. "I felt I was being pressured to do
something less than full, fair and open."

*


New York Times --

October 14, 2007

THE 'GOOD GERMANS' AMONG US

by Frank Rich

http://www.nytimes.com/2007/10/14/opinion/14rich2.html

"Bush lies" doesn't cut it anymore. It's time to confront the darker reality
that we are lying to ourselves.

Ten days ago The Times unearthed yet another round of secret Department of
Justice memos countenancing torture. President Bush gave his standard response:
"This government does not torture people." Of course, it all depends on what the
meaning of "torture" is. The whole point of these memos is to repeatedly
recalibrate the definition so Mr. Bush can keep pleading innocent.

By any legal standards except those rubber-stamped by Alberto Gonzales, we are
practicing torture, and we have known we are doing so ever since photographic
proof emerged from Abu Ghraib more than three years ago. As Andrew Sullivan,
once a Bush cheerleader, observed last weekend in The Sunday Times of London,
America's "enhanced interrogation" techniques have a grotesque provenance:
"Verscharfte Vernehmung, enhanced or intensified interrogation, was the exact
term innovated by the Gestapo to describe what became known as the ‘third
degree.' It left no marks. It included hypothermia, stress positions and long-
time sleep deprivation."

Still, the drill remains the same. The administration gives its alibi (Abu
Ghraib was just a few bad apples). A few members of Congress squawk. The debate
is labeled "politics." We turn the page.

There has been scarcely more response to the similarly recurrent story of
apparent war crimes committed by our contractors in Iraq. Call me cynical, but
when Laura Bush spoke up last week about the human rights atrocities in Burma,
it seemed less an act of selfless humanitarianism than another administration
maneuver to change the subject from its own abuses.

As Mrs. Bush spoke, two women, both Armenian Christians, were gunned down in
Baghdad by contractors underwritten by American taxpayers. On this matter, the
White House has been silent. That incident followed the Sept. 16 massacre in
Baghdad's Nisour Square, where 17 Iraqis were killed by security forces from
Blackwater USA, which had already been implicated in nearly 200 other shooting
incidents since 2005. There has been no accountability. The State Department,
Blackwater's sugar daddy for most of its billion dollars in contracts, won't
even share its investigative findings with the United States military and the
Iraqi government, both of which have deemed the killings criminal.

The gunmen who mowed down the two Christian women worked for a Dubai-based
company managed by Australians, registered in Singapore and enlisted as a
subcontractor by an American contractor headquartered in North Carolina. This is
a plot out of "Syriana" by way of "Chinatown." There will be no trial. We will
never find out what happened. A new bill passed by the House to regulate
contractor behavior will have little effect, even if it becomes law in its
current form.

We can continue to blame the Bush administration for the horrors of Iraq -- and
should. Paul Bremer, our post-invasion viceroy and the recipient of a
Presidential Medal of Freedom for his efforts, issued the order that allows
contractors to elude Iraqi law, a folly second only to his disbanding of the
Iraqi Army. But we must also examine our own responsibility for the hideous acts
committed in our name in a war where we have now fought longer than we did in
the one that put Verschärfte Vernehmung on the map.

I have always maintained that the American public was the least culpable of the
players during the run-up to Iraq. The war was sold by a brilliant and fear-
fueled White House propaganda campaign designed to stampede a nation still
shellshocked by 9/11. Both Congress and the press -- the powerful institutions
that should have provided the checks, balances and due diligence of the
administration's case -- failed to do their job. Had they done so, more
Americans might have raised more objections. This perfect storm of democratic
failure began at the top.

As the war has dragged on, it is hard to give Americans en masse a pass. We are
too slow to notice, let alone protest, the calamities that have followed the
original sin.

In April 2004, Stars and Stripes first reported that our troops were using
makeshift vehicle armor fashioned out of sandbags, yet when a soldier complained
to Donald Rumsfeld at a town meeting in Kuwait eight months later, he was
successfully pilloried by the right. Proper armor procurement lagged for months
more to come. Not until early this year, four years after the war's first
casualties, did a Washington Post investigation finally focus the country's
attention on the shoddy treatment of veterans, many of them victims of
inadequate armor, at Walter Reed Army Medical Center and other military
hospitals.

We first learned of the use of contractors as mercenaries when four Blackwater
employees were strung up in Falluja in March 2004, just weeks before the first
torture photos emerged from Abu Ghraib. We asked few questions. When reports
surfaced early this summer that our contractors in Iraq (180,000, of whom some
48,000 are believed to be security personnel) now outnumber our postsurge troop
strength, we yawned. Contractor casualties and contractor-inflicted casualties
are kept off the books.

It was always the White House's plan to coax us into a blissful ignorance about
the war. Part of this was achieved with the usual Bush-Cheney secretiveness,
from the torture memos to the prohibition of photos of military coffins. But the
administration also invited our passive complicity by requiring no shared
sacrifice. A country that knows there's no such thing as a free lunch was all
too easily persuaded there could be a free war.

Instead of taxing us for Iraq, the White House bought us off with tax cuts.
Instead of mobilizing the needed troops, it kept a draft off the table by
quietly purchasing its auxiliary army of contractors to finesse the
overstretched military's holes. With the war's entire weight falling on a small
voluntary force, amounting to less than 1 percent of the population, the rest of
us were free to look the other way at whatever went down in Iraq.

We ignored the contractor scandal to our own peril. Ever since Falluja this
auxiliary army has been a leading indicator of every element of the war's
failure: not only our inadequate troop strength but also our alienation of Iraqi
hearts and minds and our rampant outsourcing to contractors rife with Bush-
Cheney cronies and campaign contributors. Contractors remain a bellwether of the
war's progress today. When Blackwater was briefly suspended after the Nisour
Square catastrophe, American diplomats were flatly forbidden from leaving the
fortified Green Zone. So much for the surge's great "success" in bringing
security to Baghdad.

Last week Paul Rieckhoff, an Iraq war combat veteran who directs Iraq and
Afghanistan Veterans of America, sketched for me the apocalypse to come. Should
Baghdad implode, our contractors, not having to answer to the military chain of
command, can simply "drop their guns and go home." Vulnerable American troops
could be deserted by those "who deliver their bullets and beans."

This potential scenario is just one example of why it's in our national self-
interest to attend to Iraq policy the White House counts on us to ignore. Our
national character is on the line too. The extralegal contractors are both a
slap at the sovereignty of the self-governing Iraq we supposedly support and an
insult to those in uniform receiving as little as one-sixth the pay. Yet it took
mass death in Nisour Square to fix even our fleeting attention on this long-
metastasizing cancer in our battle plan.

Similarly, it took until December 2005, two and a half years after "Mission
Accomplished," for Mr. Bush to feel sufficient public pressure to acknowledge
the large number of Iraqi casualties in the war. Even now, despite his repeated
declaration that "America will not abandon the Iraqi people," he has yet to
address or intervene decisively in the tragedy of four million-plus Iraqi
refugees, a disproportionate number of them children. He feels no pressure from
the American public to do so, but hey, he pays lip service to Darfur.

Our moral trajectory over the Bush years could not be better dramatized than it
was by a reunion of an elite group of two dozen World War II veterans in
Washington this month. They were participants in a top-secret operation to
interrogate some 4,000 Nazi prisoners of war. Until now, they have kept silent,
but America's recent record prompted them to talk to The Washington Post.

"We got more information out of a German general with a game of chess or Ping-
Pong than they do today, with their torture," said Henry Kolm, 90, an M.I.T.
physicist whose interrogation of Rudolf Hess, Hitler's deputy, took place over a
chessboard. George Frenkel, 87, recalled that he "never laid hands on anyone" in
his many interrogations, adding, "I'm proud to say I never compromised my
humanity."

Our humanity has been compromised by those who use Gestapo tactics in our war.
The longer we stand idly by while they do so, the more we resemble those "good
Germans" who professed ignorance of their own Gestapo. It's up to us to wake up
our somnambulant Congress to challenge administration policy every day. Let the
war's last supporters filibuster all night if they want to. There is nothing
left to lose except whatever remains of our country's good name.

*


The Sunday Times (UK) --

October 7, 2007

BUSH'S TORTURERS FOLLOW WHERE THE NAZIS LED

by Andrew Sullivan

http://www.timesonline.co.uk/tol/comment/columnists/
andrew_sullivan/article2602564.ece

I remember that my first response to the reports of abuse and torture at
Guantanamo Bay was to accuse the accusers of exaggeration or deliberate
deception. I didn't believe America would ever do those things. I'd also
supported George W Bush in 2000, believed it necessary to give the president the
benefit of the doubt in wartime, and knew Donald Rumsfeld as a friend.

It struck me as a no-brainer that this stuff was being invented by the far left
or was part of Al-Qaeda propaganda. After all, they train captives to lie about
this stuff, don't they? Bottom line: I trusted the president in a time of war to
obey the rule of law that we were and are defending. And then I was forced to
confront the evidence.

From almost the beginning of the war, it is now indisputable, the Bush
administration made a strong and formative decision: in the absence of good
intelligence on the Islamist terror threat after 9/11, it would do what no
American administration had done before. It would torture detainees to get
information.

This decision was and is illegal, and violates America's treaty obligations, the
military code of justice, the United Nations convention against torture, and US
law. Although America has allied itself over the decades with some unsavoury
regimes around the world and has come close to acquiescing to torture, it has
never itself tortured. It has also, in liberating the world from the evils of
Nazism and communism, and in crafting the Geneva conventions, done more than any
other nation to banish torture from the world. George Washington himself vowed
that it would be a defining mark of the new nation that such tactics, used by
the British in his day, would be anathema to Americans.
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But Bush decided that 9/11 changed all that. Islamists were apparently more
dangerous than the Nazis or the Soviets, whom Americans fought and defeated
without resorting to torture. The decision to enter what Dick Cheney called "the
dark side" was made, moreover, in secret; interrogators who had no idea how to
do these things were asked to replicate some of the methods US soldiers had been
trained to resist if captured by the Soviets or Vietcong.

Classic torture techniques, such as waterboarding, hypothermia, beatings,
excruciating stress positions, days and days of sleep deprivation, and threats
to family members (even the children of terror suspects), were approved by Bush
and inflicted on an unknown number of terror suspects by American officials, CIA
agents and, in the chaos of Iraq, incompetents and sadists at Abu Ghraib. And
when the horror came to light, they denied all of it and prosecuted a few grunts
at the lowest level. The official reports were barred from investigating fully
up the chain of command.

Legally, the White House knew from the start that it was on extremely shaky
ground. And so officials told pliant in-house lawyers to concoct memos to make
what was illegal legal. Their irritation with the rule of law, and their belief
that the president had the constitutional authority to waive it, became a
hallmark of their work.

They redefined torture solely as something that would be equivalent to the loss
of major organs or leading to imminent death. Everything else was what was first
called "coercive interrogation", subsequently amended to "enhanced
interrogation". These terms were deployed in order for the president to be able
to say that he didn't support "torture". We were through the looking glass.

After Abu Ghraib, some progress was made in restraining these torture policies.
The memo defining torture out of existence was rescinded. The Military
Commissions Act was crafted to prevent the military itself from being forced to
violate its own code of justice. But the administration clung to its torture
policies, and tried every legal manoeuvre to keep it going and keep it secret.
Much of this stemmed from the vice-president's office.

Last week The New York Times revealed more. We now know that long after Abu
Ghraib was exposed, the administration issued internal legal memos that asserted
the legality of many of the techniques exposed there. The memos not only gave
legal cover to waterboarding, hypothermia and beating but allowed them in
combination to intensify the effect.

The argument was that stripping a chained detainee naked, pouring water over him
while keeping room temperatures cold enough to induce repeated episodes of
dangerous hypothermia, was not "cruel, inhuman or degrading". We have a log of
such a technique being used at Guantanamo. The victim had to be rushed to
hospital, brought back from death, then submitted once again to "enhanced
interrogation".

George Orwell would have been impressed by the phrase "enhanced interrogation
technique". By relying on it, the White House spokesman last week was able to
say with a straight face that the administration strongly opposed torture and
that "any procedures they use are tough, safe, necessary and lawful".

So is "enhanced interrogation" torture? One way to answer this question is to
examine history. The phrase has a lineage. Verschärfte Verneh-mung, enhanced or
intensified interrogation, was the exact term innovated by the Gestapo to
describe what became known as the "third degree". It left no marks. It included
hypothermia, stress positions and long-time sleep deprivation.

The United States prosecuted it as a war crime in Norway in 1948. The victims
were not in uniform -- they were part of the Norwegian insurgency against the
German occupation -- and the Nazis argued, just as Cheney has done, that this
put them outside base-line protections (subsequently formalised by the Geneva
conventions).

The Nazis even argued that "the acts of torture in no case resulted in death.
Most of the injuries inflicted were slight and did not result in permanent
disablement". This argument is almost verbatim that made by John Yoo, the Bush
administration's house lawyer, who now sits comfortably at the Washington think
tank, the American Enterprise Institute.

The US-run court at the time clearly rejected Cheney's arguments. Base-line
protections against torture applied, the court argued, to all detainees,
including those out of uniform. They didn't qualify for full PoW status, but
they couldn't be abused either. The court also relied on the plain meaning of
torture as defined under US and international law: "The court found it decisive
that the defendants had inflicted serious physical and mental suffering on their
victims, and did not find sufficient reason for a mitigation of the punishment .
. ."

The definition of torture remains the infliction of "severe mental or physical
pain or suffering" with the intent of procuring intelligence. In 1948, in other
words, America rejected the semantics of the current president and his aides.
The penalty for those who were found guilty was death. This is how far we've
come. And this fateful, profound decision to change what America stands for was
made in secret. The president kept it from Congress and from many parts of his
own administration.

Ever since, the United States has been struggling to figure out what to do about
this, if anything. So far Congress has been extremely passive, although last
week's leaks about the secret pro-torture memos after Abu Ghraib forced Arlen
Specter, a Republican senator, to proclaim that the memos "are more than
surprising. I think they are shocking". Yet the public, by and large, remains
indifferent; and all the Republican candidates, bar John McCain and Ron Paul,
endorse continuing the use of torture.

One day America will come back-- the America that defends human rights, the
America that would never torture detainees, the America that leads the world in
barring the inhuman and barbaric. But not until this president leaves office.
And maybe not even then.

*


CNN --

October 10, 2007

CARTER SAYS U.S. TORTURES PRISONERS

http://www.cnn.com/2007/POLITICS/10/10/carter.torture/

WASHINGTON (CNN) -- The United States tortures prisoners in violation of
international law, former President Carter said Wednesday.

"I don't think it. I know it," Carter told CNN's Wolf Blitzer.

"Our country for the first time in my life time has abandoned the basic
principle of human rights," Carter said. "We've said that the Geneva Conventions
do not apply to those people in Abu Ghraib prison and Guantanamo, and we've said
we can torture prisoners and deprive them of an accusation of a crime to which
they are accused."

Carter also said President Bush creates his own definition of human rights.

Carter's comments come on the heels of an October 4 article in The New York
Times disclosing the existence of secret Justice Department memorandums
supporting the use of "harsh interrogation techniques." These include "head-
slapping, simulated drowning and frigid temperatures," according to the Times.

The White House last week confirmed the existence of the documents but would not
make them public.

Responding to the newspaper report Friday, Bush defended the techniques used,
saying, "This government does not torture people."

Asked about Bush's comments, Carter said, "That's not an accurate statement if
you use the international norms of torture as has always been honored --
certainly in the last 60 years since the Universal Declaration of Human Rights
was promulgated.

"But you can make your own definition of human rights and say we don't violate
them, and you can make your own definition of torture and say we don't violate
them." Watch Blitzer's interview with the former president »

After reading a transcript of Carter's remarks, a senior White House official
said, "Our position is clear. We don't torture."

The official said, "It's just sad to hear a former president speak like that."

Carter also criticized some of the 2008 Republican presidential candidates,
calling former New York Mayor Rudy Giuliani "foolish" for his contention the
United States should be open to use force on Iran.

"I hope that he doesn't become president and try to impose his conviction that
we need to go to war with Iran," Carter said.

The Giuliani campaign declined to comment on Carter's criticism.

The former president didn't spare the rest of the GOP field either.

"They all seem to be outdoing each other in who wants to go to war first with
Iran, who wants to keep Guantanamo open longer and expand its capacity -- things
of that kind," Carter said.

"They're competing with each other to appeal to the ultra-right-wing, war-
mongering element in our country, which I think is the minority of our total
population."

Carter declined to say which Republican candidate he feared the most.

"If I condemn one of them, it might escalate him to the top position in the
Republican ranks," he said.

Democratic Sens. Hillary Clinton of New York and Barack Obama of Illinois also
drew Carter's criticism for refusing recently to pledge to withdraw all troops
from Iraq by the end of their first terms if they win the presidency in 2008.

"I disagree with their basic premise that we'll still be there; I think the
American people want out," Carter said. "If there is an unforeseen development
where Iraqi people request American presence over a period of time I think that
would possibly be acceptable, but that's not my personal preference."

[ CNN's Alexander Mooney contributed to this report. ]

*


Newark Star-Ledger --

October 7, 2007

SETON HALL LAW TO THE DEFENSE
School scrutinizes Guantanamo terror jail

By Robert Schwaneberg

http://www.nj.com/starledger/stories/index.ssf?
/base/news-1/1191732084182640.xml&coll=1

It was a Red Cross shelter in Bavaria, Germany. Seton Hall Law School Prof.
Baher Azmy was there to witness the reunion of his 24-year-old client, Murat
Kurnaz, with the family he had not seen in five years.

"The elevator door opened and he appeared. His mother just clutched him and wept
helplessly," Azmy said.

"That was the first time I saw him walk," Azmy added. "The only time I'd seen
him before, he was chained to the floor in a cage."

That cage was an interview cell at Guantanamo Bay, Cuba, where Kurnaz was held
as a suspected "enemy combatant" until the U.S. government released him in
August 2006. About 340 other captives in America's war on terror are still
there.

Since it opened in 2002, the detention center at Guantanamo has drawn worldwide
criticism -- and the ongoing scrutiny of professors and students at Seton Hall
Law School in Newark.

John Gibbons, a retired federal judge who taught law at Seton Hall for 24 years,
won a landmark ruling from the U.S. Supreme Court that prisoners captured in the
war on terror cannot be jailed indefinitely with no chance to assert their
innocence.

Students at the law school have produced an influential series of reports on
Guantanamo. Among their findings: Despite repeated administration assertions
that the Guantanamo terror suspects were the "worst of the worst," only 8
percent were alleged to be al Qaeda fighters, according to declassified U.S.
government documents.

The reports grew out of legal work on behalf of two Guantanamo detainees by
Prof. Mark Denbeaux and his son, Joshua, a lawyer.

The law school has hosted two seminars -- both simulcast via the Internet -- on
conditions at Guantanamo. The most recent, held last month, focused on
interrogation techniques.

"I'm not at all surprised they got heavily involved in this, be cause it's the
major constitutional problem in the country and has been for five years,"
Gibbons said. "I'm not at all surprised that a law school faculty has said: 'We
have to uphold the rule of law.'"

There is no grand plan behind all this activity: no faculty Senate vote adopting
Guantanamo as a special project and parceling out the work. It was simply,
Denbeaux said, that one thing led to another.

Gibbons' victory before the Supreme Court in 2004 meant Guantanamo Bay detainees
had the right to have lawyers. Denbeaux said he had not really thought about
Guantanamo until Joshua asked whether the government had really captured the
worst terrorists and, if so, why none was being brought to trial.

Jailing people indefinitely without a hearing "isn't America," said Joshua
Denbeaux, a 1994 graduate of the law school and partner in the Westwood law firm
of Denbeaux & Denbeaux.

Soon, the professor and his son got themselves appointed counsel to two
Tunisians detained at Guantanamo. After one trip to Cuba cut short by a friend's
funeral, Denbeaux returned to the law school and was greeted by students in his
first-year contracts class volunteering to help. He realized he could use their
assistance analyzing government data on those held at Guantanamo.

"My students were shocked to find out 55 percent of the people are not even
accused of a hostile act," Denbeaux said. One detainee, he continued, had been
conscripted as an assistant cook for the Taliban.

"My students said: 'Where's Mr. Big? We have the assistant cook; we don't even
have the cook,'" Denbeaux said.

Their report was published early in 2006 under the direction of Denbeaux and his
son.

"For the first time, the debate shifted from dry questions of process to the
idea that we had the wrong people," Denbeaux said.

In July, the Combating Terrorism Center at West Point did its own analysis of
the Guantanamo detainees and concluded 73 percent were a "demonstrated threat"
to U.S. or allied forces. Denbeaux's students are working on a reply to the West
Point critique.

Other students are helping to compile a book of stories about the lawyers
representing detainees "and the difficulties they encounter," in the words of
Jillian Camarote, a second-year student working on the project.

Grace Brown, another second-year student assisting Denbeaux, said, "He's just so
passionate about this, and that's what make us so passionate."

The five reports published so far -- more are expected this fall -- have
dissected the perfunctory nature of hearings given to Guantanamo detainees, the
suicides of three of them last year and conflicting U.S. policies on which
foreign organizations pose a terror threat.

The reports have been cited in testimony to Congress and in writ ten arguments
to the U.S. Supreme Court, which has agreed to hear another challenge to
President Bush's anti-terror policies this term. At least one policymaker uses
them as a reality check.

"I've been to Guantanamo, and in some respects I've learned more from the Seton
Hall studies and other sources," said Rep. Rush Holt (D-12th Dist.), who chairs
the House Select Intelligence Oversight Panel. On his visits to the detention
center, Holt said, "I've never felt that I've gotten a straight story."

Azmy got involved with Guantanamo through Gibbons' Newark law firm, which has an
extensive program of taking public interest cases for free. One of the lawyers
there asked Azmy if he would represent a detainee, and he agreed. It led to one
of the great success stories in Guantanamo litigation, the freeing of Azmy's
client, but for reasons that still are not entirely clear.

"There's no sort of rational system that governs Guantanamo as a legal entity.
You can never point to a court order or a jury decision," Azmy said. As best he
can tell, it was "a combination of factors" that led to Kurnaz's release after
four and a half years at Guantanamo.

Kurnaz, then 19, was pulled off a public bus in Pakistan -- where he had gone to
study the Quran -- in November 2001 and ultimately turned over to U.S. forces as
an enemy combatant, Azmy said.

"We were able to demonstrate, I think to the considerable embarrassment of the
U.S. government, not only that he was innocent but that the U.S. knew well of
his innocence as of 2002," Azmy said. But freeing Kurnaz also required get ting
Germany, the country of his birth and his permanent residence, to take him.
Germany initially re fused because Kurnaz is of Turkish descent and is a citizen
of Turkey, Azmy said.

Denbeaux said not everyone supports the law school's work on behalf of
Guantanamo detainees. He recalled one letter from an alumnus who said he would
never again contribute to the school. On the wall of his office hangs a blue
envelope addressed to "Liberal commie P.O.S. Mark Denbeaux." (The P and O stand
for "piece of," the S is unprintable.)

"There's less and less of it," Denbeaux said. "It's hard to find people who say
it's OK to hold people for five years without any kind of hearing."

The school administration, he added, has been "absolutely" supportive "at every
level."

Guantanamo Bay has been compared to what is widely regarded as a bleak chapter
in U.S. constitutional history: the confinement of Japanese-Americans during
World War II and the 1944 U.S. Supreme Court ruling allowing it.

But the legal legacy of Guantanamo is still being written.

"A lot depends," Gibbons said, on how the high court rules in the case it has
scheduled for this term.

"Assuming they don't back down from (their 2004 ruling on the rights of
Guantanamo detainees), the court and the legal establishment will be regarded as
having stood up for the rule of law and against extreme assertions of executive
power," Gibbons said.

If, indeed, that ends up being the judgment of history, a fair share of the
credit will belong to Seton Hall Law School.

[ The Seton Hall Guantanamo reports may be viewed at:

http://law.shu.edu/news/guantanamo_reports.htm ]

*


New York Times --

October 4, 2007

SECRET U.S. ENDORSEMENT OF SEVERE INTERROGATIONS

By Scott Shane, David Johnston and James Risen.

http://www.nytimes.com/2007/10/04/washington/04interrogate.html

WASHINGTON, Oct. 3 -- When the Justice Department publicly declared torture
"abhorrent" in a legal opinion in December 2004, the Bush administration
appeared to have abandoned its assertion of nearly unlimited presidential
authority to order brutal interrogations.

But soon after Alberto R. Gonzales's arrival as attorney general in February
2005, the Justice Department issued another opinion, this one in secret. It was
a very different document, according to officials briefed on it, an expansive
endorsement of the harshest interrogation techniques ever used by the Central
Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit
authorization to barrage terror suspects with a combination of painful physical
and psychological tactics, including head-slapping, simulated drowning and
frigid temperatures.

Mr. Gonzales approved the legal memorandum on "combined effects" over the
objections of James B. Comey, the deputy attorney general, who was leaving his
job after bruising clashes with the White House. Disagreeing with what he viewed
as the opinion's overreaching legal reasoning, Mr. Comey told colleagues at the
department that they would all be "ashamed" when the world eventually learned of
it.

Later that year, as Congress moved toward outlawing "cruel, inhuman and
degrading" treatment, the Justice Department issued another secret opinion, one
most lawmakers did not know existed, current and former officials said. The
Justice Department document declared that none of the C.I.A. interrogation
methods violated that standard.

The classified opinions, never previously disclosed, are a hidden legacy of
President Bush's second term and Mr. Gonzales's tenure at the Justice
Department, where he moved quickly to align it with the White House after a 2004
rebellion by staff lawyers that had thrown policies on surveillance and
detention into turmoil.

Congress and the Supreme Court have intervened repeatedly in the last two years
to impose limits on interrogations, and the administration has responded as a
policy matter by dropping the most extreme techniques. But the 2005 Justice
Department opinions remain in effect, and their legal conclusions have been
confirmed by several more recent memorandums, officials said. They show how the
White House has succeeded in preserving the broadest possible legal latitude for
harsh tactics.

A White House spokesman, Tony Fratto, said Wednesday that he would not comment
on any legal opinion related to interrogations. Mr. Fratto added, "We have gone
to great lengths, including statutory efforts and the recent executive order, to
make it clear that the intelligence community and our practices fall within U.S.
law" and international agreements.

More than two dozen current and former officials involved in counterterrorism
were interviewed over the past three months about the opinions and the
deliberations on interrogation policy. Most officials would speak only on the
condition of anonymity because of the secrecy of the documents and the C.I.A.
detention operations they govern.

When he stepped down as attorney general in September after widespread criticism
of the firing of federal prosecutors and withering attacks on his credibility,
Mr. Gonzales talked proudly in a farewell speech of how his department was "a
place of inspiration" that had balanced the necessary flexibility to conduct the
war on terrorism with the need to uphold the law.

Associates at the Justice Department said Mr. Gonzales seldom resisted pressure
from Vice President Dick Cheney and David S. Addington, Mr. Cheney's counsel, to
endorse policies that they saw as effective in safeguarding Americans, even
though the practices brought the condemnation of other governments, human rights
groups and Democrats in Congress. Critics say Mr. Gonzales turned his agency
into an arm of the Bush White House, undermining the department's independence.

The interrogation opinions were signed by Steven G. Bradbury, who since 2005 has
headed the elite Office of Legal Counsel at the Justice Department. He has
become a frequent public defender of the National Security Agency's domestic
surveillance program and detention policies at Congressional hearings and press
briefings, a role that some legal scholars say is at odds with the office's
tradition of avoiding political advocacy.

Mr. Bradbury defended the work of his office as the government's most
authoritative interpreter of the law. "In my experience, the White House has not
told me how an opinion should come out," he said in an interview. "The White
House has accepted and respected our opinions, even when they didn't like the
advice being given."

The debate over how terrorism suspects should be held and questioned began
shortly after the Sept. 11, 2001, attacks, when the Bush administration adopted
secret detention and coercive interrogation, both practices the United States
had previously denounced when used by other countries. It adopted the new
measures without public debate or Congressional vote, choosing to rely instead
on the confidential legal advice of a handful of appointees.

The policies set off bruising internal battles, pitting administration moderates
against hard-liners, military lawyers against Pentagon chiefs and, most
surprising, a handful of conservative lawyers at the Justice Department against
the White House in the stunning mutiny of 2004. But under Mr. Gonzales and Mr.
Bradbury, the Justice Department was wrenched back into line with the White
House.

After the Supreme Court ruled in 2006 that the Geneva Conventions applied to
prisoners who belonged to Al Qaeda, President Bush for the first time
acknowledged the C.I.A.'s secret jails and ordered their inmates moved to
Guantanamo Bay, Cuba. The C.I.A. halted its use of waterboarding, or pouring
water over a bound prisoner's cloth-covered face to induce fear of suffocation.

But in July, after a monthlong debate inside the administration, President Bush
signed a new executive order authorizing the use of what the administration
calls "enhanced" interrogation techniques -- the details remain secret -- and
officials say the C.I.A. again is holding prisoners in "black sites" overseas.
The executive order was reviewed and approved by Mr. Bradbury and the Office of
Legal Counsel.

Douglas W. Kmiec, who headed that office under President Ronald Reagan and the
first President George Bush and wrote a book about it, said he believed the
intense pressures of the campaign against terrorism have warped the office's
proper role.

"The office was designed to insulate against any need to be an advocate," said
Mr. Kmiec, now a conservative scholar at Pepperdine University law school. But
at times in recent years, Mr. Kmiec said, the office, headed by William H.
Rehnquist and Antonin Scalia before they served on the Supreme Court, "lost its
ability to say no."

"The approach changed dramatically with opinions on the war on terror," Mr.
Kmiec said. "The office became an advocate for the president's policies."

From the secret sites in Afghanistan, Thailand and Eastern Europe where C.I.A.
teams held Qaeda terrorists, questions for the lawyers at C.I.A. headquarters
arrived daily. Nervous interrogators wanted to know: Are we breaking the laws
against torture?

The Bush administration had entered uncharted legal territory beginning in 2002,
holding prisoners outside the scrutiny of the International Red Cross and
subjecting them to harrowing pressure tactics. They included slaps to the head;
hours held naked in a frigid cell; days and nights without sleep while battered
by thundering rock music; long periods manacled in stress positions; or the
ultimate, waterboarding.

Never in history had the United States authorized such tactics. While President
Bush and C.I.A. officials would later insist that the harsh measures produced
crucial intelligence, many veteran interrogators, psychologists and other
experts say that less coercive methods are equally or more effective.

With virtually no experience in interrogations, the C.I.A. had constructed its
program in a few harried months by consulting Egyptian and Saudi intelligence
officials and copying Soviet interrogation methods long used in training
American servicemen to withstand capture. The agency officers questioning
prisoners constantly sought advice from lawyers thousands of miles away.

"We were getting asked about combinations -- ‘Can we do this and this at the
same time?'" recalled Paul C. Kelbaugh, a veteran intelligence lawyer who was
deputy legal counsel at the C.I.A.'s Counterterrorist Center from 2001 to 2003.

Interrogators were worried that even approved techniques had such a painful,
multiplying effect when combined that they might cross the legal line, Mr.
Kelbaugh said. He recalled agency officers asking: "These approved techniques,
say, withholding food, and 50-degree temperature -- can they be combined?" Or
"Do I have to do the less extreme before the more extreme?"

The questions came more frequently, Mr. Kelbaugh said, as word spread about a
C.I.A. inspector general inquiry unrelated to the war on terrorism. Some veteran
C.I.A. officers came under scrutiny because they were advisers to Peruvian
officers who in early 2001 shot down a missionary flight they had mistaken for a
drug-running aircraft. The Americans were not charged with crimes, but they
endured three years of investigation, saw their careers derailed and ran up big
legal bills.

That experience shook the Qaeda interrogation team, Mr. Kelbaugh said. "You
think you're making a difference and maybe saving 3,000 American lives from the
next attack. And someone tells you, ‘Well, that guidance was a little vague, and
the inspector general wants to talk to you,'" he recalled. "We couldn't tell
them, ‘Do the best you can,' because the people who did the best they could in
Peru were looking at a grand jury."

Mr. Kelbaugh said the questions were sometimes close calls that required
consultation with the Justice Department. But in August 2002, the department
provided a sweeping legal justification for even the harshest tactics.

That opinion, which would become infamous as "the torture memo" after it was
leaked, was written largely by John Yoo, a young Berkeley law professor serving
in the Office of Legal Counsel. His broad views of presidential power were
shared by Mr. Addington, the vice president's adviser. Their close alliance
provoked John Ashcroft, then the attorney general, to refer privately to Mr. Yoo
as Dr. Yes for his seeming eagerness to give the White House whatever legal
justifications it desired, a Justice Department official recalled.

Mr. Yoo's memorandum said no interrogation practices were illegal unless they
produced pain equivalent to organ failure or "even death." A second memo
produced at the same time spelled out the approved practices and how often or
how long they could be used.

Despite that guidance, in March 2003, when the C.I.A. caught Khalid Sheikh
Mohammed, the chief planner of the Sept. 11 attacks, interrogators were again
haunted by uncertainty. Former intelligence officials, for the first time,
disclosed that a variety of tough interrogation tactics were used about 100
times over two weeks on Mr. Mohammed. Agency officials then ordered a halt,
fearing the combined assault might have amounted to illegal torture. A C.I.A.
spokesman, George Little, declined to discuss the handling of Mr. Mohammed. Mr.
Little said the program "has been conducted lawfully, with great care and close
review" and "has helped our country disrupt terrorist plots and save innocent
lives."

"The agency has always sought a clear legal framework, conducting the program in
strict accord with U.S. law, and protecting the officers who go face-to-face
with ruthless terrorists," Mr. Little added.

Some intelligence officers say that many of Mr. Mohammed's statements proved
exaggerated or false. One problem, a former senior agency official said, was
that the C.I.A.'s initial interrogators were not experts on Mr. Mohammed's
background or Al Qaeda, and it took about a month to get such an expert to the
secret prison. The former official said many C.I.A. professionals now believe
patient, repeated questioning by well-informed experts is more effective than
harsh physical pressure.

Other intelligence officers, including Mr. Kelbaugh, insist that the harsh
treatment produced invaluable insights into Al Qaeda's structure and plans.

"We leaned in pretty hard on K.S.M.," Mr. Kelbaugh said, referring to Mr.
Mohammed. "We were getting good information, and then they were told: ‘Slow it
down. It may not be correct. Wait for some legal clarification.'"

The doubts at the C.I.A. proved prophetic. In late 2003, after Mr. Yoo left the
Justice Department, the new head of the Office of Legal Counsel, Jack Goldsmith,
began reviewing his work, which he found deeply flawed. Mr. Goldsmith infuriated
White House officials, first by rejecting part of the National Security Agency's
surveillance program, prompting the threat of mass resignations by top Justice
Department officials, including Mr. Ashcroft and Mr. Comey, and a showdown at
the attorney general's hospital bedside.

Then, in June 2004, Mr. Goldsmith formally withdrew the August 2002 Yoo
memorandum on interrogation, which he found overreaching and poorly reasoned.
Mr. Goldsmith left the Justice Department soon afterward. He first spoke at
length about his dissenting views to The New York Times last month, and
testified before the Senate Judiciary Committee on Tuesday.

Six months later, the Justice Department quietly posted on its Web site a new
legal opinion that appeared to end any flirtation with torture, starting with
its clarionlike opening: "Torture is abhorrent both to American law and values
and to international norms."

A single footnote -- added to reassure the C.I.A. -- suggested that the Justice
Department was not declaring the agency's previous actions illegal. But the
opinion was unmistakably a retreat. Some White House officials had opposed
publicizing the document, but acquiesced to Justice Department officials who
argued that doing so would help clear the way for Mr. Gonzales's confirmation as
attorney general.

If President Bush wanted to make sure the Justice Department did not rebel
again, Mr. Gonzales was the ideal choice. As White House counsel, he had been a
fierce protector of the president's prerogatives. Deeply loyal to Mr. Bush for
championing his career from their days in Texas, Mr. Gonzales would sometimes
tell colleagues that he had just one regret about becoming attorney general: He
did not see nearly as much of the president as he had in his previous post.

Among his first tasks at the Justice Department was to find a trusted chief for
the Office of Legal Counsel. First he informed Daniel Levin, the acting head who
had backed Mr. Goldsmith's dissents and signed the new opinion renouncing
torture, that he would not get the job. He encouraged Mr. Levin to take a
position at the National Security Council, in effect sidelining him.

Mr. Bradbury soon emerged as the presumed favorite. But White House officials,
still smarting from Mr. Goldsmith's rebuffs, chose to delay his nomination.
Harriet E. Miers, the new White House counsel, "decided to watch Bradbury for a
month or two. He was sort of on trial," one Justice Department official
recalled.

Mr. Bradbury's biography had a Horatio Alger element that appealed to a
succession of bosses, including Justice Clarence Thomas of the Supreme Court and
Mr. Gonzales, the son of poor immigrants. Mr. Bradbury's father had died when he
was an infant, and his mother took in laundry to support her children. The first
in his family to go to college, he attended Stanford and the University of
Michigan Law School. He joined the law firm of Kirkland & Ellis, where he came
under the tutelage of Kenneth W. Starr, the Whitewater independent prosecutor.

Mr. Bradbury belonged to the same circle as his predecessors: young,
conservative lawyers with sterling credentials, often with clerkships for
prominent conservative judges and ties to the Federalist Society, a powerhouse
of the legal right. Mr. Yoo, in fact, had proposed his old friend Mr. Goldsmith
for the Office of Legal Counsel job; Mr. Goldsmith had hired Mr. Bradbury as his
top deputy.

"We all grew up together," said Viet D. Dinh, an assistant attorney general from
2001 to 2003 and very much a member of the club. "You start with a small
universe of Supreme Court clerks, and you narrow it down from there."

But what might have been subtle differences in quieter times now cleaved them
into warring camps.

Justice Department colleagues say Mr. Gonzales was soon meeting frequently with
Mr. Bradbury on national security issues, a White House priority. Admirers
describe Mr. Bradbury as low-key but highly skilled, a conciliator who brought
from 10 years of corporate practice a more pragmatic approach to the job than
Mr. Yoo and Mr. Goldsmith, both from the academic world.

"As a practicing lawyer, you know how to address real problems," said Noel J.
Francisco, who worked at the Justice Department from 2003 to 2005. "At O.L.C.,
you're not writing law review articles and you're not theorizing. You're giving
a client practical advice on a real problem."

As he had at the White House, Mr. Gonzales usually said little in meetings with
other officials, often deferring to the hard-driving Mr. Addington. Mr. Bradbury
also often appeared in accord with the vice president's lawyer.

Mr. Bradbury appeared to be "fundamentally sympathetic to what the White House
and the C.I.A. wanted to do," recalled Philip Zelikow, a former top State
Department official. At interagency meetings on detention and interrogation, Mr.
Addington was at times "vituperative," said Mr. Zelikow, but Mr. Bradbury, while
taking similar positions, was "professional and collegial."

While waiting to learn whether he would be nominated to head the Office of Legal
Counsel, Mr. Bradbury was in an awkward position, knowing that a decision
contrary to White House wishes could kill his chances.

Charles J. Cooper, who headed the Office of Legal Counsel under President
Reagan, said he was "very troubled" at the notion of a probationary period.

"If the purpose of the delay was a tryout, I think they should have avoided it,"
Mr. Cooper said. "You're implying that the acting official is molding his or her
legal analysis to win the job."

Mr. Bradbury said he made no such concessions. "No one ever suggested to me that
my nomination depended on how I ruled on any opinion," he said. "Every opinion
I've signed at the Office of Legal Counsel represents my best judgment of what
the law requires."

Scott Horton, an attorney affiliated with Human Rights First who has closely
followed the interrogation debate, said any official offering legal advice on
the campaign against terror was on treacherous ground.

"For government lawyers, the national security issues they were deciding were
like working with nuclear waste -- extremely hazardous to their health," Mr.
Horton said.

"If you give the administration what it wants, you'll lose credibility in the
academic community," he said. "But if you hold back, you'll be vilified by
conservatives and the administration."

In any case, the White House grew comfortable with Mr. Bradbury's approach. He
helped block the appointment of a liberal Ivy League law professor to a career
post in the Office of Legal Counsel. And he signed the opinion approving
combined interrogation techniques.

Mr. Comey strongly objected and told associates that he advised Mr. Gonzales not
to endorse the opinion. But the attorney general made clear that the White House
was adamant about it, and that he would do nothing to resist.

Under Mr. Ashcroft, Mr. Comey's opposition might have killed the opinion. An
imposing former prosecutor and self-described conservative who stands 6-foot-8,
he was the rare administration official who was willing to confront Mr.
Addington. At one testy 2004 White House meeting, when Mr. Comey stated that "no
lawyer" would endorse Mr. Yoo's justification for the N.S.A. program, Mr.
Addington demurred, saying he was a lawyer and found it convincing. Mr. Comey
shot back: "No good lawyer," according to someone present.

But under Mr. Gonzales, and after the departure of Mr. Goldsmith and other
allies, the deputy attorney general found himself isolated. His troublemaking on
N.S.A. and on interrogation, and in appointing his friend Patrick J. Fitzgerald
as special prosecutor in the C.I.A. leak case, which would lead to the perjury
conviction of I. Lewis Libby, Mr. Cheney's chief of staff, had irreparably
offended the White House.

"On national security matters generally, there was a sense that Comey was a wimp
and that Comey was disloyal," said one Justice Department official who heard the
White House talk, expressed with particular force by Mr. Addington.

Mr. Comey provided some hints of his thinking about interrogation and related
issues in a speech that spring. Speaking at the N.S.A.'s Fort Meade campus on
Law Day -- a noteworthy setting for the man who had helped lead the dissent a
year earlier that forced some changes in the N.S.A. program -- Mr. Comey spoke
of the "agonizing collisions" of the law and the desire to protect Americans.

"We are likely to hear the words: ‘If we don't do this, people will die,'" Mr.
Comey said. But he argued that government lawyers must uphold the principles of
their great institutions.

"It takes far more than a sharp legal mind to say ‘no' when it matters most," he
said. "It takes moral character. It takes an understanding that in the long run,
intelligence under law is the only sustainable intelligence in this country."

Mr. Gonzales's aides were happy to see Mr. Comey depart in the summer of 2005.
That June, President Bush nominated Mr. Bradbury to head the Office of Legal
Counsel, which some colleagues viewed as a sign that he had passed a loyalty
test.

Soon Mr. Bradbury applied his practical approach to a new challenge to the
C.I.A.'s methods.

The administration had always asserted that the C.I.A.'s pressure tactics did
not amount to torture, which is banned by federal law and international treaty.
But officials had privately decided the agency did not have to comply with
another provision in the Convention Against Torture -- the prohibition on
"cruel, inhuman, or degrading" treatment.

Now that loophole was about to be closed. First Senator Richard J. Durbin,
Democrat of Illinois, and then Senator John McCain, the Arizona Republican who
had been tortured as a prisoner in North Vietnam, proposed legislation to ban
such treatment.

At the administration's request, Mr. Bradbury assessed whether the proposed
legislation would outlaw any C.I.A. methods, a legal question that had never
before been answered by the Justice Department.

At least a few administration officials argued that no reasonable interpretation
of "cruel, inhuman or degrading" would permit the most extreme C.I.A. methods,
like waterboarding. Mr. Bradbury was placed in a tough spot, said Mr. Zelikow,
the State Department counselor, who was working at the time to rein in
interrogation policy.

"If Justice says some practices are in violation of the C.I.D. standard," Mr.
Zelikow said, referring to cruel, inhuman or degrading, "then they are now
saying that officials broke current law."

In the end, Mr. Bradbury's opinion delivered what the White House wanted: a
statement that the standard imposed by Mr. McCain's Detainee Treatment Act would
not force any change in the C.I.A.'s practices, according to officials familiar
with the memo.

Relying on a Supreme Court finding that only conduct that "shocks the
conscience" was unconstitutional, the opinion found that in some circumstances
not even waterboarding was necessarily cruel, inhuman or degrading, if, for
example, a suspect was believed to possess crucial intelligence about a planned
terrorist attack, the officials familiar with the legal finding said.

In a frequent practice, Mr. Bush attached a statement to the new law when he
signed it, declaring his authority to set aside the restrictions if they
interfered with his constitutional powers. At the same time, though, the
administration responded to pressure from Mr. McCain and other lawmakers by
reviewing interrogation policy and giving up several C.I.A. techniques.

Since late 2005, Mr. Bradbury has become a linchpin of the administration's
defense of counterterrorism programs, helping to negotiate the Military
Commissions Act last year and frequently testifying about the N.S.A.
surveillance program. Once he answered questions about administration detention
policies for an "Ask the White House" feature on a Web site.

Mr. Kmiec, the former Office of Legal Counsel head now at Pepperdine, called Mr.
Bradbury's public activities a departure for an office that traditionally has
shunned any advocacy role.

A senior administration official called Mr. Bradbury's active role in shaping
legislation and speaking to Congress and the press "entirely appropriate" and
consistent with past practice. The official, who spoke on the condition of
anonymity, said Mr. Bradbury "has played a critical role in achieving greater
transparency" on the legal basis for detention and surveillance programs.

Though President Bush repeatedly nominated Mr. Bradbury as the Office of Legal
Counsel's assistant attorney general, Democratic senators have blocked the
nomination. Senator Durbin said the Justice Department would not turn over
copies of his opinions or other evidence of Mr. Bradbury's role in interrogation
policy.

"There are fundamental questions about whether Mr. Bradbury approved
interrogation methods that are clearly unacceptable," Mr. Durbin said.

John D. Hutson, who served as the Navy's top lawyer from 1997 to 2000, said he
believed that the existence of legal opinions justifying abusive treatment is
pernicious, potentially blurring the rules for Americans handling prisoners.

"I know from the military that if you tell someone they can do a little of this
for the country's good, some people will do a lot of it for the country's
better," Mr. Hutson said. Like other military lawyers, he also fears that
official American acceptance of such treatment could endanger Americans in the
future.

"The problem is, once you've got a legal opinion that says such a technique is
O.K., what happens when one of our people is captured and they do it to him? How
do we protest then?" he asked.


*


Wall Street Journal --

September 26, 2007

DISPUTE STYMIES GUANTANAMO TERROR TRIALS
Chief Prosecutor Claims Interference; Office Is in Disarray

By Jess Bravin

http://online.wsj.com/article/SB119076761746939436.html

WASHINGTON -- A dispute between the chief Guantanamo Bay prosecutor and a
Pentagon official has roiled the government's system of terrorism trials, the
latest snag in a six-year bid by the Bush administration to establish an
offshore court.

According to people familiar with the matter, the prosecutor, Col. Morris Davis,
has filed a formal complaint alleging that Brig. Gen. Thomas Hartmann, legal
adviser to the administrator overseeing the trials, has overstepped his mandate
by interfering directly in cases.

In a written statement provided to The Wall Street Journal, Col. Davis suggested
that both he and Gen. Hartmann resign "for the good of the process.... If he
believes in military commissions as strongly as I do then let's do the right
thing and both of us walk away before we do more harm."

The dispute between the two Air Force officers has left the prosecution office
in disarray, according to officials familiar with the matter. Prosecutors are
uncertain who is in command and which cases they should pursue. Col. Davis has
refused to file additional charges against Guantanamo inmates until the dispute
is resolved.

The Pentagon's general counsel, William J. Haynes II, appointed Brig. Gen. Butch
Tate, chief judge of the Army Court of Criminal Appeals, to lead an
investigation into the matter. A senior defense official says Gen. Tate's report
has been filed and backs Gen. Hartmann.

Because Gen. Hartmann is the superior officer, "Davis is obliged to heed the
orders of Hartmann whether or not he likes them, so long as they're lawful," the
official said. "And there's no indication that he's issued any unlawful orders."

Through a spokesman, Gen. Hartmann declined to comment.

The tensions may affect the case of Osama bin Laden's former driver, Guantanamo
inmate Salim Hamdan. Gen. Hartmann has suggested to officers he could push for a
plea bargain with Mr. Hamdan, over the objection of trial prosecutors, officials
say. A lawyer representing Mr. Hamdan, retired Lt. Cmdr. Charles Swift, says he
can't discuss whether any plea discussions are under way.

Prosecutors under Col. Davis have focused on cases that rely largely on
unclassified evidence, allowing trials to be open to the press to address
criticism that the process is too secretive. But these cases tend to involve
relatively undramatic charges, such as providing services to a terrorist
organization. Officials say Gen. Hartmann is pushing for cases that could
attract more public attention and perhaps also support for the tribunal system,
even though they may involve closed proceedings.

There is also a thorny legal issue at stake. Under Pentagon regulations, the
chief prosecutor reports to the legal adviser, who is supposed to be impartial.
Col. Davis contends that this structure runs afoul of the 2006 Military
Commissions Act, which bars outside interference in the "professional judgment"
of prosecution and defense lawyers, officials say.

"If someone above me tries to intimidate me in determining who we will charge,
what we will charge, what evidence we will try to introduce, and how we will
conduct a prosecution then I will resign," Col. Davis said in his written
statement.

The conflict is the latest setback to plague the Bush administration's campaign
to create a free-standing court system. Despite President Bush's stated desire
to close Guantanamo Bay, officials haven't reached a consensus about how to
handle people held there. Creating a court from scratch has also proven harder
than many expected.

The Supreme Court is considering whether to hear another challenge to the
commissions, barely a year after it struck down Mr. Bush's first attempt at
setting up such a structure, in part because the plan violated the Geneva
Convention. Congress authorized a modified version to fix these legal failings.
But earlier this year, military trial judges themselves ruled that the
commissions lacked jurisdiction over Guantanamo detainees, a decision that was
reversed Monday by a military appeals court.

The commissions have notched only one conviction, that of David Hicks, who will
be set free in his native Australia at the end of the year as part of a plea
bargain reached in March.

Col. Davis, the third chief prosecutor, was appointed in 2005. He has been a
vigorous public advocate of the commissions, recently publishing an article in
the Yale Law Journal defending their fairness.

Gen. Hartmann, a reservist who in civilian life is general counsel of MXenergy
Holdings Inc., of Stamford, Conn., took office in July as legal adviser to the
commissions' convening authority. That is the military term for the apparatus
that administers the trials. In that role, Gen. Hartmann is supposed to provide
impartial advice to Susan Crawford, a former judge who holds the title of
convening authority.

Among other duties, the convening authority must decide whether charges proposed
by the prosecutors are sufficient to go to trial. Under Pentagon guidelines, the
legal adviser "must make an independent and informed appraisal of the charges
and evidence."

Cully Stimson, the former deputy assistant defense secretary who helped draft
the commission rules, said he didn't anticipate the convening authority's legal
adviser's "meddling in the day-to-day operations of the prosecutor." He added,
however, that the authority can negotiate plea bargains even over the
prosecutor's objection.

The defense "should not be influenced or have the appearance of being influenced
so they can do the best for their client," says Mr. Stimson, now a fellow at the
Heritage Foundation. "The same should be true for the prosecution."

Col. Davis was out of the office recovering from surgery when Gen. Hartmann
quickly took charge of the prosecution office, reviewing cases and directing
staff, officials say.

The disputes haven't focused on the "high value" detainees alleged to be top al
Qaeda commanders. Rather, Gen. Hartmann has criticized the selection of
defendants for the "non-high-value" cases, officials say. He ordered prosecutors
to coin a new name for them that would make them seem more important.

"Gen. Hartmann has voiced complaints that the prosecution remained, after four
years, still unready to try cases," says a lawyer familiar with the situation.
"It's his frustration with their 'can't do' approach."

Prosecutors, in response, say Gen. Hartmann is "micromanaging" cases he doesn't
fully understand.

The case of Mr. Hamdan has struck a particular nerve. Mr. Hamdan is the
defendant whose challenge led to the Supreme Court ruling striking down the
first military commission plan.

Prosecutors say that making a deal with Mr. Hamdan would be a blow to the
government's credibility. "Think of our only other 'success' in this -- David
Hicks," one prosecutor says. "How is that a success for the United States
government? How does that justify Guantanamo?"

Col. Davis's separate complaint with the Pentagon inspector general is still
pending, officials say.

[ Write to Jess Bravin at jess.bravin@wsj.com1 ]

*


Associated Press --

September 21, 2007

US BARS ATTORNEYS' ACCESS TO DETAINEES

By Ben Fox

http://ap.google.com/article/ALeqM5grJR87nPbzo5Bz2_J7hbbwLewe6w

SAN JUAN, Puerto Rico (AP) -- Attorneys for at least 40 Guantanamo Bay prisoners
have been barred from visiting or writing their clients because of a judge's
order dismissing legal challenges to the men's confinement, the U.S. Department
of Justice said Friday.

A Justice Department lawyer informed the attorneys of the new restrictions in an
e-mail that cited Thursday's dismissal of their cases by District Court Judge
Ricardo Urbina in Washington.

"In light of this development, counsel access (both legal mail and in-person
visits) is no longer permitted," Justice Department lawyer Andrew I. Warden said
in the e-mail.

Urbina's ruling, which covered 16 legal petitions filed on behalf of 40-60
detainees, invalidated an order that establishes rules for contact with
detainees, Warden said.

Challenges are still pending for dozens of other detainees with the Supreme
Court set to consider whether Congress had the right to strip the prisoners of
the right to contest their confinement with petitions of habeas corpus.

The Justice Department letter outlined a series of legal steps that would be
required before the attorneys could resume contact with the detainees.

But attorney Wells Dixon said he would most likely not be able to complete those
measures in time for a scheduled visit with a Libyan client in October.

That visit is crucial, Dixon said, because he is in the midst of trying to
prevent the government from transferring the client back to Libya, where his
lawyers fear he will be tortured.

"This is just the latest example of the government's efforts to frustrate
counsel access to detainees," he said.

A Pentagon spokesman, Navy Cmdr. Jeffrey Gordon, said the U.S. was following the
laws that govern the legal rights of Guantanamo detainees and officials were
pleased with Urbina's ruling.

"We have afforded detainees at Guantanamo with greater access to attorneys than
any other combatants in the history of warfare," Gordon said.

The U.S. holds about 340 men at the detention center in Cuba on suspicion of
terrorism or links to al-Qaida or the Taliban. Most of the prisoners have filed
petitions of habeas corpus, a legal challenge to their confinement.

Last year, the U.S. Congress passed the Military Commissions Act, which stripped
all detainees of the right to file habeas petitions -- a fundamental legal right
under the U.S. Constitution. The Supreme Court has said it will consider the law
in its next term.

*


ABC News --

September 14, 2007

CIA BANS WATER-BOARDING IN TERROR INTERROGATIONS
By Brian Ross, Richard Esposito & Martha Raddatz

http://blogs.abcnews.com/theblotter/2007/09/cia-bans-water-.html

The controversial interrogation technique known as water-boarding, in which a
suspect has water poured over his mouth and nose to stimulate a drowning reflex,
has been banned by CIA director Gen. Michael Hayden, current and former CIA
officials tell ABCNews.com. (Image above is an ABC News graphic.)

The officials say Hayden made the decision at the recommendation of his deputy,
Steve Kappes, and received approval from the White House to remove water-
boarding from the list of approved interrogation techniques first authorized by
a presidential finding in 2002.

The officials say the decision was made sometime last year but has never been
publicly disclosed.

One U.S. intelligence official said, "It would be wrong to assume that the
program of the past moved into the future unchanged."

A CIA spokesman said, as a matter of policy, he would decline to comment on
interrogation techniques, "which have been and continue to be lawful," he said.

The practice of water-boarding has been branded as "torture" by human rights
groups and a number of leading U.S. officials, including Sen. John McCain, R-
Ariz., because it amounted to a "mock execution."

Today, in New Hampshire, Sen. McCain told ABC News, "I have sought that result
for years. Water-boarding is a form of torture. And I'm convinced that this will
not only help us in our interrogation techniques, but it will also be helpful
for our image in the world."

While new legislation reportedly gave the CIA the leeway to use water-boarding,
current and former CIA officials said Gen. Hayden decided to take it off the
list of about six "enhanced interrogation techniques."

While welcoming the move, some critics say the CIA did not go far enough.

"I can say it's a good thing, but the fact remains that the entire program is
illegal,"  John Sifton of Human Rights Watch told ABCNews.com.

As a result of the decision, officials say, the most extreme techniques left
available to CIA interrogators would be what is termed "longtime standing,"
which includes exhaustion and sleep deprivation with prisoners forced to stand,
handcuffed with their feet shackled to the floor.

"It is a very severe form of torture which causes tremendous psychic toll to
people," said Sifton.

It is believed that water-boarding was used on fewer than five "high-value"
terrorist subjects, and had not been used for three to four years.

Its most effective use, say current and former CIA officials, was in breaking
Khalid Sheikh Mohammed, known as KSM, who subsequently confessed to a number of
ongoing plots against the United States.

A senior CIA official said KSM later admitted it was only because of the water-
boarding that he talked.

Ultimately, KSM took responsibility for the 9/ll attacks and virtually all other
al Qaeda terror strikes, including the beheading of Wall Street Journal reporter
Daniel Pearl.

"KSM lasted the longest under water-boarding, about a minute and a half, but
once he broke, it never had to be used again," said a former CIA official
familiar with KSM's case.

Kappes' role at the CIA puts him in charge of day-to-day CIA operations.

A career intelligence officer, he left the CIA in disagreement with the
leadership of Porter Goss, the former Republican congressman, who George Bush
chose to replace George Tenet in 2004.

When Goss in turn was replaced in May 2006 by Gen. Hayden as director of Central
Intelligence, he moved quickly to get Kappes to return.

*


New York Times Magazine --

September 9, 2007

CONSCIENCE OF A CONSERVATIVE

By Jeffrey Rosen

http://www.nytimes.com/2007/09/09/magazine/09rosen.html

In the fall of 2003, Jack L. Goldsmith was widely considered one of the
brightest stars in the conservative legal firmament. A 40-year-old law professor
at the University of Chicago, Goldsmith had established himself, with his friend
and fellow law professor John Yoo, as a leading proponent of the view that
international standards of human rights should not apply in cases before U.S.
courts. In recognition of their prominence, Goldsmith and Yoo had been anointed
the "New Sovereigntists" by the journal Foreign Affairs.

Goldsmith had been hired the year before as a legal adviser to the general
counsel of the Defense Department, William J. Haynes II. While at the Pentagon,
Goldsmith wrote a memo for Defense Secretary Donald Rumsfeld warning that
prosecutors from the International Criminal Court might indict American
officials for their actions in the war on terror. Goldsmith described this
threat as "the judicialization of international politics." No one was surprised
when he was hired in October 2003 to head the Office of Legal Counsel, the
division of the Justice Department that advises the president on the limits of
executive power. Immediately, the job put him at the center of critical debates
within the Bush administration about its continuing response to 9/11 -- debates
about coercive interrogation, secret surveillance and the detention and trial of
enemy combatants.

Nine months later, in June 2004, Goldsmith resigned. Although he refused to
discuss his resignation at the time, he had led a small group of administration
lawyers in a behind-the-scenes revolt against what he considered the
constitutional excesses of the legal policies embraced by his White House
superiors in the war on terror. During his first weeks on the job, Goldsmith had
discovered that the Office of Legal Counsel had written two legal opinions --
both drafted by Goldsmith's friend Yoo, who served as a deputy in the office --
about the authority of the executive branch to conduct coercive interrogations.
Goldsmith considered these opinions, now known as the "torture memos," to be
tendentious, overly broad and legally flawed, and he fought to change them. He
also found himself challenging the White House on a variety of other issues,
ranging from surveillance to the trial of suspected terrorists. His efforts
succeeded in bringing the Bush administration somewhat closer to what Goldsmith
considered the rule of law -- although at considerable cost to Goldsmith
himself. By the end of his tenure, he was worn out. "I was disgusted with the
whole process and fed up and exhausted," he told me recently.

After leaving the Office of Legal Counsel, Goldsmith was uncertain about what,
if anything, he should say publicly about his resignation. His silence came to
be widely misinterpreted. After leaving the Justice Department, he accepted a
tenured professorship at Harvard Law School, where he currently teaches. During
his first weeks in Cambridge, in the fall of 2004, some of his colleagues
denounced him for what they mistakenly assumed was his role in drafting the
torture memos. One colleague, Elizabeth Bartholet, complained to a Boston Globe
reporter that the faculty was remiss in not investigating any role Goldsmith
might have played in "justifying torture." "It was a nightmare," Goldsmith told
me. "I didn't say anything to defend myself, except that I didn't do the things
I was accused of."

Now Goldsmith is speaking out. In a new book, "The Terror Presidency," which
will be published later this month, and in a series of conversations I had with
him this summer, Goldsmith has recounted how, from his first weeks on the job,
he fought vigorously against an expansive view of executive power championed by
officials in the White House, including Alberto Gonzales, who was then the White
House counsel and who recently resigned as attorney general, and David
Addington, who was then Vice President Cheney's legal adviser and is now his
chief of staff. Goldsmith says he is not speaking out for the money; though he
received a low six-figure advance for the book, he is, after deducting some
minor expenses, donating the advance and any profits to charity. Nor is he
speaking out because he disagrees with the basic goals of the Bush
administration in the war on terror. "I shared, and I still share, a lot of
their concerns about what we have to do to meet the terrorist threat," he told
me. When I asked whether he thought Gonzales should have resigned and whether
Addington should follow, he demurred. "I was friends with Gonzales and feel very
sorry for him," he said. "We got along really well. I admired and respected
Addington, even when I thought his judgment was crazy. They thought they were
doing the right thing."

Goldsmith told me that he has decided to speak publicly about his battles at the
Justice Department because he hopes that "future presidents and people inside
the executive branch can learn from our mistakes." In his view, American
presidents for the foreseeable future will, like George W. Bush, face enormous
pressure to be aggressive and pre-emptive in taking measures to prevent another
terrorist attack in the United States. At the same time, Goldsmith notes,
everywhere the president looks, critics -- as well as his own lawyers -- are
telling him that pre-emptive actions may violate international law as well as
U.S. criminal law. What, exactly, are the legal limits of executive power in the
post-9/11 world? How should administration lawyers negotiate the conflict
between the fear of attacks and the fear of lawsuits?

In Goldsmith's view, the Bush administration went about answering these
questions in the wrong way. Instead of reaching out to Congress and the courts
for support, which would have strengthened its legal hand, the administration
asserted what Goldsmith considers an unnecessarily broad, "go-it-alone" view of
executive power. As Goldsmith sees it, this strategy has backfired. "They
embraced this vision," he says, "because they wanted to leave the presidency
stronger than when they assumed office, but the approach they took achieved
exactly the opposite effect. The central irony is that people whose explicit
goal was to expand presidential power have diminished it."

I have known Goldsmith since we were at law school together. In addition to
being intellectually curious and having good judgment, he always struck me as a
pragmatic rather than an ideological conservative. Born in 1962 in Memphis,
Goldsmith is the son of a former Miss Teenage Arkansas whose parents ran a
celebrated nightclub. Growing up, he had two stepfathers, one of whom he
describes in the book as "a mob-connected Teamsters executive" who was "Jimmy
Hoffa's right-hand man and for decades a leading suspect in Hoffa's
disappearance." His upbringing seems to have contributed to his down-to-earth
sensibility. After earning degrees at Washington and Lee University and Oxford,
he thrived at Yale Law School, where he developed what he calls "an allergic
reaction to Yale's left-wing jurisprudence and political correctness." He later
clerked for Justice Anthony Kennedy on the Supreme Court and taught law at the
Universities of Virginia and Chicago. He is married, and he and his wife have
two sons.

When Goldsmith was asked, four years ago, to head the Office of Legal Counsel at
the Justice Department, he jumped at the opportunity. Working for the office is
one of the most prestigious jobs in government: former heads and deputies
include the Supreme Court Justices William H. Rehnquist, Antonin Scalia and
Samuel A. Alito Jr. The Office of Legal Counsel interprets all laws that bear on
the powers of the executive branch. The opinions of the head of the office are
binding, except on the rare occasions when they are reversed by the attorney
general or the president.

In the post-9/11 era, the office has played a crucial role in providing legal
cover to jittery bureaucrats fearful that officials in the White House, Defense
and State Departments or the C.I.A. might be prosecuted for their actions in the
war on terror. The Justice Department, after all, is the branch of government
responsible for prosecutions, and its own prosecutors -- as well as independent
counsels -- would be hard pressed to prosecute someone who had relied on the
department's own opinions in good faith. For this reason, the office has two
important powers: the power to put a brake on aggressive presidential action by
saying no and, conversely, the power to dispense what Goldsmith calls "free get-
out-of jail cards" by saying yes. Its opinions, he writes in his book, are the
equivalent of "an advance pardon" for actions taken at the fuzzy edges of
criminal laws.

In the Bush administration, however, the most important legal-policy decisions
in the war on terror before Goldsmith's arrival were made not by the Office of
Legal Counsel but by a self-styled "war council." This group met periodically in
Gonzales's office at the White House or Haynes's office at the Pentagon. The
members included Gonzales, Addington, Haynes and Yoo. These men shared a belief
that the biggest obstacle to a vigorous response to the 9/11 attacks was the set
of domestic and international laws that arose in the 1970s to constrain the
president's powers in response to the excesses of Watergate and the Vietnam War.
(The Foreign Intelligence Surveillance Act of 1978, for example, requires that
executive officials get a warrant before wiretapping suspected enemies in the
United States.) The head of the Office of Legal Counsel in the first years of
the Bush administration, Jay Bybee, had little experience with national-security
issues, and he delegated responsibility for that subject matter to Yoo, giving
him the authority to draft opinions that were binding on the entire executive
branch.

Yoo was a "godsend" to a White House nervous about war-crimes prosecutions,
Goldsmith writes in his book, because his opinions reassured the White House
that no official who relied on them could be prosecuted after the fact. But
Yoo's direct access to Gonzales angered his boss, Attorney General John
Ashcroft, according to Goldsmith. (Neither Ashcroft nor Gonzales responded to
requests for interviews for this article.) Ashcroft, Goldsmith says, felt that
Gonzales and the war council were usurping legal-policy decisions that were
properly entrusted to the attorney general, such as the creation of military
commissions, which Gonzales supported and Ashcroft never liked.

The matter came to a head in the fall of 2003, when Bybee left the Office of
Legal Counsel and Gonzales suggested Yoo as a candidate to lead it. Ashcroft
rejected the suggestion. Yoo then recommended his friend Goldsmith to the White
House as a suitable alternative. Goldsmith interviewed with Ashcroft at the
Justice Department and with Gonzales and Addington at the White House. In his
interview with Addington and Gonzales, Goldsmith recalls talking about the
dangers of international law and the importance of military commissions. He got
the job.

Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he
received a phone call from Gonzales: the White House needed to know as soon as
possible whether the Fourth Geneva Convention, which describes protections that
explicitly cover civilians in war zones like Iraq, also covered insurgents and
terrorists. After several days of study, Goldsmith agreed with lawyers in
several other federal agencies, who had concluded that the convention applied to
all Iraqi civilians, including terrorists and insurgents. In a meeting with
Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later,
Goldsmith drove from the Justice Department to the White House for a meeting
with Gonzales and Addington. Goldsmith remembers his deputy Patrick Philbin
turning to him in the car and saying: "They're going to be really mad. They're
not going to understand our decision. They've never been told no." (Philbin
declined to discuss the conversation.)

In his book, Goldsmith describes Addington as the "biggest presence in the room
-- a large man with large glasses and an imposing salt-and-pepper beard" who was
"known throughout the bureaucracy as the best-informed, savviest and most
conservative lawyer in the administration, someone who spoke for and acted with
the full backing of the powerful vice president, and someone who crushed
bureaucratic opponents." When Goldsmith presented his analysis of the Geneva
Conventions at the White House, Addington, according to Goldsmith, became livid.
"The president has already decided that terrorists do not receive Geneva
Convention protections," Addington replied angrily, according to Goldsmith. "You
cannot question his decision." (Addington declined to comment on this and other
details concerning him in this article.)

Goldsmith then explained that he agreed with the president's determination that
detainees from Al Qaeda and the Taliban weren't protected under the Third Geneva
Convention, which concerns the treatment of prisoners of war, but that different
protections were at issue with the Fourth Geneva Convention, which concerns
civilians. Addington, Goldsmith says, was not persuaded. (Goldsmith told me that
he has checked his recollections of this and other meetings with at least one
other participant or with someone to whom he described the meetings soon after.)

Months later, when Goldsmith tried to question another presidential decision,
Addington expressed his views even more pointedly. "If you rule that way,"
Addington exclaimed in disgust, Goldsmith recalls, "the blood of the hundred
thousand people who die in the next attack will be on your hands."

The conflict over the Geneva Conventions was just the beginning. About six weeks
after he started work, Goldsmith became aware that there might be what he calls
"potentially problematic" opinions drafted by the Office of Legal Counsel. These
were the "torture memos," one of which was written in August 2002 and the other
in March 2003. The August opinion defined torture as pain "equivalent in
intensity to the pain accompanying serious physical injury, such as organ
failure, impairment of bodily function or even death." Goldsmith concluded that
this opinion defined torture far too narrowly. He also had concerns about the
March 2003 opinion, the contents of which remain classified but which dealt with
the military interrogation of aliens held outside the United States.

Goldsmith told me that he objected to what he calls the "extremely broad and
unnecessary analysis of the president's commander in chief power" in the memos.
The August opinion, for example, boldly concluded that "any effort by Congress
to regulate the interrogation of battlefield combatants would violate the
Constitution's sole vesting of the Commander in Chief authority in the
President." Goldsmith says he believed at the time, and still does, that "this
extreme conclusion" would call into question the constitutionality of federal
laws that limit interrogation, like the War Crimes Act of 1996, which prohibits
grave breaches of the Geneva Conventions, and the Uniform Code of Military
Justice, which prohibits cruelty and maltreatment. He also found the tone of
both opinions "tendentious" rather than cautious and feared that they might be
interpreted as an attempt to immunize government officials for genuinely bad
acts.

Yoo has acknowledged drafting the August 2002 memo, which he says was the basis
for the interrogation of Abu Zubaydah, a top Al Qaeda operative. Yoo also wrote
and signed the March 2003 opinion. His friendship with Goldsmith made it
especially awkward for Goldsmith to criticize the memos. "I was basically taking
steps to fix the mistakes of a close friend, who I knew would be mad about it,"
Goldsmith told me. "We don't talk anymore, and that's one of the many sad things
about my time in government."

In December 2003, Goldsmith decided that he had to withdraw the March opinion --
that is, he had to tell administration officials that they could no longer rely
on it. "But figuring out how to withdraw it was very tricky," he told me, "since
withdrawal would frighten everyone who relied on the opinions in a very
sensitive area." In the past, the Office of Legal Counsel had occasionally
changed its legal positions between presidential administrations to reflect
different legal philosophies, but Goldsmith could find no precedent for the
office withdrawing an opinion drafted earlier by the same administration --
especially on a matter of such importance. Goldsmith concluded that he could
immediately tell the Defense Department to stop relying on the March opinion,
since he was confident that it was not needed to justify the 24 interrogation
techniques the department was actually using, including two called "Fear Up
Harsh" and "Pride and Ego Down," which were designed to make subjects nervous
without crossing the line into coercion. But the withdrawal of the August
opinion was a much harder call. The August opinion provided the legal foundation
for the C.I.A.'s interrogation program, Goldsmith says, which he considered much
closer to the legal line. (He refused to discuss the details of the program.)

Goldsmith, however, says he didn't have the time or resources to create a
replacement opinion immediately. In his initial months on the job, his attention
was focused on the more pressing matter of addressing legal issues surrounding
the terrorist-surveillance program. In April 2004, however, Goldsmith's
priorities were reversed when the Abu Ghraib scandal broke. Then, in June of
that year, Yoo's August 2002 opinion was leaked to the media. "After the leak,
there was a lot of pressure on me within the administration to stand by the
opinion," Goldsmith told me, "and the problem was that I had decided six months
earlier that I couldn't stand by the opinion."

A week after the leak of Yoo's August 2002 memo, Goldsmith withdrew the opinion.
Goldsmith made the decision himself, in consultation with Philbin and Deputy
Attorney General James B. Comey, both of whom, Goldsmith says, agreed it was the
right thing to do. He then told Ashcroft, who was, Goldsmith writes,
"unbelievably magnanimous: it had happened on his watch, and he could have
overruled me, and he didn't." Goldsmith was concerned, however, that the White
House might overrule him. So he made a strategic decision: on the same day that
he withdrew the opinion, he submitted his resignation, effectively forcing the
administration to choose between accepting his decision and letting him leave
quietly, or rejecting it and turning his resignation into a big news story. "If
the story had come out that the U.S. government decided to stick by the
controversial opinions that led the head of the Office of Legal Counsel to
resign, that would have looked bad," Goldsmith told me. "The timing was designed
to ensure that the decision stuck."

Again, according to Goldsmith, Addington was furious. During his brief time in
office, Goldsmith had withdrawn not only the two torture opinions but also
others. (He refused to discuss the other opinions with me.) In the end, he says,
he had withdrawn more opinions than any of his predecessors. Shortly before he
resigned, Goldsmith says, Addington confronted him in Gonzales's office, pulling
out of his jacket pocket a 3-by-5 card that listed the withdrawn opinions.
"Since you've withdrawn so many legal opinions that the president and others
have been relying on," Addington said, according to Goldsmith, "we need you to
... let us know which [of the remaining] ones you still stand by." Goldsmith
recalls that Gonzales, in his own farewell chat with him, said, "I guess those
opinions really were as bad as you said."

Looking back, Goldsmith says, he criticizes but does not vilify Yoo, whom he
believes wrote and defended the opinions in good faith. Praising Yoo's
"knowledge, intelligence and energy," he writes in his book that "the poor
quality of a handful of very important opinions is probably attributable to some
combination of the fear that pervaded the executive branch, pressure from the
White House and Yoo's unusually expansive and self-confident conception of
presidential power."

I have known Yoo since we were in law school together as well, and I called him
for a response. "I think Jack and I had a good-faith disagreement, but I think
at some level this was elevating form over substance," he said. Yoo said that in
writing the torture memo, he experienced no pressure from the White House, which
he described as "hands off." Instead, he said, "there was an urgency to decide
so that valuable intelligence could be acquired from Abu Zubaydah, before
further attacks could occur." Yoo says it is his understanding that no policies
or interrogation techniques changed as a result of the withdrawal of the torture
memo, noting that all policies that were legal under the withdrawn opinions are
also acknowledged as legal under the opinion that eventually replaced the
withdrawn ones. (That opinion was issued in December 2004, six months after
Goldsmith's resignation, and was signed by Daniel Levin, his acting successor as
head of the Office of Legal Counsel.)

Yoo also rejects the criticism that his reasoning was unnecessarily broad,
describing the criticism of his opinion as something that could have been made
only with the benefit of hindsight. "You can claim it's too broad after the
policy has been decided on, but I didn't have that luxury in the spring of
2002," he told me. "If you're providing the legal advice before they choose the
policy, how could you know?" {{!!!}}

Goldsmith puts the bulk of the responsibility for the excesses of the Office of
Legal Counsel on the White House. "I probably had a hundred meetings with
Gonzales, and there was only one time I was talking about a national-security
issue when Addington wasn't there," Goldsmith told me. "My conflicts were all
with Addington, who was a proxy for the vice president. They were very, very
stressful."

During his tenure at the Office of Legal Counsel, Goldsmith also clashed with
Addington over the detention and trial of suspected terrorists. In January 2004,
the Supreme Court agreed to review a lower-court decision approving the
detention of Yaser Hamdi, an American citizen then being held as an enemy
combatant. A group of administration lawyers including Goldsmith met with
Gonzales and Addington in Gonzales's office to discuss the implications of the
case. "Why don't we just go to Congress and get it to sign off on the whole
detention program?" Goldsmith recalls asking, reasoning that the Supreme Court
would be less likely to strike down a detention program in wartime if Congress
had explicitly supported it. According to Goldsmith, Addington shot down the
idea.

Not long before Goldsmith left, the Supreme Court approved in June 2004, in the
Hamdi case, the detention power itself but put some modest restrictions on the
administration's ability to detain citizens without trial. Afterward, Gonzales,
Addington, Goldsmith and others, including the deputy solicitor general, Paul
Clement, met again, Goldsmith recalls, and he and Clement again proposed going
to Congress to put the administration's legal strategy on a more sound footing.
Once again, Goldsmith told me, the advice was ignored, and the White House
continued to operate as if it assumed it could avoid a strong rebuke from the
Supreme Court.

That rebuke finally arrived, however, last year in the Hamdan case, when the
Supreme Court rejected the administration's claim that it could try suspected
terrorists in military commissions created without Congressional approval. In a
further blow to the administration, the court held that the legal protections of
"common article 3" of the Geneva Conventions, which contains minimal protections
for detainees in wartime, also applied in the war against Al Qaeda. Goldsmith
says he believes this ruling was "legally erroneous" but "hugely consequential."
It provided detainees at Guantanamo with more rights than the administration had
ever acknowledged, and it implied that the War Crimes Act might be used to
prosecute administration officials for their treatment of detainees.

In debates over the detention of suspected terrorists, Goldsmith says he was
struck by how Addington's efforts to expand presidential power ultimately
weakened it. In September 2006, two months before the midterm elections, Bush
eventually did ask Congress to approve his military commissions, and Congress
promptly passed a law that gave him everything he asked for, authorizing many
aspects of the military commissions that the Supreme Court had struck down.
Although Bush had won the battle, Goldsmith sees the refusal to go to Congress
earlier as the cause of an unnecessary Supreme Court defeat. "I'm not a civil
libertarian, and what I did wasn't driven by concerns about civil liberties per
se," he told me. "It was a disagreement about means, not ends, driven by a
desire to make sure that the administration's counterterrorism policies had a
firm legal foundation."

In Goldsmith's estimation, the unnecessary unilateralism of the Bush
administration reached its apex in the controversy over wiretapping and secret
surveillance. Goldsmith says he did not originally intend to mention the
surveillance controversy in his book. But he says he was infuriated, soon before
finishing his manuscript, to be handed a subpoena in Cambridge by F.B.I. agents
ordering him to testify in a criminal investigation into the leaks that resulted
in stories by James Risen and Eric Lichtblau in The New York Times about the
National Security Agency's warrentless wiretapping. After having a public
conversation with the F.B.I. in the middle of Harvard Square about aspects of
the terrorist-surveillance program, Goldsmith concluded he could discuss the
same topics in his book.

Goldsmith emphasizes that he was not opposed to investigating the leak, which he
agreed with President Bush did "great harm to the nation." In addition, he
shared the White House's concern that the Foreign Intelligence Surveillance Act
might prevent wiretaps on international calls involving terrorists. But
Goldsmith deplored the way the White House tried to fix the problem, which was
highly contemptuous of Congress and the courts. "We're one bomb away from
getting rid of that obnoxious [FISA] court," Goldsmith recalls Addington telling
him in February 2004.

In his book, Goldsmith claims that Addington and other top officials treated the
Foreign Intelligence Surveillance Act the same way they handled other laws they
objected to: "They blew through them in secret based on flimsy legal opinions
that they guarded closely so no one could question the legal basis for the
operations," he writes. Goldsmith's first experienced this extraordinary
concealment, or "strict compartmentalization," in late 2003 when, he recalls,
Addington angrily denied a request by the N.S.A.'s inspector general to see a
copy of the Office of Legal Counsel's legal analysis supporting the secret
surveillance program. "Before I arrived in O.L.C., not even N.S.A. lawyers were
allowed to see the Justice Department's legal analysis of what N.S.A. was
doing," Goldsmith writes.

Goldsmith also witnessed perhaps the most well-known confrontation over the
administration's aggressive tactics: the scene at Ashcroft's hospital bed on
March 10, 2004, when Gonzales and Andrew Card, the White House chief of staff,
visited the hospital to demand that the ailing Ashcroft approve, over Goldsmith
and Comey's objections, a secret program that was about to expire. (Goldsmith
refuses to identify the program, but Robert S. Mueller III, the F.B.I. director,
has publicly indicated it was the terrorist surveillance program.) As he
recalled it to me, Goldsmith received a call in the evening from his deputy,
Philbin, telling him to go to the George Washington University Hospital
immediately, since Gonzales and Card were on the way there. Goldsmith raced to
the hospital, double-parked outside and walked into a dark room. Ashcroft lay
with a bright light shining on him and tubes and wires coming out of his body.

Suddenly, Gonzales and Card came in the room and announced that they were there
in connection with the classified program. "Ashcroft, who looked like he was
near death, sort of puffed up his chest," Goldsmith recalls. "All of a sudden,
energy and color came into his face, and he said that he didn't appreciate them
coming to visit him under those circumstances, that he had concerns about the
matter they were asking about and that, in any event, he wasn't the attorney
general at the moment; Jim Comey was. He actually gave a two-minute speech, and
I was sure at the end of it he was going to die. It was the most amazing scene
I've ever witnessed."

After a bit of silence, Goldsmith told me, Gonzales thanked Ashcroft, and he and
Card walked out of the room. "At that moment," Goldsmith recalled, "Mrs.
Ashcroft, who obviously couldn't believe what she saw happening to her sick
husband, looked at Gonzales and Card as they walked out of the room and stuck
her tongue out at them. She had no idea what we were discussing, but this sweet-
looking woman sticking out her tongue was the ultimate expression of
disapproval. It captured the feeling in the room perfectly."

Goldsmith, Comey, Mueller and other Justice Department officials were prepared
to resign en masse if the White House implemented the program over their
objections. Two days later, Comey had a conversation at the White House with
Bush in which the president told him to do whatever was necessary to make the
program legal. And in the end, the entire controversy was arguably unnecessary
since the program was eventually approved by Congress and brought, at least
partially, under the supervision of the FISA Court, as it could have been from
the beginning. "I was sure the government was going to melt down," Goldsmith
told me. "No one anticipated they were going to reverse themselves."

The heroes of Goldsmith's book -- his historical models of presidential
leadership in wartime -- are Presidents Lincoln and Franklin D. Roosevelt. Both
of them, as Arthur Schlesinger noted in his essay "War and the Constitution,"
"were lawyers who, while duly respecting their profession, regarded law as
secondary to political leadership." In Goldsmith's view, an indifference to the
political process has ultimately made Bush a less effective wartime leader than
his greatest predecessors. Surprisingly, Bush, who is not a lawyer, allowed far
more legalistic positions in the war on terror to be adopted in his name,
without bothering to try to persuade Congress and the public that his positions
were correct. "I don't know if President Bush understood how extreme some of the
arguments were about executive power that some people in his administration were
making," Goldsmith told me. "It's hard to know how he would know."

The Bush administration's legalistic "go-it-alone approach," Goldsmith suggests,
is the antithesis of Lincoln and Roosevelt's willingness to collaborate with
Congress. Bush, he argues, ignored the truism that presidential power is the
power to persuade. "The Bush administration has operated on an entirely
different concept of power that relies on minimal deliberation, unilateral
action and legalistic defense," Goldsmith concludes in his book. "This approach
largely eschews politics: the need to explain, to justify, to convince, to get
people on board, to compromise."

Goldsmith says he remains convinced of the seriousness of the terrorist threat
and the need to take aggressive action to combat it, but he believes, quoting
his conservative Harvard Law colleague Charles Fried, that the Bush
administration "badly overplayed a winning hand." In retrospect, Goldsmith told
me, Bush "could have achieved all that he wanted to achieve, and put it on a
firmer foundation, if he had been willing to reach out to other institutions of
government." Instead, Goldsmith said, he weakened the presidency he was so
determined to strengthen. "I don't think any president in the near future can
have the same attitude toward executive power, because the other institutions of
government won't allow it," he said softly. "The Bush administration has
borrowed its power against future presidents."

[ Jeffrey Rosen, a law professor at George Washington University, is a frequent
contributor to the magazine. He is the author most recently of "The Supreme
Court: The Personalities and Rivalries That Defined America." ]

*


Washington Post --

September 2, 2007

A FATE WORSE THAN GUANTANAMO

By Jennifer Daskal

http://www.washingtonpost.com/wp-dyn/content/
article/2007/08/31/AR2007083101463.html

TUNIS -- In mid-June, a group of U.S. soldiers entered the cells of Abdullah al-
Hajji and Lofti Lagha at Guantanamo Bay, Cuba, where they had been held without
charge for five years. The Americans cuffed the detainees' hands, shackled their
ankles, muffed their ears and blindfolded them before loading them onto a
military plane for the flight home.

For most of the 360 detainees still at the U.S. military prison, that would have
been a joyous journey. But Hajji and Lagha are from Tunisia, a country that
State Department reports say uses sleep deprivation, electric shocks,
waterboarding, cigarette burns, beatings and prolonged suspension by the wrists
to extract confessions and stifle opposition.

Eight weeks later, the two men are being held in a Tunisian prison, telling
visitors that things are so bad they would rather be back at Guantanamo Bay.

For five days in July, I crisscrossed this steamy capital, trying to learn the
fate of these men. I met with local activists, lawyers, government officials and
families of Guantanamo detainees. Plainclothes cops followed me around, giving
themselves away with their deep stares and white SUVs. While I was unable to
meet with Hajji or Lagha, I talked to others who had.

The problem goes beyond these two men. Since 9/11, the United States has been
using Guantanamo Bay as a dumping ground for suspected jihadists. As pressure
mounts to shut it down -- even Defense Secretary Robert M. Gates has said he
would like to see it closed -- efforts to winnow down its population are now in
high gear. In July, the Bush administration said that 80 detainees were slated
for release or transfer; that number has now jumped to 150.

For most of these detainees, this is good news. But about 50 men have told their
lawyers that they fear torture and other abuse so acutely that they do not want
to be returned home. These detainees -- citizens of Algeria, China, Libya,
Tunisia and Uzbekistan, all countries the United States has accused of
mistreating prisoners -- present yet another obstacle to closing Guantanamo Bay.

In some cases, Washington has recognized these fears as legitimate. Eight of the
detainees (five Chinese Uighurs, an Algerian, an Egyptian and a Russian) were
sent to Albania rather than to their countries of origin. This isn't an ideal
solution -- the men are now living apart from their families in a refugee camp
in an impoverished country where they don't speak the language and can't find
jobs -- but it is better than continued detention at Guantanamo Bay and a
forcible return to a country that tortures. The United States is still trying to
find a third-party country to accept the remaining 17 Uighurs held at the
prison, some of whom have been accused of waging an on-again, off-again
separatist struggle against China's central government.

But in other cases, the Bush administration has claimed that it can negotiate
away the risk of torture by getting promises of humane treatment from the
receiving country. The Tunisian government gave such assurances before Hajji and
Lagha were transferred. And State Department officials are reportedly in the
final stage of negotiating such deals with Algeria. But what protection can
"diplomatic assurances" provide from countries that have done little to clean up
their acts after years of U.S. protests?

The cases of Hajji and Lagha provide scant comfort. Hajji, a 51-year-old father
of eight, says he left Tunisia with his family in 1990 because of religious
persecution, traveled to Saudi Arabia, then settled in Pakistan in 1991. Lagha,
a 38-year-old from a remote village in southern Tunisia, left in 1998, traveling
first to Italy and settling in Pakistan in 2001. Both were arrested by Pakistani
authorities and handed over to the Americans in 2002. Neither was ever charged
with a crime, and on June 18, 2007, after five years in U.S. custody, they were
passed off to Tunisian authorities -- the first of 12 Tunisians at Guantanamo
Bay to be sent home.

Hajji told his local lawyer that the Tunisian government's first act of welcome
was to replace their blindfolds, which are used in transporting detainees, with
hoods. The account I gathered about what happened to Hajji during his first days
back home tracks closely with widely known practices of the Tunisian police. He
endured two long days of interrogations at the Ministry of Interior, where Hajji
says he was slapped, threatened with the rape of his wife and daughters, and
shaken awake every time he started to sleep. In the end, the threats to Hajji's
family were more than he could take: He told his lawyer that he signed the paper
that officials thrust at him, even though his eyes had deteriorated so badly and
his glasses were so old that he had no idea what it said.

Hajji's next stop was a Tunisian military court. This court had tried him in
absentia and sentenced him to 10 years in 1995 on suspicion of belonging to a
terrorist organization operating abroad. The case against him relied primarily
on a statement from one of Hajji's 19 co-defendants, who claimed that Hajji had
been associated with the Tunisian Islamic Front in Pakistan -- a statement that
Hajji's lawyer says was probably given after torture and abuse. Hajji says that
neither the Tunisians nor the Americans ever told him about this conviction
before sending him home; had he known about it, he adds, he never would have
wanted to return. (Hajji's U.S. lawyer, who also learned of the conviction only
recently, went to Guantanamo Bay to try to warn his client about it, but Hajji
was whisked away to Tunisia before the lawyer could do so.)

For the next six weeks, Hajji was held in solitary confinement in a windowless,
unventilated cell that he called his "tomb." He was allowed just 15 minutes of
recreation per day, in another windowless room. Hajji told visitors that he
never knew what time it was -- not even when to pray. He had, I'm told, no
contact with any other prisoners.

In fact, the Tunisian government had disavowed such solitary confinement in 2005
as cruel and outmoded. "It's illegal!" exclaimed Hajji's overworked defense
lawyer, producing a tattered copy of the Tunisian Criminal Code and pointing
excitedly to the provision that permits solitary confinement only for punitive
purposes and not for more than 10 days.

Both his lawyer and the International Committee of the Red Cross have been able
to visit Hajji. His family members, who are allowed one 15-minute visit per
week, must report the content of their conversations to police as soon as they
leave the prison.

Less is known about Lagha, who had no legal representation during his more than
five years at Guantanamo Bay. He returned on the same flight as Hajji. Since
June 21, I'm told, he has been facing charges of participating in a terrorist
organization abroad, but he was not given access to a lawyer until Aug. 9. He
told his new attorney that he had been moved out of solitary confinement only
two days before the lawyer's visit.

Two of Lagha's brothers made the long trip from the family home in southern
Tunisia to the capital to see him while I was there. They had thought that their
brother was dead, they told me, and hadn't even known he was being held at
Guantanamo Bay until they learned of his release on al-Arabiya TV.

I asked Robert F. Godec, the U.S. ambassador to Tunisia, what the Bush
administration is doing to track the two men's cases. He said that he had
"specific and credible" assurances from the Tunisian government that they would
not be abused, adding that "we follow up on these assurances." But he would not
say whether the treatment of Hajji and Lagha had lived up to Tunisia's pledges;
nor would he say whether any U.S. official had met with the two since their
return home. This is disturbing: All we have are promises from a notoriously
abusive regime, yet U.S. officials will not even say whether they are following
up on those assurances by talking to the detainees themselves.

My organization, Human Rights Watch, has long urged the Bush administration to
close Guantanamo Bay. As we continue to hope for an end to this chapter, we must
remember that the United States is expressly prohibited under international law
-- in the form of the 1984 Convention Against Torture -- from forcibly sending
anyone back to a country where there are substantial grounds for believing they
would be tortured.

Haphazardly shipping detainees such as Hajji and Lagha to countries with widely
known records of torture is hardly the way to go about closing Guantanamo Bay.
The administration could shut down the camp responsibly by alerting the
detainees and their lawyers about pending home-country returns and giving them
an opportunity to challenge such transfers, including the reliability of any
diplomatic assurances of humane treatment, before a federal court. Most
Guantanamo detainees won't want to do anything to slow their return home, but
such a process would add an invaluable protection for those who can demonstrate
a credible fear of torture or abuse back home.

Guantanamo Bay needs to be emptied, but it must be done justly and humanely.
Otherwise, Washington could end up condemning the detainees to a fate worse than
Guantanamo. This would only further fray the tattered global reputation that the
United States so desperately needs to repair.

jennifer.daskal@hrw.org

[ Jennifer Daskal is senior counterterrorism counsel at Human Rights Watch. ]

*


U.S. News & World Report --

August 30, 2007

JUSTICE DEPARTMENT LAWYERS REFUSE DETAINEE CASES
Some lawyers in the civil appeals division object
to the government's policies on Guantanamo Bay

By Emma Schwartz

http://www.usnews.com/articles/news/national/2007/08/30/
justice-department-lawyers-refuse-detainee-cases.html

The government's legal arguments justifying the detention of hundreds of people
at the Guantanamo Bay naval base have been repudiated three times by the U.S.
Supreme Court. But it's not just outsiders who take issue with the U.S. Justice
Department strategy: Up to one fourth of the department's own civil appellate
staff has recently opted out of handling the government's cases against detainee
appeals, two sources familiar with the matter tell U.S. News.

These conscientious objectors -- their exact number is not known -- have decided
not to take part in the government's litigation against the detainees because of
disagreements with the legal approach, these sources say. They would not
elaborate on the specific reasons for the objections, but critics have long
objected to the government's failure to formally charge detainees and have
pushed for closing Guantanamo because of allegations of torture and inhumane
conditions. Defense lawyers also contend that the government has stymied their
cases by withholding documents and curbing client access.

The quiet rebellion has emerged in recent months among the approximately 56
attorneys in the appellate section of the Justice Department's civil division
following a court ruling in February that placed the defense of the
approximately 130 remaining Guantanamo cases under the responsibility of the
appellate lawyers. More than 300 men captured shortly after the U.S. invasion of
Afghanistan in 2001 are still being held at Guantanamo over alleged ties to
terrorists, although all but a handful have never been formally charged with
crimes.

Though the objectors have created some tension among the appellate staff, it's
unclear that their opposition has hampered the government's efforts --
especially because the court ruling will be reviewed by the Supreme Court this
term. But the staff attorneys' objections highlight how dissension has grown
even within the department's own ranks.

Justice Department spokesperson Charles Miller declined comment.

The Justice Department has no formal policy allowing attorneys to opt out of
certain cases, unlike some law firms that make clear they won't penalize
associates who, for instance, choose not to defend tobacco companies. But,
informally, attorneys have rejected certain types of cases.

Most famously, in 1982, then Deputy Solicitor General Lawrence Wallace signed
off on a brief in Bob Jones University v. United States but in a footnote noted
his opposition to the department's position. The argument went against an
Internal Revenue Service policy that denied tax-exempt status to institutions
that discriminated by race.

The government's treatment of the Guantanamo detainees has a troubled legal
history. The Justice Department initially denied the detainees any legal rights,
arguing that the federal courts had no jurisdiction over foreigners captured
overseas and held on the base in Cuba. But in 2004, the Supreme Court ruled that
the federal courts had the obligation to hear petitions challenging the
detainees' detention because Guantanamo Bay is controlled by the U.S. military.

In an effort to block a flood of litigation, Congress passed the Detainee
Treatment Act in December 2005, barring cases challenging detainees' detention
-- habeas corpus petitions -- from the federal courts. But in 2006, the Supreme
Court ruled that the law did not apply to cases that had already been filed.
That left a slew of petitions in the federal courts. The ruling also threw out
the White House's newly created military commission system because it did not
comply with the Geneva Conventions.

Congress tried to stanch the litigation once again in October 2006 with the
Military Commissions Act, which banned all habeas petitions by Guantanamo
detainees. But it allowed them to file more narrow challenges of their status as
enemy combatants -- only in the more conservative U.S. Court of Appeals for the
D.C. Circuit. The detainees tried to challenge the law, but in February a
divided three-judge panel on the D.C. Circuit ruled against them, effectively
moving all detainee litigation into the D.C. Circuit and into the hands of the
civil appellate lawyers.

Although the Supreme Court is planning to address the ruling this year, the
Justice Department has recently been on the defense in the D.C. Circuit. A
different unanimous three-judge panel held in July that the government must turn
over more information for the court's review of the detainees' new challenges, a
ruling that the Justice Department has continued to contest.

*


Boston Globe --

August 25, 2007

MILITARY CITES RISK OF ABUSE BY CIA
New Bush rules on detainees stir concern

By Charlie Savage

WASHINGTON -- Top military lawyers have told senators that President Bush's new
rules for CIA interrogations of suspected terrorists could allow abuses that
violate the Geneva Conventions, according to Senate and military officials.

The Judge Advocates General of all branches of the military told the senators
that a July 20 executive order establishing rules for the treatment of CIA
prisoners appeared to be carefully worded to allow humiliating or degrading
interrogation techniques when the interrogators' objective is to protect
national security rather than to satisfy sadistic impulses.

The JAGs expressed their concerns at a meeting late last month with Senators
John Warner of Virginia, Lindsey Graham of South Carolina, and an aide
representing John McCain of Arizona, who could not attend because he was
campaigning for president. All three senators are Republicans who have been key
proponents of laws banning the abuse of detainees, and have vowed to monitor the
Bush administration's treatment of prisoners.

The top JAG for the US Army, Major General Scott C. Black, followed up on the
meeting this month by sending a memo to lower-ranking soldiers reminding them
that Bush's executive order applies only to the CIA, not to military
interrogations. Black told soldiers they must follow Army regulations, which
"make clear that [the Geneva Conventions are] the minimum humane treatment
standard" for prisoners.

"This Executive Order does not change the standard for the Army.... I want to
ensure that there is no confusion concerning the Executive Order's lack of
applicability to the Army," Black wrote in the memo, a copy of which was
obtained by the Globe. "As a Corps, we must be diligent to ensure that all
interrogation and detention operations comply with the Army standard."

In an e-mail yesterday, a Justice Department spokesman defended Bush's order as
"consistent" with the minimum standards of humane treatment required by the
Geneva Conventions.

But the JAGs told the senators that a key part of the order opens the door to
violations of the section of the Geneva Conventions that outlaws "cruel
treatment and torture" and "outrages upon personal dignity, in particular,
humiliating and degrading treatment," officials familiar with the discussion
said.

The JAGs cited language in the executive order in which Bush said CIA
interrogators may not use "willful and outrageous acts of personal abuse done
for the purpose of humiliating or degrading the individual." As an example, it
lists "sexual or sexually indecent acts undertaken for the purpose of
humiliation."

Among lawyers, "for the purpose" language is often used to mean that a person
must specifically intend to do something, such as causing humiliation, in order
to violate a statute. The JAGs said Bush's wording appears to make it legal for
interrogators to undertake that same abusive action if they had some other
motive, such as gaining information.

Other law-of-war specialists agreed that this part of Bush's executive order
creates an escape clause allowing abusive treatment.

Two former Reagan administration officials, Robert S. Turner and P.X. Kelley,
wrote an op-ed page piece in The Washington Post on July 26 criticizing Bush's
order as a violation of the Geneva Conventions that could endanger captured US
soldiers by eroding respect for the treaty. Among their criticisms, they also
singled out the "for the purpose" wording.

"As long as the intent of the abuse is to gather intelligence or to prevent
future attacks, and the abuse is not 'done for the purpose of humiliating or
degrading the individual' -- even if that is an inevitable consequence -- the
president has given the CIA carte blanche to engage in 'willful and outrageous
acts of personal abuse,' " the two wrote.

Erik Ablin, a Justice Department spokesman, yesterday rejected that
interpretation of the order. In an e-mail, he said the order "simply requires AN
intent to humiliate and degrade the individual" -- for any reason -- before an
interrogator's conduct would be considered a war crime. He said this standard
was consistent with how international war crimes tribunals have interpreted the
treaty.

But in an interview yesterday, Turner, who is now a University of Virginia law
professor, said the Justice Department was "playing games," and called its
explanation "a con." He said "the only reasonable interpretation of that
language is that if your purpose in doing this is not to humiliate and degrade
the guy, then that clause doesn't apply."

Turner's vehement criticism is particularly significant because he has been a
rare and outspoken defender of the Bush administration in other controversies
related to presidential power and the war on terrorism. Turner has repeatedly
testified before Congress that Bush's signing statements and his warrantless
wiretapping program are lawful and appropriate, for example.

The current dispute grew out of a June 2006 Supreme Court ruling that the Geneva
Conventions apply to the war on terrorism. The court rejected Bush's declaration
after the terrorist attacks of Sept. 11, 2001, that suspected Al Qaeda and
Taliban prisoners are not protected by the war-crimes treaties.

After the ruling, Congress passed a law requiring that Bush issue a public order
detailing his interrogation policy. That led to Bush's July 20 executive order.

The Bush administration legal team had previously invoked a similar "intent"
loophole to give legal cover to harsh interrogations. In a once-secret Aug. 1,
2002, Justice Department memo about an antitorture law, the administration legal
team said interrogators could avoid violating anti-torture laws if they said
their motivation was protecting national security.

"Even if the [interrogator] knows that severe pain will result from his actions,
if causing such harm is not his objective, he lacks the requisite specific
intent," the 2002 memo read.

The memo was leaked after the Abu Ghraib torture scandal in 2004 and sparked an
outcry over its permissive attitude toward torture. It was subsequently
withdrawn by the Justice Department.

*


The New Yorker --

August 6, 2007 [August 13 issue]

THE BLACK SITES

A rare look inside the CIA's secret interrogation program.

by Jane Mayer

http://www.newyorker.com/reporting/2007/08/13/070813fa_fact_mayer

In March, Mariane Pearl, the widow of the murdered Wall Street Journal reporter
Daniel Pearl, received a phone call from Alberto Gonzales, the Attorney General.
At the time, Gonzales's role in the controversial dismissal of eight United
States Attorneys had just been exposed, and the story was becoming a scandal in
Washington. Gonzales informed Pearl that the Justice Department was about to
announce some good news: a terrorist in U.S. custody -- Khalid Sheikh Mohammed,
the Al Qaeda leader who was the primary architect of the September 11th attacks
-- had confessed to killing her husband. (Pearl was abducted and beheaded five
and a half years ago in Pakistan, by unidentified Islamic militants.) The
Administration planned to release a transcript in which Mohammed boasted, "I
decapitated with my blessed right hand the head of the American Jew Daniel Pearl
in the city of Karachi, Pakistan. For those who would like to confirm, there are
pictures of me on the Internet holding his head."

Pearl was taken aback. In 2003, she had received a call from Condoleezza Rice,
who was then President Bush's national-security adviser, informing her of the
same news. But Rice's revelation had been secret. Gonzales's announcement seemed
like a publicity stunt. Pearl asked him if he had proof that Mohammed's
confession was truthful; Gonzales claimed to have corroborating evidence but
wouldn't share it. "It's not enough for officials to call me and say they
believe it," Pearl said. "You need evidence." (Gonzales did not respond to
requests for comment.)

The circumstances surrounding the confession of Mohammed, whom law-enforcement
officials refer to as K.S.M., were perplexing. He had no lawyer. After his
capture in Pakistan, in March of 2003, the Central Intelligence Agency had
detained him in undisclosed locations for more than two years; last fall, he was
transferred to military custody in Guantanamo Bay, Cuba. There were no named
witnesses to his initial confession, and no solid information about what form of
interrogation might have prodded him to talk, although reports had been
published, in the Times and elsewhere, suggesting that C.I.A. officers had
tortured him. At a hearing held at Guantanamo, Mohammed said that his testimony
was freely given, but he also indicated that he had been abused by the C.I.A.
(The Pentagon had classified as "top secret" a statement he had written
detailing the alleged mistreatment.) And although Mohammed said that there were
photographs confirming his guilt, U.S. authorities had found none. Instead, they
had a copy of the video that had been released on the Internet, which showed the
killer's arms but offered no other clues to his identity.

Further confusing matters, a Pakistani named Ahmed Omar Saeed Sheikh had already
been convicted of the abduction and murder, in 2002. A British-educated
terrorist who had a history of staging kidnappings, he had been sentenced to
death in Pakistan for the crime. But the Pakistani government, not known for its
leniency, had stayed his execution. Indeed, hearings on the matter had been
delayed a remarkable number of times -- at least thirty -- possibly because of
his reported ties to the Pakistani intelligence service, which may have helped
free him after he was imprisoned for terrorist activities in India. Mohammed's
confession would delay the execution further, since, under Pakistani law, any
new evidence is grounds for appeal.

A surprising number of people close to the case are dubious of Mohammed's
confession. A longtime friend of Pearl's, the former Journal reporter Asra
Nomani, said, "The release of the confession came right in the midst of the U.S.
Attorney scandal. There was a drumbeat for Gonzales's resignation. It seemed
like a calculated strategy to change the subject. Why now? They'd had the
confession for years." Mariane and Daniel Pearl were staying in Nomani's Karachi
house at the time of his murder, and Nomani has followed the case meticulously;
this fall, she plans to teach a course on the topic at Georgetown University.
She said, "I don't think this confession resolves the case. You can't have
justice from one person's confession, especially under such unusual
circumstances. To me, it's not convincing." She added, "I called all the
investigators. They weren't just skeptical -- they didn't believe it."

Special Agent Randall Bennett, the head of security for the U.S. consulate in
Karachi when Pearl was killed -- and whose lead role investigating the murder
was featured in the recent film "A Mighty Heart" -- said that he has interviewed
all the convicted accomplices who are now in custody in Pakistan, and that none
of them named Mohammed as playing a role. "K.S.M.'s name never came up," he
said. Robert Baer, a former C.I.A. officer, said, "My old colleagues say with
one-hundred-per-cent certainty that it was not K.S.M. who killed Pearl." A
government official involved in the case said, "The fear is that K.S.M. is
covering up for others, and that these people will be released." And Judea
Pearl, Daniel's father, said, "Something is fishy. There are a lot of unanswered
questions. K.S.M. can say he killed Jesus -- he has nothing to lose."

Mariane Pearl, who is relying on the Bush Administration to bring justice in her
husband's case, spoke carefully about the investigation. "You need a procedure
that will get the truth," she said. "An intelligence agency is not supposed to
be above the law."

Mohammed's interrogation was part of a secret C.I.A. program, initiated after
September 11th, in which terrorist suspects such as Mohammed were detained in
"black sites" -- secret prisons outside the United States -- and subjected to
unusually harsh treatment. The program was effectively suspended last fall, when
President Bush announced that he was emptying the C.I.A.'s prisons and
transferring the detainees to military custody in Guantanamo. This move followed
a Supreme Court ruling, Hamdan v. Rumsfeld, which found that all detainees --
including those held by the C.I.A. -- had to be treated in a manner consistent
with the Geneva Conventions. These treaties, adopted in 1949, bar cruel
treatment, degradation, and torture. In late July, the White House issued an
executive order promising that the C.I.A. would adjust its methods in order to
meet the Geneva standards. At the same time, Bush's order pointedly did not
disavow the use of "enhanced interrogation techniques" that would likely be
found illegal if used by officials inside the United States. The executive order
means that the agency can once again hold foreign terror suspects indefinitely,
and without charges, in black sites, without notifying their families or local
authorities, or offering access to legal counsel.

The C.I.A.'s director, General Michael Hayden, has said that the program, which
is designed to extract intelligence from suspects quickly, is an "irreplaceable"
tool for combatting terrorism. And President Bush has said that "this program
has given us information that has saved innocent lives, by helping us stop new
attacks." He claims that it has contributed to the disruption of at least ten
serious Al Qaeda plots since September 11th, three of them inside the United
States.

According to the Bush Administration, Mohammed divulged information of
tremendous value during his detention. He is said to have helped point the way
to the capture of Hambali, the Indonesian terrorist responsible for the 2002
bombings of night clubs in Bali. He also provided information on an Al Qaeda
leader in England. Michael Sheehan, a former counterterrorism official at the
State Department, said, "K.S.M. is the poster boy for using tough but legal
tactics. He's the reason these techniques exist. You can save lives with the
kind of information he could give up." Yet Mohammed's confessions may also have
muddled some key investigations. Perhaps under duress, he claimed involvement in
thirty-one criminal plots -- an improbable number, even for a high-level
terrorist. Critics say that Mohammed's case illustrates the cost of the C.I.A.'s
desire for swift intelligence. Colonel Dwight Sullivan, the top defense lawyer
at the Pentagon's Office of Military Commissions, which is expected eventually
to try Mohammed for war crimes, called his serial confessions "a textbook
example of why we shouldn't allow coercive methods."

The Bush Administration has gone to great lengths to keep secret the treatment
of the hundred or so "high-value detainees" whom the C.I.A. has confined, at one
point or another, since September 11th. The program has been extraordinarily
"compartmentalized," in the nomenclature of the intelligence world. By design,
there has been virtually no access for outsiders to the C.I.A.'s prisoners. The
utter isolation of these detainees has been described as essential to America's
national security. The Justice Department argued this point explicitly last
November, in the case of a Baltimore-area resident named Majid Khan, who was
held for more than three years by the C.I.A. Khan, the government said, had to
be prohibited from access to a lawyer specifically because he might describe the
"alternative interrogation methods" that the agency had used when questioning
him. These methods amounted to a state secret, the government argued, and
disclosure of them could "reasonably be expected to cause extremely grave
damage." (The case has not yet been decided.)

Given this level of secrecy, the public and all but a few members of Congress
who have been sworn to silence have had to take on faith President Bush's
assurances that the C.I.A.'s internment program has been humane and legal, and
has yielded crucial intelligence. Representative Alcee Hastings, a Democratic
member of the House Select Committee on Intelligence, said, "We talk to the
authorities about these detainees, but, of course, they're not going to come out
and tell us that they beat the living daylights out of someone." He recalled
learning in 2003 that Mohammed had been captured. "It was good news," he said.
"So I tried to find out: Where is this guy? And how is he being treated?" For
more than three years, Hastings said, "I could never pinpoint anything."
Finally, he received some classified briefings on the Mohammed interrogation.
Hastings said that he "can't go into details" about what he found out, but,
speaking of Mohammed's treatment, he said that even if it wasn't torture, as the
Administration claims, "it ain't right, either. Something went wrong."

Since the drafting of the Geneva Conventions, the International Committee of the
Red Cross has played a special role in safeguarding the rights of prisoners of
war. For decades, governments have allowed officials from the organization to
report on the treatment of detainees, to insure that standards set by
international treaties are being maintained. The Red Cross, however, was unable
to get access to the C.I.A.'s prisoners for five years. Finally, last year, Red
Cross officials were allowed to interview fifteen detainees, after they had been
transferred to Guantanamo. One of the prisoners was Khalid Sheikh Mohammed. What
the Red Cross learned has been kept from the public. The committee believes that
its continued access to prisoners worldwide is contingent upon confidentiality,
and therefore it addresses violations privately with the authorities directly
responsible for prisoner treatment and detention. For this reason, Simon
Schorno, a Red Cross spokesman in Washington, said, "The I.C.R.C. does not
comment on its findings publicly. Its work is confidential."

The public-affairs office at the C.I.A. and officials at the congressional
intelligence-oversight committees would not even acknowledge the existence of
the report. Among the few people who are believed to have seen it are
Condoleezza Rice, now the Secretary of State; Stephen Hadley, the national-
security adviser; John Bellinger III, the Secretary of State's legal adviser;
Hayden; and John Rizzo, the agency's acting general counsel. Some members of the
Senate and House intelligence-oversight committees are also believed to have had
limited access to the report.

Confidentiality may be particularly stringent in this case. Congressional and
other Washington sources familiar with the report said that it harshly
criticized the C.I.A.'s practices. One of the sources said that the Red Cross
described the agency's detention and interrogation methods as tantamount to
torture, and declared that American officials responsible for the abusive
treatment could have committed serious crimes. The source said the report warned
that these officials may have committed "grave breaches" of the Geneva
Conventions, and may have violated the U.S. Torture Act, which Congress passed
in 1994. The conclusions of the Red Cross, which is known for its credibility
and caution, could have potentially devastating legal ramifications.

Concern about the legality of the C.I.A.'s program reached a previously
unreported breaking point last week when Senator Ron Wyden, a Democrat on the
intelligence committee, quietly put a "hold" on the confirmation of John Rizzo,
who as acting general counsel was deeply involved in establishing the agency's
interrogation and detention policies. Wyden's maneuver essentially stops the
nomination from going forward. "I question if there's been adequate legal
oversight," Wyden told me. He said that after studying a classified addendum to
President Bush's new executive order, which specifies permissible treatment of
detainees, "I am not convinced that all of these techniques are either effective
or legal. I don't want to see well-intentioned C.I.A. officers breaking the law
because of shaky legal guidance."

A former C.I.A. officer, who supports the agency's detention and interrogation
policies, said he worried that, if the full story of the C.I.A. program ever
surfaced, agency personnel could face criminal prosecution. Within the agency,
he said, there is a "high level of anxiety about political retribution" for the
interrogation program. If congressional hearings begin, he said, "several guys
expect to be thrown under the bus." He noted that a number of C.I.A. officers
have taken out professional liability insurance, to help with potential legal
fees.

Paul Gimigliano, a spokesman for the C.I.A., denied any legal impropriety,
stressing that "the agency's terrorist-detention program has been implemented
lawfully. And torture is illegal under U.S. law. The people who have been part
of this important effort are well-trained, seasoned professionals." This spring,
the Associated Press published an article quoting the chairman of the House
intelligence committee, Silvestre Reyes, who said that Hayden, the C.I.A.
director, "vehemently denied" the Red Cross's conclusions. A U.S. official
dismissed the Red Cross report as a mere compilation of allegations made by
terrorists. And Robert Grenier, a former head of the C.I.A.'s Counterterrorism
Center, said that "the C.I.A.'s interrogations were nothing like Abu Ghraib or
Guantanamo. They were very, very regimented. Very meticulous." He said, "The
program is very careful. It's completely legal."

Accurately or not, Bush Administration officials have described the prisoner
abuses at Abu Ghraib and Guantanamo as the unauthorized actions of ill-trained
personnel, eleven of whom have been convicted of crimes. By contrast, the
treatment of high-value detainees has been directly, and repeatedly, approved by
President Bush. The program is monitored closely by C.I.A. lawyers, and
supervised by the agency's director and his subordinates at the Counterterrorism
Center. While Mohammed was being held by the agency, detailed dossiers on the
treatment of detainees were regularly available to the former C.I.A. director
George Tenet, according to informed sources inside and outside the agency.
Through a spokesperson, Tenet denied making day-to-day decisions about the
treatment of individual detainees. But, according to a former agency official,
"Every single plan is drawn up by interrogators, and then submitted for approval
to the highest possible level -- meaning the director of the C.I.A. Any change
in the plan -- even if an extra day of a certain treatment was added -- was
signed off by the C.I.A. director."

On September 17, 2001, President Bush signed a secret Presidential finding
authorizing the C.I.A. to create paramilitary teams to hunt, capture, detain, or
kill designated terrorists almost anywhere in the world. Yet the C.I.A. had
virtually no trained interrogators. A former C.I.A. officer involved in fighting
terrorism said that, at first, the agency was crippled by its lack of expertise.
"It began right away, in Afghanistan, on the fly," he recalled. "They invented
the program of interrogation with people who had no understanding of Al Qaeda or
the Arab world." The former officer said that the pressure from the White House,
in particular from Vice-President Dick Cheney, was intense: "They were pushing
us: ‘Get information! Do not let us get hit again!' " In the scramble, he said,
he searched the C.I.A.'s archives, to see what interrogation techniques had
worked in the past. He was particularly impressed with the Phoenix Program, from
the Vietnam War. Critics, including military historians, have described it as a
program of state-sanctioned torture and murder. A Pentagon-contract study found
that, between 1970 and 1971, ninety-seven per cent of the Vietcong targeted by
the Phoenix Program were of negligible importance. But, after September 11th,
some C.I.A. officials viewed the program as a useful model. A. B. Krongard, who
was the executive director of the C.I.A. from 2001 to 2004, said that the agency
turned to "everyone we could, including our friends in Arab cultures," for
interrogation advice, among them those in Egypt, Jordan, and Saudi Arabia, all
of which the State Department regularly criticizes for human-rights abuses.

The C.I.A. knew even less about running prisons than it did about hostile
interrogations. Tyler Drumheller, a former chief of European operations at the
C.I.A., and the author of a recent book, "On the Brink: How the White House
Compromised U.S. Intelligence," said, "The agency had no experience in
detention. Never. But they insisted on arresting and detaining people in this
program. It was a mistake, in my opinion. You can't mix intelligence and police
work. But the White House was really pushing. They wanted someone to do it. So
the C.I.A. said, ‘We'll try.' George Tenet came out of politics, not
intelligence. His whole modus operandi was to please the principal. We got stuck
with all sorts of things. This is really the legacy of a director who never said
no to anybody."

Many officials inside the C.I.A. had misgivings. "A lot of us knew this would be
a can of worms," the former officer said. "We warned them, It's going to become
an atrocious mess." The problem from the start, he said, was that no one had
thought through what he called "the disposal plan." He continued, "What are you
going to do with these people? The utility of someone like K.S.M. is, at most,
six months to a year. You exhaust them. Then what? It would have been better if
we had executed them."

The C.I.A. program's first important detainee was Abu Zubaydah, a top Al Qaeda
operative, who was captured by Pakistani forces in March of 2002. Lacking in-
house specialists on interrogation, the agency hired a group of outside
contractors, who implemented a regime of techniques that one well-informed
former adviser to the American intelligence community described as "a ‘Clockwork
Orange' kind of approach." The experts were retired military psychologists, and
their backgrounds were in training Special Forces soldiers how to survive
torture, should they ever be captured by enemy states. The program, known as
SERE -- an acronym for Survival, Evasion, Resistance, and Escape -- was created
at the end of the Korean War. It subjected trainees to simulated torture,
including waterboarding (simulated drowning), sleep deprivation, isolation,
exposure to temperature extremes, enclosure in tiny spaces, bombardment with
agonizing sounds, and religious and sexual humiliation. The SERE program was
designed strictly for defense against torture regimes, but the C.I.A.'s new team
used its expertise to help interrogators inflict abuse. "They were very
arrogant, and pro-torture," a European official knowledgeable about the program
said. "They sought to render the detainees vulnerable -- to break down all of
their senses. It takes a psychologist trained in this to understand these
rupturing experiences."

The use of psychologists was also considered a way for C.I.A. officials to skirt
measures such as the Convention Against Torture. The former adviser to the
intelligence community said, "Clearly, some senior people felt they needed a
theory to justify what they were doing. You can't just say, ‘We want to do what
Egypt's doing.' When the lawyers asked what their basis was, they could say, ‘We
have Ph.D.s who have these theories.' " He said that, inside the C.I.A., where a
number of scientists work, there was strong internal opposition to the new
techniques. "Behavioral scientists said, ‘Don't even think about this!' They
thought officers could be prosecuted."

Nevertheless, the SERE experts' theories were apparently put into practice with
Zubaydah's interrogation. Zubaydah told the Red Cross that he was not only
waterboarded, as has been previously reported; he was also kept for a prolonged
period in a cage, known as a "dog box," which was so small that he could not
stand. According to an eyewitness, one psychologist advising on the treatment of
Zubaydah, James Mitchell, argued that he needed to be reduced to a state of
"learned helplessness." (Mitchell disputes this characterization.)

Steve Kleinman, a reserve Air Force colonel and an experienced interrogator who
has known Mitchell professionally for years, said that "learned helplessness was
his whole paradigm." Mitchell, he said, "draws a diagram showing what he says is
the whole cycle. It starts with isolation. Then they eliminate the prisoners'
ability to forecast the future -- when their next meal is, when they can go to
the bathroom. It creates dread and dependency. It was the K.G.B. model. But the
K.G.B. used it to get people who had turned against the state to confess
falsely. The K.G.B. wasn't after intelligence."

As the C.I.A. captured and interrogated other Al Qaeda figures, it established a
protocol of psychological coercion. The program tied together many strands of
the agency's secret history of Cold War-era experiments in behavioral science.
(In June, the C.I.A. declassified long-held secret documents known as the Family
Jewels, which shed light on C.I.A. drug experiments on rats and monkeys, and on
the infamous case of Frank R. Olson, an agency employee who leaped to his death
from a hotel window in 1953, nine days after he was unwittingly drugged with
LSD.) The C.I.A.'s most useful research focussed on the surprisingly powerful
effects of psychological manipulations, such as extreme sensory deprivation.
According to Alfred McCoy, a history professor at the University of Wisconsin,
in Madison, who has written a history of the C.I.A.'s experiments in coercing
subjects, the agency learned that "if subjects are confined without light,
odors, sound, or any fixed references of time and place, very deep breakdowns
can be provoked."

Agency scientists found that in just a few hours some subjects suspended in
water tanks -- or confined in isolated rooms wearing blacked-out goggles and
earmuffs -- regressed to semi-psychotic states. Moreover, McCoy said, detainees
become so desperate for human interaction that "they bond with the interrogator
like a father, or like a drowning man having a lifesaver thrown at him. If you
deprive people of all their senses, they'll turn to you like their daddy." McCoy
added that "after the Cold War we put away those tools. There was bipartisan
reform. We backed away from those dark days. Then, under the pressure of the war
on terror, they didn't just bring back the old psychological techniques -- they
perfected them."

The C.I.A.'s interrogation program is remarkable for its mechanistic aura. "It's
one of the most sophisticated, refined programs of torture ever," an outside
expert familiar with the protocol said. "At every stage, there was a rigid
attention to detail. Procedure was adhered to almost to the letter. There was
top-down quality control, and such a set routine that you get to the point where
you know what each detainee is going to say, because you've heard it before. It
was almost automated. People were utterly dehumanized. People fell apart. It was
the intentional and systematic infliction of great suffering masquerading as a
legal process. It is just chilling."

The U.S. government first began tracking Khalid Sheikh Mohammed in 1993, shortly
after his nephew Ramzi Yousef blew a gaping hole in the World Trade Center.
Mohammed, officials learned, had transferred money to Yousef. Mohammed, born in
either 1964 or 1965, was raised in a religious Sunni Muslim family in Kuwait,
where his family had migrated from the Baluchistan region of Pakistan. In the
mid-eighties, he was trained as a mechanical engineer in the U.S., attending two
colleges in North Carolina.

As a teen-ager, Mohammed had been drawn to militant, and increasingly violent,
Muslim causes. He joined the Muslim Brotherhood at the age of sixteen, and,
after his graduation from North Carolina Agricultural and Technical State
University, in Greensboro -- where he was remembered as a class clown, but
religious enough to forgo meat when eating at Burger King -- he signed on with
the anti-Soviet jihad in Afghanistan, receiving military training and
establishing ties with Islamist terrorists. By all accounts, his animus toward
the U.S. was rooted in a hatred of Israel.

In 1994, Mohammed, who was impressed by Yousef's notoriety after the first World
Trade Center bombing, joined him in scheming to blow up twelve U.S. jumbo jets
over two days. The so-called Bojinka plot was disrupted in 1995, when Philippine
police broke into an apartment that Yousef and other terrorists were sharing in
Manila, which was filled with bomb-making materials. At the time of the raid,
Mohammed was working in Doha, Qatar, at a government job. The following year, he
narrowly escaped capture by F.B.I. officers and slipped into the global jihadist
network, where he eventually joined forces with Osama bin Laden, in Afghanistan.
Along the way, he married and had children.

Many journalistic accounts have presented Mohammed as a charismatic,
swashbuckling figure: in the Philippines, he was said to have flown a helicopter
close enough to a girlfriend's office window so that she could see him; in
Pakistan, he supposedly posed as an anonymous bystander and gave interviews to
news reporters about his nephew's arrest. Neither story is true. But Mohammed
did seem to enjoy taunting authorities after the September 11th attacks, which,
in his eventual confession, he claimed to have orchestrated "from A to Z." In
April, 2002, Mohammed arranged to be interviewed on Al Jazeera by its London
bureau chief, Yosri Fouda, and took personal credit for the atrocities. "I am
the head of the Al Qaeda military committee," he said. "And yes, we did it."
Fouda, who conducted the interview at an Al Qaeda safe house in Karachi, said
that he was astounded not only by Mohammed's boasting but also by his seeming
imperviousness to the danger of being caught. Mohammed permitted Al Jazeera to
reveal that he was hiding out in the Karachi area. When Fouda left the
apartment, Mohammed, apparently unarmed, walked him downstairs and out into the
street.

In the early months of 2003, U.S. authorities reportedly paid a twenty-five-
million-dollar reward for information that led to Mohammed's arrest. U.S.
officials closed in on him, at 4 A.M. on March 1st, waking him up in a borrowed
apartment in Rawalpindi, Pakistan. The officials hung back as Pakistani
authorities handcuffed and hooded him, and took him to a safe house. Reportedly,
for the first two days, Mohammed robotically recited Koranic verses and refused
to divulge much more than his name. A videotape obtained by "60 Minutes" shows
Mohammed at the end of this episode, complaining of a head cold; an American
voice can be heard in the background. This was the last image of Mohammed to be
seen by the public. By March 4th, he was in C.I.A. custody.

Captured along with Mohammed, according to some accounts, was a letter from bin
Laden, which may have led officials to think that he knew where the Al Qaeda
founder was hiding. If Mohammed did have this crucial information, it was time
sensitive -- bin Laden never stayed in one place for long -- and officials
needed to extract it quickly. At the time, many American intelligence officials
still feared a "second wave" of Al Qaeda attacks, ratcheting the pressure
further.

According to George Tenet's recent memoir, "At the Center of the Storm,"
Mohammed told his captors that he wouldn't talk until he was given a lawyer in
New York, where he assumed he would be taken. (He had been indicted there in
connection with the Bojinka plot.) Tenet writes, "Had that happened, I am
confident that we would have obtained none of the information he had in his head
about imminent threats against the American people." Opponents of the C.I.A.'s
approach, however, note that Ramzi Yousef gave a voluminous confession after
being read his Miranda rights. "These guys are egomaniacs," a former federal
prosecutor said. "They love to talk!"

A complete picture of Mohammed's time in secret detention remains elusive. But a
partial narrative has emerged through interviews with European and American
sources in intelligence, government, and legal circles, as well as with former
detainees who have been released from C.I.A. custody. People familiar with
Mohammed's allegations about his interrogation, and interrogations of other
high-value detainees, describe the accounts as remarkably consistent.

Soon after Mohammed's arrest, sources say, his American captors told him, "We're
not going to kill you. But we're going to take you to the very brink of your
death and back." He was first taken to a secret U.S.-run prison in Afghanistan.
According to a Human Rights Watch report released two years ago, there was a
C.I.A.-affiliated black site in Afghanistan by 2002: an underground prison near
Kabul International Airport. Distinctive for its absolute lack of light, it was
referred to by detainees as the Dark Prison. Another detention facility was
reportedly a former brick factory, just north of Kabul, known as the Salt Pit.
The latter became infamous for the 2002 death of a detainee, reportedly from
hypothermia, after prison officials stripped him naked and chained him to the
floor of his concrete cell, in freezing temperatures.

In all likelihood, Mohammed was transported from Pakistan to one of the Afghan
sites by a team of black-masked commandos attached to the C.I.A.'s paramilitary
Special Activities Division. According to a report adopted in June by the
Parliamentary Assembly of the Council of Europe, titled "Secret Detentions and
Illegal Transfers of Detainees," detainees were "taken to their cells by strong
people who wore black outfits, masks that covered their whole faces, and dark
visors over their eyes." (Some personnel reportedly wore black clothes made from
specially woven synthetic fabric that couldn't be ripped or torn.) A former
member of a C.I.A. transport team has described the "takeout" of prisoners as a
carefully choreographed twenty-minute routine, during which a suspect was hog-
tied, stripped naked, photographed, hooded, sedated with anal suppositories,
placed in diapers, and transported by plane to a secret location.

A person involved in the Council of Europe inquiry, referring to cavity searches
and the frequent use of suppositories during the takeout of detainees, likened
the treatment to "sodomy." He said, "It was used to absolutely strip the
detainee of any dignity. It breaks down someone's sense of impenetrability. The
interrogation became a process not just of getting information but of utterly
subordinating the detainee through humiliation." The former C.I.A. officer
confirmed that the agency frequently photographed the prisoners naked, "because
it's demoralizing." The person involved in the Council of Europe inquiry said
that photos were also part of the C.I.A.'s quality-control process. They were
passed back to case officers for review.

A secret government document, dated December 10, 2002, detailing "SERE
Interrogation Standard Operating Procedure," outlines the advantages of
stripping detainees. "In addition to degradation of the detainee, stripping can
be used to demonstrate the omnipotence of the captor or to debilitate the
detainee." The document advises interrogators to "tear clothing from detainees
by firmly pulling downward against buttoned buttons and seams. Tearing motions
shall be downward to prevent pulling the detainee off balance." The memo also
advocates the "Shoulder Slap," "Stomach Slap," "Hooding," "Manhandling,"
"Walling," and a variety of "Stress Positions," including one called "Worship
the Gods."

In the process of being transported, C.I.A. detainees such as Mohammed were
screened by medical experts, who checked their vital signs, took blood samples,
and marked a chart with a diagram of a human body, noting scars, wounds, and
other imperfections. As the person involved in the Council of Europe inquiry put
it, "It's like when you hire a motor vehicle, circling where the scratches are
on the rearview mirror. Each detainee was continually assessed, physically and
psychologically."

According to sources, Mohammed said that, while in C.I.A. custody, he was placed
in his own cell, where he remained naked for several days. He was questioned by
an unusual number of female handlers, perhaps as an additional humiliation. He
has alleged that he was attached to a dog leash, and yanked in such a way that
he was propelled into the walls of his cell. Sources say that he also claimed to
have been suspended from the ceiling by his arms, his toes barely touching the
ground. The pressure on his wrists evidently became exceedingly painful.

Ramzi Kassem, who teaches at Yale Law School, said that a Yemeni client of his,
Sanad al-Kazimi, who is now in Guantanamo, alleged that he had received similar
treatment in the Dark Prison, the facility near Kabul. Kazimi claimed to have
been suspended by his arms for long periods, causing his legs to swell
painfully. "It's so traumatic, he can barely speak of it," Kassem said. "He
breaks down in tears." Kazimi also claimed that, while hanging, he was beaten
with electric cables.

According to sources familiar with interrogation techniques, the hanging
position is designed, in part, to prevent detainees from being able to sleep.
The former C.I.A. officer, who is knowledgeable about the interrogation program,
explained that "sleep deprivation works. Your electrolyte balance changes. You
lose all balance and ability to think rationally. Stuff comes out." Sleep
deprivation has been recognized as an effective form of coercion since the
Middle Ages, when it was called tormentum insomniae. It was also recognized for
decades in the United States as an illegal form of torture. An American Bar
Association report, published in 1930, which was cited in a later U.S. Supreme
Court decision, said, "It has been known since 1500 at least that deprivation of
sleep is the most effective torture and certain to produce any confession
desired."

Under President Bush's new executive order, C.I.A. detainees must receive the
"basic necessities of life, including adequate food and water, shelter from the
elements, necessary clothing, protection from extremes of heat and cold, and
essential medical care." Sleep, according to the order, is not among the basic
necessities.

In addition to keeping a prisoner awake, the simple act of remaining upright can
over time cause significant pain. McCoy, the historian, noted that "longtime
standing" was a common K.G.B. interrogation technique. In his 2006 book, "A
Question of Torture," he writes that the Soviets found that making a victim
stand for eighteen to twenty-four hours can produce "excruciating pain, as
ankles double in size, skin becomes tense and intensely painful, blisters erupt
oozing watery serum, heart rates soar, kidneys shut down, and delusions deepen."

Mohammed is said to have described being chained naked to a metal ring in his
cell wall for prolonged periods in a painful crouch. (Several other detainees
who say that they were confined in the Dark Prison have described identical
treatment.) He also claimed that he was kept alternately in suffocating heat and
in a painfully cold room, where he was doused with ice water. The practice,
which can cause hypothermia, violates the Geneva Conventions, and President
Bush's new executive order arguably bans it.

Some detainees held by the C.I.A. claimed that their cells were bombarded with
deafening sound twenty-fours hours a day for weeks, and even months. One
detainee, Binyam Mohamed, who is now in Guantanamo, told his lawyer, Clive
Stafford Smith, that speakers blared music into his cell while he was
handcuffed. Detainees recalled the sound as ranging from ghoulish laughter,
"like the soundtrack from a horror film," to ear-splitting rap anthems. Stafford
Smith said that his client found the psychological torture more intolerable than
the physical abuse that he said he had been previously subjected to in Morocco,
where, he said, local intelligence agents had sliced him with a razor blade.
"The C.I.A. worked people day and night for months," Stafford Smith quoted
Binyam Mohamed as saying. "Plenty lost their minds. I could hear people knocking
their heads against the walls and doors, screaming their heads off."

Professor Kassem said his Yemeni client, Kazimi, had told him that, during his
incarceration in the Dark Prison, he attempted suicide three times, by ramming
his head into the walls. "He did it until he lost consciousness," Kassem said.
"Then they stitched him back up. So he did it again. The next time, he woke up,
he was chained, and they'd given him tranquillizers. He asked to go to the
bathroom, and then he did it again." This last time, Kazimi was given more
tranquillizers, and chained in a more confining manner.

The case of Khaled el-Masri, another detainee, has received wide attention. He
is the German car salesman whom the C.I.A. captured in 2003 and dispatched to
Afghanistan, based on erroneous intelligence; he was released in 2004, and
Condoleezza Rice reportedly conceded the mistake to the German chancellor. Masri
is considered one of the more credible sources on the black-site program,
because Germany has confirmed that he has no connections to terrorism. He has
also described inmates bashing their heads against the walls. Much of his
account appeared on the front page of the Times. But, during a visit to America
last fall, he became tearful as he recalled the plight of a Tanzanian in a
neighboring cell. The man seemed "psychologically at the end," he said. "I could
hear him ramming his head against the wall in despair. I tried to calm him down.
I asked the doctor, ‘Will you take care of this human being?' " But the doctor,
whom Masri described as American, refused to help. Masri also said that he was
told that guards had "locked the Tanzanian in a suitcase for long periods of
time -- a foul-smelling suitcase that made him vomit." (Masri did not witness
such abuse.)

Masri described his prison in Afghanistan as a filthy hole, with walls scribbled
on in Pashtun and Arabic. He was given no bed, only a coarse blanket on the
floor. At night, it was too cold to sleep. He said, "The water was putrid. If
you took a sip, you could taste it for hours. You could smell a foul smell from
it three metres away." The Salt Pit, he said, "was managed and run by the
Americans. It was not a secret. They introduced themselves as Americans." He
added, "When anything came up, they said they couldn't make a decision. They
said, ‘We will have to pass it on to Washington.' " The interrogation room at
the Salt Pit, he said, was overseen by a half-dozen English-speaking masked men,
who shoved him and shouted at him, saying, "You're in a country where there's no
rule of law. You might be buried here."

According to two former C.I.A. officers, an interrogator of Mohammed told them
that the Pakistani was kept in a cell over which a sign was placed: "The Proud
Murderer of 3,000 Americans." (Another source calls this apocryphal.) One of
these former officers defends the C.I.A.'s program by noting that "there was
absolutely nothing done to K.S.M. that wasn't done to the interrogators
themselves" -- a reference to SERE-like training. Yet the Red Cross report
emphasizes that it was the simultaneous use of several techniques for extended
periods that made the treatment "especially abusive." Senator Carl Levin, the
chairman of the Senate Armed Services Committee, who has been a prominent critic
of the Administration's embrace of harsh interrogation techniques, said that,
particularly with sensory deprivation, "there's a point where it's torture. You
can put someone in a refrigerator and it's torture. Everything is a matter of
degree."

One day, Mohammed was apparently transferred to a specially designated prison
for high-value detainees in Poland. Such transfers were so secretive, according
to the report by the Council of Europe, that the C.I.A. filed dummy flight
plans, indicating that the planes were heading elsewhere. Once Polish air space
was entered, the Polish aviation authority would secretly shepherd the flight,
leaving no public documentation. The Council of Europe report notes that the
Polish authorities would file a one-way flight plan out of the country, creating
a false paper trail. (The Polish government has strongly denied that any black
sites were established in the country.)

No more than a dozen high-value detainees were held at the Polish black site,
and none have been released from government custody; accordingly, no first-hand
accounts of conditions there have emerged. But, according to well-informed
sources, it was a far more high-tech facility than the prisons in Afghanistan.
The cells had hydraulic doors and air-conditioning. Multiple cameras in each
cell provided video surveillance of the detainees. In some ways, the
circumstances were better: the detainees were given bottled water. Without
confirming the existence of any black sites, Robert Grenier, the former C.I.A.
counterterrorism chief, said, "The agency's techniques became less aggressive as
they learned the art of interrogation," which, he added, "is an art."

Mohammed was kept in a prolonged state of sensory deprivation, during which
every point of reference was erased. The Council on Europe's report describes a
four-month isolation regime as typical. The prisoners had no exposure to natural
light, making it impossible for them to tell if it was night or day. They
interacted only with masked, silent guards. (A detainee held at what was most
likely an Eastern European black site, Mohammed al-Asad, told me that white
noise was piped in constantly, although during electrical outages he could hear
people crying.) According to a source familiar with the Red Cross report, Khalid
Sheikh Mohammed claimed that he was shackled and kept naked, except for a pair
of goggles and earmuffs. (Some prisoners were kept naked for as long as forty
days.) He had no idea where he was, although, at one point, he apparently
glimpsed Polish writing on a water bottle.

In the C.I.A.'s program, meals were delivered sporadically, to insure that the
prisoners remained temporally disoriented. The food was largely tasteless, and
barely enough to live on. Mohammed, who upon his capture in Rawalpindi was
photographed looking flabby and unkempt, was now described as being slim.
Experts on the C.I.A. program say that the administering of food is part of its
psychological arsenal. Sometimes portions were smaller than the day before, for
no apparent reason. "It was all part of the conditioning," the person involved
in the Council of Europe inquiry said. "It's all calibrated to develop
dependency."

The inquiry source said that most of the Poland detainees were waterboarded,
including Mohammed. According to the sources familiar with the Red Cross report,
Mohammed claimed to have been waterboarded five times. Two former C.I.A.
officers who are friends with one of Mohammed's interrogators called this
bravado, insisting that he was waterboarded only once. According to one of the
officers, Mohammed needed only to be shown the drowning equipment again before
he "broke."

"Waterboarding works," the former officer said. "Drowning is a baseline fear. So
is falling. People dream about it. It's human nature. Suffocation is a very
scary thing. When you're waterboarded, you're inverted, so it exacerbates the
fear. It's not painful, but it scares the shit out of you." (The former officer
was waterboarded himself in a training course.) Mohammed, he claimed, "didn't
resist. He sang right away. He cracked real quick." He said, "A lot of them want
to talk. Their egos are unimaginable. K.S.M. was just a little doughboy. He
couldn't stand toe to toe and fight it out."

The former officer said that the C.I.A. kept a doctor standing by during
interrogations. He insisted that the method was safe and effective, but said
that it could cause lasting psychic damage to the interrogators. During
interrogations, the former agency official said, officers worked in teams,
watching each other behind two-way mirrors. Even with this group support, the
friend said, Mohammed's interrogator "has horrible nightmares." He went on,
"When you cross over that line of darkness, it's hard to come back. You lose
your soul. You can do your best to justify it, but it's well outside the norm.
You can't go to that dark a place without it changing you." He said of his
friend, "He's a good guy. It really haunts him. You are inflicting something
really evil and horrible on somebody."

Among the few C.I.A. officials who knew the details of the detention and
interrogation program, there was a tense debate about where to draw the line in
terms of treatment. John Brennan, Tenet's former chief of staff, said, "It all
comes down to individual moral barometers." Waterboarding, in particular,
troubled many officials, from both a moral and a legal perspective. Until 2002,
when Bush Administration lawyers asserted that waterboarding was a permissible
interrogation technique for "enemy combatants," it was classified as a form of
torture, and treated as a serious criminal offense. American soldiers were
court-martialled for waterboarding captives as recently as the Vietnam War.

A C.I.A. source said that Mohammed was subjected to waterboarding only after
interrogators determined that he was hiding information from them. But Mohammed
has apparently said that, even after he started coöperating, he was
waterboarded. Footnotes to the 9/11 Commission report indicate that by April 17,
2003 -- a month and a half after he was captured -- Mohammed had already started
providing substantial information on Al Qaeda. Nonetheless, according to the
person involved in the Council of Europe inquiry, he was kept in isolation for
years. During this time, Mohammed supplied intelligence on the history of the
September 11th plot, and on the structure and operations of Al Qaeda. He also
described plots still in a preliminary phase of development, such as a plan to
bomb targets on America's West Coast.

Ultimately, however, Mohammed claimed responsibility for so many crimes that his
testimony became to seem inherently dubious. In addition to confessing to the
Pearl murder, he said that he had hatched plans to assassinate President
Clinton, President Carter, and Pope John Paul II. Bruce Riedel, who was a C.I.A.
analyst for twenty-nine years, and who now works at the Brookings Institution,
said, "It's difficult to give credence to any particular area of this large a
charge sheet that he confessed to, considering the situation he found himself
in. K.S.M. has no prospect of ever seeing freedom again, so his only
gratification in life is to portray himself as the James Bond of jihadism."

By 2004, there were growing calls within the C.I.A. to transfer to military
custody the high-value detainees who had told interrogators what they knew, and
to afford them some kind of due process. But Donald Rumsfeld, then the Defense
Secretary, who had been heavily criticized for the abusive conditions at
military prisons such as Abu Ghraib and Guantanamo, refused to take on the
agency's detainees, a former top C.I.A. official said. "Rumsfeld's attitude was,
You've got a real problem." Rumsfeld, the official said, "was the third most
powerful person in the U.S. government, but he only looked out for the interests
of his department -- not the whole Administration." (A spokesperson for Rumsfeld
said that he had no comment.)

C.I.A. officials were stymied until the Supreme Court's Hamdan ruling, which
prompted the Administration to send what it said were its last high-value
detainees to Cuba. Robert Grenier, like many people in the C.I.A., was relieved.
"There has to be some sense of due process," he said. "We can't just make people
disappear." Still, he added, "The most important source of intelligence we had
after 9/11 came from the interrogations of high-value detainees." And he said
that Mohammed was "the most valuable of the high-value detainees, because he had
operational knowledge." He went on, "I can respect people who oppose aggressive
interrogations, but they should admit that their principles may be putting
American lives at risk."

Yet Philip Zelikow, the executive director of the 9/11 Commission and later the
State Department's top counsellor, under Rice, is not convinced that eliciting
information from detainees justifies "physical torment." After leaving the
government last year, he gave a speech in Houston, in which he said, "The
question would not be, Did you get information that proved useful? Instead it
would be, Did you get information that could have been usefully gained only from
these methods?" He concluded, "My own view is that the cool, carefully
considered, methodical, prolonged, and repeated subjection of captives to
physical torment, and the accompanying psychological terror, is immoral."

Without more transparency, the value of the C.I.A.'s interrogation and detention
program is impossible to evaluate. Setting aside the moral, ethical, and legal
issues, even supporters, such as John Brennan, acknowledge that much of the
information that coercion produces is unreliable. As he put it, "All these
methods produced useful information, but there was also a lot that was bogus."
When pressed, one former top agency official estimated that "ninety per cent of
the information was unreliable." Cables carrying Mohammed's interrogation
transcripts back to Washington reportedly were prefaced with the warning that
"the detainee has been known to withhold information or deliberately mislead."
Mohammed, like virtually all the top Al Qaeda prisoners held by the C.I.A., has
claimed that, while under coercion, he lied to please his captors.

In theory, a military commission could sort out which parts of Mohammed's
confession are true and which are lies, and obtain a conviction. Colonel Morris
D. Davis, the chief prosecutor at the Office of Military Commissions, said that
he expects to bring charges against Mohammed "in a number of months." He added,
"I'd be shocked if the defense didn't try to make K.S.M.'s treatment a problem
for me, but I don't think it will be insurmountable."

Critics of the Administration fear that the unorthodox nature of the C.I.A.'s
interrogation and detention program will make it impossible to prosecute the
entire top echelon of Al Qaeda leaders in captivity. Already, according to the
Wall Street Journal, credible allegations of torture have caused a Marine Corps
prosecutor reluctantly to decline to bring charges against Mohamedou Ould Slahi,
an alleged Al Qaeda leader held in Guantanamo. Bruce Riedel, the former C.I.A.
analyst, asked, "What are you going to do with K.S.M. in the long run? It's a
very good question. I don't think anyone has an answer. If you took him to any
real American court, I think any judge would say there is no admissible
evidence. It would be thrown out."

The problems with Mohammed's coerced confessions are especially glaring in the
Daniel Pearl case. It may be that Mohammed killed Pearl, but contradictory
evidence and opinion continue to surface. Yosri Fouda, the Al Jazeera reporter
who interviewed Mohammed in Karachi, said that although Mohammed handed him a
package of propaganda items, including an unedited video of the Pearl murder, he
never identified himself as playing a role in the killing, which occurred in the
same city just two months earlier. And a federal official involved in Mohammed's
case said, "He has no history of killing with his own hands, although he's
proved happy to commit mass murder from afar." Al Qaeda's leadership had
increasingly focussed on symbolic political targets. "For him, it's not
personal," the official said. "It's business."

Ordinarily, the U.S. legal system is known for resolving such mysteries with
painstaking care. But the C.I.A.'s secret interrogation program, Senator Levin
said, has undermined the public's trust in American justice, both here and
abroad. "A guy as dangerous as K.S.M. is, and half the world wonders if they can
believe him -- is that what we want?" he asked. "Statements that can't be
believed, because people think they rely on torture?"

Asra Nomani, the Pearls' friend, said of the Mohammed confession, "I'm not
interested in unfair justice, even for bad people." She went on, "Danny was such
a person of conscience. I don't think he would have wanted all of this dirty
business. I don't think he would have wanted someone being tortured. He would
have been repulsed. This is the kind of story that Danny would have
investigated. He really believed in American principles."

* * *