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NEWS DIGEST 2007.11.01 - 2007.12.31
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Washington Post --

December 30, 2007

A CHANCE TO DEFEND THEMSELVES

by Thomas B. Wilner

http://www.washingtonpost.com/wp-
dyn/content/article/2007/12/28/AR2007122802446.html

The Supreme Court heard arguments this month in cases brought by detainees held
at Guantanamo Bay. Media reports noted the complicated legal issues involved,
such as whether the Constitution extends beyond sovereign U.S. territory,
whether foreigners are entitled to constitutional protections and whether habeas
corpus would have been available in a place like Guantanamo some 250 years ago
under British rule.

Those are all interesting legal questions. But what is at stake here is far less
complicated and more fundamental -- the question of whether our government can
throw people in prison without giving them a fair chance to defend themselves.

Throughout the civilized world, the right not to be imprisoned without a fair
hearing -- one that provides notice of the charges and the opportunity to rebut
them before a neutral decision maker -- is fundamental. It is the hallmark of
the rule of law.

More than 300 prisoners remain at Guantanamo. Most have been there almost six
years. We now know that the great majority were not captured on any battlefield.
They were not even captured by U.S. forces. Rather, as the National Journal
reported last year after an exhaustive study into government records, many were
simply "innocent, wrongly seized noncombatants" who were "handed over by reward-
seeking Pakistanis and Afghan warlords" in exchange for bounties.

All these prisoners have asked for is a fair hearing, one in which they have the
chance to learn the charges against them and to rebut the accusations before a
neutral decision maker. The Supreme Court ruled 3 1/2 years ago that they had
that right under the statute giving any prisoner in government custody the right
to a fair hearing before a federal court.

Just days after that 2004 decision, however, the Bush administration put in
place an administrative process -- known as CSRT -- under which panels of junior
military officers would review the decisions already made by their military
superiors that the prisoners were all properly held as "enemy combatants." That
process was a sham. The detainees were not allowed lawyers, nor were they
allowed to see much of the government's evidence, because the government deemed
it "classified." They could not confront their accusers, question their
reliability, or question whether the accusations resulted from torture and
coercion. They were not allowed to present evidence of their own unless the CSRT
panels found that it was "reasonably available," something the panels rarely
did.


The CSRTs denied every request made by a detainee for a witness who was not
already detained in Guantanamo. They denied three-quarters of the requests for
witnesses who were there. In addition, the CSRT rules established a presumption
in favor of all the government's evidence, including the evidence kept secret
from the detainees. Predictably, in more than 90 percent of the cases the CSRT
panels simply confirmed the decisions made by the superiors that the detainees
were enemy combatants. In cases where the panels concluded that a detainee was
not an enemy combatant, new panels were often convened to conclude that he was.

To make matters worse, the administration then persuaded Congress to take away
the detainees' rights to a hearing in federal court. Under a new law, detainees
were able to obtain only a limited determination from the U.S. Court of Appeals
for the D.C. Circuit of whether the CSRT panels had followed their own rules --
that is, the same rules that deprived detainees of counsel and of the rights to
know the accusations against them, to confront their accusers and to present
evidence establishing their innocence. (The statute also authorizes the D.C.
Circuit to consider whether the CSRT rules are consistent with the Constitution
"to the extent" that the Constitution applies, but since the appeals court
already decided that the Constitution does not apply, that inquiry is off the
table.) The administration asked the Supreme Court to approve that limited
review as adequate or at least to delay its decision until the lower courts
further consider the issue.

Significantly, the administration does not contend that this process provides
the detainees with anything approaching a fair hearing.

Instead, for complicated legal reasons, it contends that these foreign prisoners
held outside the United States may be denied a fair hearing because the
administration has labeled them "enemy combatants."

What all this means is that as they approach the end of their sixth year of
imprisonment, these men have been denied even one fair hearing.

If we observed this conduct by any other country, we would be appalled. We would
say, rightly, that you can't jail people without giving them a chance to defend
themselves. There is and can be no acceptable legal excuse or explanation for
denying people a fair hearing.

That would be so there, and it is so here.

[ The writer was counsel of record for Guantanamo detainees in the cases decided
in their favor by the Supreme Court in June 2004 and is counsel of record for
Guantanamo detainees in the cases pending before the Supreme Court. ]

*


New York Times --

December 30, 2007

TAPES BY CIA LIVED AND DIED TO SAVE IMAGE

by Scott Shane and Mark Mazzetti

http://www.nytimes.com/2007/12/30/washington/30intel.html

WASHINGTON -- If Abu Zubaydah, a senior operative of Al Qaeda, died in American
hands, Central Intelligence Agency officers pursuing the terrorist group knew
that much of the world would believe they had killed him.

So in the spring of 2002, even as the intelligence officers flew in a surgeon
from Johns Hopkins Hospital to treat Abu Zubaydah, who had been shot three times
during his capture in Pakistan, they set up video cameras to record his every
moment: asleep in his cell, having his bandages changed, being interrogated.

In fact, current and former intelligence officials say, the agency's every
action in the prolonged drama of the interrogation videotapes was prompted in
part by worry about how its conduct might be perceived -- by Congress, by
prosecutors, by the American public and by Muslims worldwide.

That worry drove the decision to begin taping interrogations -- and to stop
taping just months later, after the treatment of prisoners began to include
waterboarding. And it fueled the nearly three-year campaign by the agency's
clandestine service for permission to destroy the tapes, culminating in a
November 2005 destruction order from the service's director, Jose A. Rodriguez
Jr.

Now, the disclosure of the tapes and their destruction in 2005 have become just
the public spectacle the agency had sought to avoid. To the already fierce
controversy over whether the Bush administration authorized torture has been
added the specter of a cover-up.

The Justice Department, the CIA's inspector general and Congress are
investigating whether any official lied about the tapes or broke the law by
destroying them. Still in dispute is whether any White House official encouraged
their destruction and whether the CIA deliberately hid them from the national
Sept. 11 commission.

But interviews with two dozen current and former officials, most of whom would
speak about the classified program only on the condition of anonymity, revealed
new details about why the tapes were made and then eliminated. Their accounts
show how political and legal considerations competed with intelligence concerns
in the handling of the tapes.

The discussion about the tapes took place in Congressional briefings and secret
deliberations among top White House lawyers, including a meeting in May 2004
just days after photographs of abuse at Abu Ghraib prison in Iraq had reminded
the administration of the power of such images. The debate stretched over the
tenure of two CIA chiefs and became entangled in a feud between the agency's top
lawyers and its inspector general. The tapes documented a program so closely
guarded that President Bush himself had agreed with the advice of intelligence
officials that he not be told the locations of the secret CIA prisons. Had there
been no political or security considerations, videotaping every interrogation
and preserving the tapes would make sense, according to several intelligence
officials.

"You couldn't have more than one or two analysts in the room," said A. B.
Krongard, the CIA's No. 3 official at the time the interrogations were taped.
"You want people with spectacular language skills to watch the tapes. You want
your top Al Qaeda experts to watch the tapes. You want psychologists to watch
the tapes. You want interrogators in training to watch the tapes."

Given such advantages, why was the taping stopped by the end of 2002, less than
a year after it started?

"By that time," Mr. Krongard said, "paranoia was setting in."

THE DECISION TO TAPE

By several accounts, the decision to begin taping Abu Zubaydah and another
detainee suspected of being a Qaeda operative, Abd al-Rahim al-Nashiri, was made
in the field, with several goals in mind.

First, there was Abu Zubaydah's precarious condition. "There was concern that we
needed to have this all documented in case he should expire from his injuries,"
recalled one former intelligence official.

Just as important was the fact that for many years the CIA had rarely conducted
even standard interrogations, let alone ones involving physical pressure, so
officials wanted to track closely the use of legally fraught interrogation
methods. And there was interest in capturing all the information to be gleaned
from a rare resource -- direct testimony from those who had attacked the United
States.

But just months later, the taping was stopped. Some field officers had never
liked the idea. "If you're a case officer, the last thing you want is someone in
Washington second-guessing everything you did," said one former agency veteran.

More significant, interrogations of Abu Zubaydah had gotten rougher, with each
new tactic approved by cable from headquarters. American officials have said
that Abu Zubaydah was the first Qaeda prisoner to be waterboarded, a procedure
during which water is poured over the prisoner's mouth and nose to create a
feeling of drowning. Officials said they felt they could not risk a public leak
of a videotape showing Americans giving such harsh treatment to bound prisoners.

Heightening the worries about the tapes was word of the first deaths of
prisoners in American custody. In November 2002, an Afghan man froze to death
overnight while chained in a cell at a CIA site in Afghanistan, north of Kabul,
the capital. Two more prisoners died in December 2002 in American military
custody at Bagram Air Base in Afghanistan.

By late 2002, interrogators were recycling videotapes, preserving only two days
of tapes before recording over them, one CIA officer said. Finally, senior
agency officials decided that written summaries of prisoners' answers would
suffice.

Still, that decision left hundreds of hours of videotape of the two Qaeda
figures locked in an overseas safe.

Clandestine service officers who had overseen the interrogations began pushing
hard to destroy the tapes. But George J. Tenet, then the director of central
intelligence, was wary, in part because the agency's top lawyer, Scott W.
Muller, advised against it, current and former officials said.

Yet agency officials decided to float the idea of eliminating the tapes on
Capitol Hill, hoping for political cover. In February 2003, Mr. Muller told
members of the House and Senate oversight committees about the C.I.A's interest
in destroying the tapes for security reasons.

But both Porter J. Goss, then a Republican congressman from Florida and the
chairman of the House Intelligence Committee, and Representative Jane Harman of
California, the ranking Democrat, thought destroying the tapes would be legally
and politically risky. CIA officials did not press the matter.

THE DETENTION PROGRAM

Scrutiny of the CIA's secret detention program kept building. Later in 2003, the
agency's inspector general, John L. Helgerson, began investigating the program,
and some insiders believed the inquiry might end with criminal charges for
abusive interrogations.

Mr. Helgerson -- now conducting the videotapes review with the Justice
Department -- had already rankled covert officers with an investigation into the
2001 shooting down of a missionary plane by Peruvian military officers advised
by the CIA The investigation set off widespread concern within the clandestine
branch that a day of reckoning could be coming for officers involved in the
agency's secret prison program. The Peru investigation often pitted Mr.
Helgerson against Mr. Muller, who vigorously defended members of the clandestine
branch and even lobbied the Justice Department to head off criminal charges in
the matter, according to former intelligence officials

"Muller wanted to show the clandestine branch that he was looking out for them,"
said John Radsan, who served as an assistant general counsel for the CIA from
2002 to 2004. "And his aggressiveness on Peru was meant to prove to the
operations people that they were protected on a lot of other programs, too."

Mr. Helgerson completed his investigation of interrogations in April 2004,
according to one person briefed on the still-secret report, which concluded that
some of the CIA's techniques appeared to constitute cruel, inhuman and degrading
treatment under the international Convention Against Torture. Current and former
officials said the report did not explicitly state that the methods were
torture.

A month later, as the administration reeled from the Abu Ghraib disclosures, Mr.
Muller, the agency general counsel, met to discuss the report with three senior
lawyers at the White House: Alberto R. Gonzales, the White House counsel; David
S. Addington, legal adviser for Vice President Dick Cheney; and John B.
Bellinger III, the top lawyer at the National Security Council.

The interrogation tapes were discussed at the meeting, and one Bush
administration official said that, according to notes of the discussion, Mr.
Bellinger advised the CIA against destroying the tapes. The positions Mr.
Gonzales and Mr. Addington took are unknown. One person familiar with the
discussion said that in light of concerns raised in the inspector general's
report that agency officers could be legally liable for harsh interrogations,
there was a view at the time among some administration lawyers that the tapes
should be preserved.

LOOKING FOR GUIDANCE

After Mr. Tenet and Mr. Muller left the CIA in mid-2004, Mr. Rodriguez and other
officials from the clandestine branch decided again to take up the tapes with
the new chief at Langley, Mr. Goss, the former congressman.

Mr. Rodriguez had taken over the clandestine directorate in late 2004, and
colleagues say Mr. Goss repeatedly emphasized to Mr. Rodriguez that he was
expected to run operations without clearing every decision with superiors.

During a meeting in Mr. Goss's office with Mr. Rodriguez, John A. Rizzo, who by
then had replaced Mr. Muller as the agency's top lawyer, told the new CIA
director that the clandestine branch wanted a firm decision about what to do
with the tapes.

According to two people close to Mr. Goss, he advised against destroying the
tapes, as he had in Congress, and told Mr. Rizzo and Mr. Rodriguez that he
thought the tapes should be preserved at the overseas location. Apparently he
did not explicitly prohibit the tapes' destruction.

Yet in November 2005, Congress already was moving to outlaw "cruel, inhuman and
degrading" treatment of prisoners, and The Washington Post reported that some
CIA prisoners were being held in Eastern Europe. As the agency scrambled to move
the prisoners to new locations, Mr. Rodriguez and his aides decided to use their
own authority to destroy the tapes, officials said.

One official who has spoken with Mr. Rodriguez said Mr. Rodriguez and his aides
were concerned about protection of the CIA officers on the tapes, from Al Qaeda,
as the CIA has stated, and from political pressure.

The tapes might visually identify as many as five or six people present for each
interrogation -- interrogators themselves, whom the agency now prefers to call
"debriefers"; doctors or doctor's assistants who monitored the prisoner's
medical state; and security officers, the official said. Some traveled regularly
in and out of areas where Al Qaeda and other Islamist extremists are active, he
said.

Apart from concerns about physical safety in the event of a leak, the official
said, there was concern for the careers of officers shown on the tapes. "We
didn't want them to become political scapegoats," he said.

According to several current and former officials, lawyers in the agency's
clandestine branch gave Mr. Rodriguez written guidance that he had the authority
to destroy the tapes and that such a move would not be illegal.

One day in November 2005, Mr. Rodriguez sent a cable ordering the destruction of
the recordings. Soon afterward, he notified both Mr. Goss and Mr. Rizzo, taking
full responsibility for the decision.

Former intelligence officials said that Mr. Goss was unhappy about the news, in
part because it was further evidence that as the CIA director he was so weakened
that his subordinates would directly reject his advice. Yet it appears that Mr.
Rodriguez was never reprimanded. Nor is there evidence that Mr. Goss promptly
notified Congress that the tapes were gone.

The investigations over the tapes frustrate some CIA veterans, who say they
believe that the agency is being unfairly blamed for policies of coercive
interrogation approved at the top of the Bush administration and by some
Congressional leaders. Intelligence officers are divided over the use of such
methods as waterboarding. Some say the methods helped get information that
prevented terrorist attacks. Others, like John C. Gannon, a former CIA deputy
director, say it was a tragic mistake for the administration to approve such
methods.

Mr. Gannon said he thought the tapes became such an issue because they would
have settled the legal debate over the harsh methods.

"To a spectator it would look like torture," he said. "And torture is wrong."

*


Slate --

December 28, 2007

LEGAL FICTIONS
The Bush administration's dumbest legal arguments of the year.

by Dahlia Lithwick

http://www.slate.com/id/2179934/

This time last year, I offered up a top 10 list of the most appalling civil-
liberties violations by the Bush administration in 2006. The grim truth is, not
much has changed. The Bush administration continues to limit our basic freedoms,
conceal its own worst behavior, and insist that it does all this in order to
make us more free. In that spirit, it seemed an opportune moment to commemorate
the administration's worst legal justifications and arguments of the year. And
so I humbly offer this new year's roundup: The Bush Administration's Top 10
Stupidest Legal Arguments of 2007.

10. The NSA's eavesdropping was limited in scope.

Not at all. Recent revelations suggest the program was launched earlier than
we'd been led to believe, scooped up more information than we were led to
believe, and was not at all narrowly tailored, as we'd been led to believe.
Surprised? Me neither.

9. Scooter Libby's sentence was commuted because it was excessive.

Dick Cheney's former chief of staff, Scooter Libby, was found guilty of perjury
and obstructing justice in connection with the outing of Valerie Plame. In July,
before Libby had served out a day of his prison sentence, President Bush
commuted his sentence, insisting the 30-month prison sentence was "excessive."
In fact, under the federal sentencing guidelines, Libby's sentence was perfectly
appropriate and consistent with positions advocated by Bush's own Justice
Department earlier this year.

8. The vice president's office is not a part of the executive branch.

We also learned in July that over the repeated objections of the National
Archives, Vice President Dick Cheney exempted his office from Executive Order
12958, designed to safeguard classified national security information. In
declining such oversight in 2004, Cheney advanced the astounding legal
proposition that the Office of the Vice President is not an "entity within the
executive branch" and hence is not subject to presidential executive orders.
When, in January 2007, the Information Security Oversight Office asked Attorney
General Alberto Gonzales to resolve the dispute, Cheney recommended the
executive order be amended to abolish the Information Security Oversight Office
altogether. In a new interview with Mike Isikoff at Newsweek, the director of
the ISOO stated that his fight with Cheney's office was a "contributing" factor
in his decision to quit after 34 years.

7. The Guantanamo Bay detainees enjoy more legal rights than any prisoners of
war in history.

This has been one of the catchiest refrains of the war on terror, right up there
with the claim that the prisoners there are well-fed and cared for. The
government brief in the December Supreme Court appeal on the rights of these
detainees to contest their detentions proudly proclaimed that the "detainees now
enjoy greater procedural protections and statutory rights to challenge their
wartime detentions than any other captured enemy combatants in the history of
war." That certainly sounds plausible. But as my colleague Emily Bazelon
detailed here in Slate, a vast gaggle of historians, constitutional scholars,
and retired military officers vehemently dispute that characterization of the
legal processes afforded the detainees. The argument that Guantanamo prisoners
have greater rights than they would otherwise be afforded relies on deep
distortions of both fact and law.

6. Water-boarding may not be torture.

Water-boarding is torture. It's torture under the Geneva Conventions and has
been treated as a war crime in the United States for decades. The answer to the
question of its legality should be as simple as the answer to whether boiling
prisoners in oil is legal. But in his confirmation hearings to become U.S.
attorney general, Michael Mukasey could not bring himself to agree. He claimed
not to have been "read into" the interrogation program and to be incapable of
speculating about hypothetical techniques. He added that he did not want to
place U.S. officials "in personal legal jeopardy" and that such remarks might
"provide our enemies with a window into the limits or contours of any
interrogation program." Even Sen. Lindsey Graham, R-S.C., seems to be catching
on to what it means when senior legal advisers find themselves incapable of
calling water-boarding torture.

5. Everyone who has ever spoken to the president about anything is barred from
congressional testimony by executive privilege.

This little gem of an argument was cooked up by the White House last July when
the Senate judiciary committee sought the testimony of former White House
political director Sara Taylor, as well as that of former White House counsel
Harriet Miers, in connection with the firing of nine U.S. attorneys for partisan
ideological reasons. Taylor was subpoenaed in June and, according to her
lawyers, she wanted to testify but was barred by White House counsel Fred
Fielding's judgment that the president could compel her to assert executive
privilege and forbid her testimony. As Bruce Fein argued in Slate, that dramatic
over-reading of the privilege would both preclude congressional oversight of any
sort and muzzle anyone who'd ever communicated with the president, regardless of
their wish to talk.

4. Nine U.S. attorneys were fired by nobody, but for good reason.

Of course, the great legal story of 2007 was the unprecedented firing of nine
U.S. attorneys who either declined to prosecute Democrats or were too successful
in prosecuting Republicans. After months of congressional hearings, subpoenas,
and investigations, the mastermind behind the plan to replace these prosecutors
with "loyal Bushies" has yet to be determined. The decision is instead blamed on
a "process" wherein unnamed senior department officials came to a "consensus"
decision. No one is willing to name names, even though the firings were
ostensibly legal, because, in the words of the president himself, these
prosecutors all "serve at the pleasure of the president" and can be fired for
any reason. Nevertheless, the firing of the nine U.S. attorneys -- many of whom
had stellar records and job reviews -- remains shrouded in secrecy, although at
least according to everyone who's testified, they were all fired for good
reasons (which also cannot be articulated).

3. Alberto Gonzales.

I am forced to put the former attorney general into his own category only
because were I to attempt to round up his best legal whoppers of the calendar
year, it would overwhelm the rest of the list. As Paul Kiel over at Talking
Points Memo so aptly put it earlier this year, Gonzales was and is clearly "the
lying-est attorney general in recent history." Kiel went on to catalog Gonzales'
six most egregious legal lies of the year, but I'll focus here on just two.
First, his claim at a March press conference that he "was not involved in seeing
any memos, was not involved in any discussions about what was going on" with
respect to the U.S. attorney firings. This was debunked shortly thereafter when
Kyle Sampson testified that Gonzales was frequently updated throughout the
process. Second, his April testimony that he had not "talked to witnesses
because of the fact that I haven't wanted to interfere with this investigation
and department investigations," which was promptly contradicted by Monica
Goodling's testimony about his efforts to coordinate his version of the story
with hers.

2. State secrets.

Again, it's virtually impossible to cite the single most egregious assertion by
the Bush administration of the state-secrets privilege, because there are so
many to choose from. This doctrine once barred the introduction into court of
specific evidence that might compromise national security, but in the hands of
the Bush administration, it has ballooned into a doctrine of blanket immunity
for any conduct the administration wishes to hide. The privilege was invoked in
2007 to block testimony about its torture and extraordinary rendition program,
its warrantless surveillance program, and to defend the notion of telecom
immunity for colluding in government eavesdropping, among other things. No
longer an evidentiary rule, the state-secrets privilege has become one of the
administration's surest mechanisms for shielding its most egregious activities.

1. The United States does not torture.

First there was the 2002 torture memo. That was withdrawn. Then there was the
December 2004 statement that declared torture "abhorrent." But then there was
the new secret 2005 torture memo. But members of Congress were fully briefed
about that. Except that they were not. There was Abu Ghraib. There were the
destroyed CIA tapes. So you see, the United States does not torture. Except for
when it does.

[ Dahlia Lithwick is a Slate senior editor. ]

*


Melbourne Herald Sun --

December 28, 2007

FATHER THE BEST TO TAKE CONTROL

by Julian Burnside

http://www.news.com.au/heraldsun/story/0,21985,22977677-5000117,00.html

WHEN David Hicks walks from prison in Adelaide tomorrow it will be the first
time in six years he will be free.

Whether he is truly free is another matter, in many senses.

He was captured by the Northern Alliance, who sold him to the Americans. The
Americans held him in Guantanamo until March 2007.

For the past nine months he has served a prison term in a South Australian
prison. While he was in Guantanamo, he was denied the rights and protections
offered to criminal suspects.

He was denied the rights and protections offered to prisoners of war.

He was held in solitary confinement most of the time, and was interrogated
hundreds of times.

The Australian Government did nothing to help him.

Two people in particular stood up for Hicks consistently: Major Michael Mori,
and David Hicks' father.

Terry Hicks was the most courageous father a son could ever have.

He did not approve of what his son was alleged to have done, but he never gave
up in his fight to see justice done.

About a year ago, Terry Hicks' struggle bore fruit.

The Australian public became concerned at the treatment Hicks was receiving at
the hands of our ally, America. The Australian Government then began to press
for a trial.

Eventually Hicks was charged with giving material aid to a terrorist
organisation (al-Qaida).

The charge specified that he had guarded a tank for a week in October 2001, and
fled in retreat to Kunduz in November 2001 before being captured.

He pleaded guilty rather than face a trial by military commission.

It was an irresistible deal: nine months in an Australian jail rather than a
trial in which hearsay evidence and evidence procured by coercive interrogation
techniques would be admitted.

When he walks out of prison into the South Australian sunshine, he will still
not be quite free.

In anticipation of Hicks' release from Yatala prison, the Australian Government
obtained a control order against him.

The control order will impose on him a curfew from midnight to 6am, and will
require him to report to police three times a week.

Although it is not clear that we know the full reasons for the control order, it
is apparently based on the theory that he is vulnerable, and may be used by
others with treacherous plans.

There are two things to be said about this.

First, it is good that the evidence on which the control order is based has been
shown to Hicks' lawyer, David McLeod.

The Criminal Code makes it possible for a control order to be obtained on secret
evidence.

Curtailing a person's freedom on the basis of secret evidence is very dangerous,
and should never be tolerated in a democratic society based on the rule of law.

Second, the control order looks so pointless as to be merely vindictive.

If the authorities are concerned that he might be tempted to break Australian
anti-terror laws by training with terrorist groups or by helping them in some
other way, it is difficult to see how the control order will make any
difference.

In any event, after the experience of the past six years, it is not likely that
Hicks will be tempted to commit an offence that could put him away for another
20 years.

And if he is inclined to break the law, the control order does not seem likely
to get in his way.

The idea that traitors work only in the early hours of the morning sounds a bit
Boys Own Annual.

By seeking a control order, the Government has marked him out so the rest of us
can be wary of him.

In one sense, the Government may have a point: David Hicks is certainly fragile.

Five years of solitary confinement and abuse will do that to a person.

He needs careful treatment if we are to salvage something of him.

But a control order is not likely to help his rehabilitation into a community
that, for five years, abandoned him to his fate.

After all he has been through, Hicks needs to be given a genuine opportunity to
rebuild his life.

It seems to me that the best way to rehabilitate David Hicks is to put him in
the care of Terry Hicks, whose values and principles are likely to be a much
better influence than the stigma of a pointless control order.

By any measure, Hicks' ideology in 2001 was not admirable, and his acts were
foolish but minor.

He has been punished much more than many who commit more serious crimes. It is
time to give him a fair go.

[ Julian Burnside is president of Liberty Victoria ]

*


Los Angeles Times --

December 26, 2007

MILITARY COMMISSIONS: FAIR OR FOUL?
A former prosecutor responds to a blowback by his ex-boss.

By Morris D. Davis

http://www.latimes.com/news/opinion/la-oew-morris26dec26,0,7831090.story

Air Force Brig. Gen. Thomas W. Hartmann, who responded negatively to my Op-Ed
article explaining my resignation, had an opportunity on Dec. 11 to appear with
me and engage in thoughtful debate, under oath, at a Senate hearing on the
rights of Guantanamo detainees. An order issued by the Office of the Secretary
of Defense on Dec. 6 prohibited me from accepting Sen. Dianne Feinstein's
invitation to testify. This latest action to silence me was consistent with the
gag order Hartmann gave me on Oct. 4 after I resigned, expressly forbidding me
to communicate with anyone in the news media about the reasons for my
resignation. In a figurative sense, I suppose I'm not the first person
associated with Guantanamo to be bound and gagged before having cold water
poured on him, although in my case it is intended to induce me not to talk.

I'm not going to get into a tit-for-tat with Hartmann, but I do want to address
a few of his main points. Before doing so, I want to emphasize three things.
First, I have the utmost respect for the dedication and integrity of the men and
women I worked with on the military commissions. Second, I believe the Military
Commissions Act is an excellent piece of legislation that provides the framework
for full, fair and open trials. My concerns are centered on the implementation
of military commissions within that framework. Third, there are some incredibly
bad men at Guantanamo, including a few that I believe deserve to be executed if
found guilty. The problems with the military commissions process do not negate
their culpability.

Hartmann states that he directed me to evaluate cases -- including evidence,
charges and preparation -- more carefully. Had it been as simple as that there
would be no problem, but instead, convening authority Susan Crawford's staff,
including her legal advisor, inserted themselves into these prosecutorial
matters. Hartmann is right that his actions were deemed permissible by an
independent panel, but I respectfully disagree. Their conclusion was based on
analogy to ordinary court-martial practice in which the convening authority (the
commanding officer) and his or her lawyer (the staff judge advocate) have an
active role in the court-martial process.

But even where courts-martial are concerned, active involvement has been
criticized. A report <http://www.nimj.org/documents/Cox_Comm_Report.pdf>
prepared for the National Institute of Military Justice in 2001 said:

    (T)he far-reaching role of commanding officers in the court-martial process
    remains the greatest barrier to operating a fair system of criminal justice
    within the armed forces.... The combined power of the convening authority to
    determine which charges shall be preferred, the level of court-martial, and
    the venue where the charges will be tried, coupled with the idea that this
    same convening authority selects the members of the (jury) to try the cases,
    is unacceptable in a society that deems due process of law to be the bulwark
    of a fair justice system.

Involvement is defended on the grounds that the convening authority, as the
commanding officer, is responsible for the mission readiness of his or her
organization, which depends on the morale, good order and discipline of the
troops. The accused on trial in a court-martial is one of the convening
authority's own and the disciplinary action is intended, in large part, to
promote good order and discipline. That justification is subject to criticism in
court-martial practice; it is nonexistent in military commissions practice.
Crawford is not responsible for the mission readiness of Al Qaeda, and she owes
no duty to Osama bin Laden. Military commissions are about retribution, not
readiness. To permit the convening authority's staff to intervene in
prosecutorial decisions perpetuates the perception that military commissions are
rigged to secure convictions. The prosecutors in the U.N.-sanctioned war crimes
courts in Sierra Leone and Cambodia are assured independence. Prosecutors in
military commissions conducted in the name of the United States should be too.

Hartmann claims that the military commissions are moving forward "fairly and
transparently," and he notes that the accused will be allowed to review
everything that goes to the jury. Permitting the accused to see the evidence --
a right that only came at the insistence of Congress -- goes to the "fairly"
part, but not the "transparently" part. He and I appear to have different
perceptions of what transparency means. In my view, the trials will not be
transparent if the courtroom doors are closed to the media and other observers
for significant portions of the proceedings. Telling the world, "trust me, if
only you had seen what we did in court today, you would have been so impressed,"
is doomed to failure.

Working through the classification review process in an effort to get evidence
declassified for use in an open proceeding is tedious and time-consuming. My
prediction is that you will see charges brought against some of the most
notorious detainees very soon, for whatever reason, and before all of the
evidence has gone through classification review. That will get some noteworthy
cases into court, but largely behind closed doors and out of public view. That
is not transparency.

Hartmann says the military commissions are consistent with an American military
justice system that is the envy of the world. Apparently he's privy to some
worldwide polling data I haven't seen, because it appears to me military
commissions have created worldwide enmity, not envy. To overcome that, there
must be two assurances from the highest levels: One, that evidence derived from
waterboarding will not be introduced before a military commission, and two, that
all reasonable efforts to keep the proceedings open to the media and other
observers will be exhausted before closing any portion of any trial. That's the
minimum American justice demands.

*


The Times (UK) --

December 23, 2007

CIA CHIEF TO DRAG WHITE HOUSE INTO TORTURE COVER-UP STORM

by Sarah Baxter

http://www.timesonline.co.uk/tol/news/world/us_and_americas/article3087293.ece

THE CIA chief who ordered the destruction of secret videotapes recording the
harsh interrogation of two top Al-Qaeda suspects has indicated he may seek
immunity from prosecution in exchange for testifying before the House
intelligence committee.

Jose Rodriguez, former head of the CIA's clandestine service, is determined not
to become the fall guy in the controversy over the CIA's use of torture,
according to intelligence sources.

It has emerged that at least four White House staff were approached for advice
about the tapes, including David Addington, a senior aide to Dick Cheney, the
vice-president, but none has admitted to recommending their destruction.

Vincent Cannistraro, former head of counterterrorism at the CIA, said it was
impossible for Rodriguez to have acted on his own: "If everybody was against the
decision, why in the world would Jose Rodriguez -- one of the most cautious men
I have ever met -- have gone ahead and destroyed them?"

The tapes recorded the interrogations of Abu Zubaydah and Abd al-Rahim al-
Nashiri, two suspected Al-Qaeda leaders, over hundreds of hours while they were
held in secret "ghost" prisons. According to testimony from a former CIA
officer, Zubaydah was subjected to waterboarding, a form of torture that
simulates drowning, and "broke" after 35 seconds. He is believed to have been
interrogated in Thailand. The tapes were destroyed in 2005. Both men are now
held in Guantanamo Bay.

The House intelligence committee has subpoenaed Rodriguez to appear for a
hearing on January 16. Last week the CIA began opening its files to
congressional investigators. Silvestre Reyes, a Democrat who is chairing the
committee, has said he was "not looking for scapegoats" -- a hint to Rodriguez
that he would like him to talk.

Larry Johnson, a former CIA officer, believes the scandal could reach deep into
the White House. "The CIA and Jose Rodriguez look bad, but he's probably the
least culpable person in the process. He didn't wake up one day and decide, ‘I'm
going to destroy these tapes.' He checked with a lot of people and eventually he
is going to get his say."

Johnson says Rodriguez got his fingers burnt during the Iran-contra scandal
while working for the CIA in Latin America in the 1980s. Even then he sought
authorisation from senior officials. But when summoned to the FBI for
questioning, he was told Iran-contra was "political -- get your own lawyer".

He learnt his lesson and recently appointed Robert Bennett, one of Washington's
most skilled lawyers, to handle the case of the destroyed interrogation tapes.
"He has been starting to get his story out and was smart to get Bennett," said
Johnson.

The Justice Department has launched its own inquiry into the destruction of the
tapes. It emerged yesterday that the CIA had misled members of the 9-11
Commission by not disclosing the existence of the tapes, in potential violation
of the law. President George W Bush said last week he could not recall learning
about the tapes before being briefed about them on December 6 by Michael Hayden,
the CIA director.

"It looks increasingly as though the decision was made by the White House," said
Johnson. He believes it is "highly likely" that Bush saw one of the videos, as
he was interested in Zubaydah's case and received frequent updates on his
interrogation from George Tenet, the CIA director at the time.

It has emerged that the CIA did preserve two videotapes and an audiotape of
detainee interrogations conducted by a foreign government, which may have been
relevant to the trial of Zacarias Moussaoui, the Al-Qaeda conspirator.

The CIA told a federal judge in 2003 that no such recordings existed but has now
retracted that testimony. One of the tapes could show the interrogation of Ramzi
Binalshibh, a September 11 conspirator, who was allegedly handed to Jordan for
questioning.

*


Harper's --

December 23, 2007

AN UPDATE ON THE TRIAL OF BILAL HUSSEIN

by Scott Horton

http://harpers.org/archive/2007/12/hbc-90001977

America's first major trial concerning press freedom involved a German newspaper
man, John Peter Zenger. He was accused of having libeled the Royal Governor,
William Cosby. Andrew Hamilton won a favorable jury verdict in that case that
set the tone for American attitudes about a free press. Iraq's equivalent of the
Zenger case is being conducted now before an Iraqi investigating judge. In the
dock sits the Pulitzer Prize winning Associated Press photojournalist Bilal
Hussein. The prosecution is brought by the American Pentagon, under a Secretary
of Defense who states -- rather unconvincingly, that "the press is not the
enemy." I have just been given an update on the handling of the Bilal Hussein
case from a Pentagon source who claimed to have been briefed on the proceedings.

Bilal's case has been assigned to investigating Judge Dhia al-Kinani, who has
already conducted a long series of evidentiary hearings in the case. The source
said the Pentagon is confident that they will secure a conviction in the case.
"Nothing is being left to chance in this case. It's important and a lot of
resources are being thrown at it." The Pentagon isn't concerned about evidence
or legal arguments. I wonder why. Some other points.

* Under strong pressure from the U.S. military, the investigating judge closed
the case and imposed a gag order. This was requested principally because the
U.S. military was concerned about unfavorable media coverage. The Pentagon media
strategy involves leaking information as it finds convenient to "friendly new
media" (this I take to be wingnut bloggers), but restricting the flow of
information to traditional media. The Iraqi judge is fully cooperating with his
gag order.

* The U.S. military has assigned a team of five to act effectively as
prosecutors in the case. The team is headed by a JAG Captain named Kelvey. (Says
the source: "We recognize, of course, that the U.S. has no authority to
prosecute a case in an Iraqi court. That's one of the reasons that a gag order
was essential.")

* The Iraqi judge is also allowing the U.S. military to present evidence by
witnesses through remote television hook-ups from undisclosed locations. This is
done particularly to be sure that Bilal Hussein would not be able to cross-
examine any witnesses.

* The Pentagon was particularly concerned about the prospect of Bilal Hussein
getting effective defense from his lawyer, former federal prosecutor Paul
Gardephe. The judge was told to refuse to allow Bilal Hussein's U.S. lawyer to
participate in the case. The judge accepted this advice. Consequently, the U.S.
military has a five-man team to press its case, but Bilal Hussein's lawyer is
silenced and not permitted to participate -- and all of this has occurred as a
result of U.S. Government intervention with the court. The irony of course is
that under Iraqi law, the U.S. military has no authority or right to appear and
prosecute, but Bilal Hussein's chosen counsel has an absolute right.

* The U.S. military continues to keep Hussein in their custody and will not
allow his lawyer, Gardephe, access to him to conduct interviews or trial
preparation without having both a U.S. military representative and an
interpreter in the room at all times. Under international norms, this means that
Bilal Hussein is not permitted access to counsel.

* The Pentagon is convinced that regardless of the evidence presented and the
arguments made, Bilal Hussein will be convicted based on its influence wielding
and pressure tactics. "The judge announced on the opening day that he would
recommend conviction and refer the matter to the Central Criminal Court of Iraq.
This was before any evidence or arguments had been produced. Our folks were
elated, but concerned that his somewhat rash statement would undermine the
credibility of the proceedings. They had expected him to say this only at the
end of the proceedings."

I have a lot of sympathy for the Iraqi judge in this case. It's difficult for
someone in the United States to imagine the sort of pressure that one of these
Iraqi investigating judges operates under. In the spring of last year, I
interviewed several of them. A number of judges and lawyers who practice in the
Baghdad Central Criminal Court have been assassinated, and concerns for personal
security understandably run very high. One judge described to me how an American
Army major had intimidated and cajoled him about a case, pressuring him into a
false decision. "I felt very bad about it," he said. "But on the other hand, her
unit was responsible for my security. What could I do?"

Still this sort of conduct is the exception. Most of the Americans providing
support to the court and its judges perform their functions in a capable and
professional way, and most of the judges went out of their way to recount their
experiences showing professionalism and kindness. The exceptions seem to come
when there is heavy pressure out of Washington for a particular result. Like in
the case of Bilal Hussein.

Maybe you thought that the United States was in Iraq to introduce democracy and
the rule of law. Sometimes it does work very hard to that end. Then there are
the cases like the secret prosecution of Bilal Hussein, where the behavior
patterns of a petty dictatorship come creeping out. Unfortunately, these are the
kinds of incidents which are likely to be remembered when American soldiers have
left Iraq.

The case of Bilal Hussein is sending a distinct message to the government in
Baghdad and to the dwindling number of American allies in the region.
Persecuting journalists is fine with us, it says. And best to do it in the dark,
so that no one sees.

*


New York Times --

December 22, 2007

9/11 PANEL STUDY FINDS THAT CIA WITHHELD TAPES

by Mark Mazzetti

http://www.nytimes.com/2007/12/22/washington/22intel.html

WASHINGTON -- A review of classified documents by former members of the Sept. 11
commission shows that the panel made repeated and detailed requests to the
Central Intelligence Agency in 2003 and 2004 for documents and other information
about the interrogation of operatives of Al Qaeda, and were told by a top CIA
official that the agency had "produced or made available for review" everything
that had been requested.

The review was conducted earlier this month after the disclosure that in
November 2005, the CIA destroyed videotapes documenting the interrogations of
two Qaeda operatives.

A seven-page memorandum prepared by Philip D. Zelikow, the panel's former
executive director, concluded that "further investigation is needed" to
determine whether the CIA's withholding of the tapes from the commission
violated federal law.

In interviews this week, the two chairmen of the commission, Lee H. Hamilton and
Thomas H. Kean, said their reading of the report had convinced them that the
agency had made a conscious decision to impede the Sept. 11 commission's
inquiry.

Mr. Kean said the panel would provide the memorandum to the federal prosecutors
and congressional investigators who are trying to determine whether the
destruction of the tapes or withholding them from the courts and the commission
was improper.

A CIA spokesman said that the agency had been prepared to give the Sept. 11
commission the interrogation videotapes, but that commission staff members never
specifically asked for interrogation videos.

The review by Mr. Zelikow does not assert that the commission specifically asked
for videotapes, but it quotes from formal requests by the commission to the CIA
that sought "documents," "reports" and "information" related to the
interrogations.

Mr. Kean, a Republican and a former governor of New Jersey, said of the agency's
decision not to disclose the existence of the videotapes, "I don't know whether
that's illegal or not, but it's certainly wrong." Mr. Hamilton, a former
Democratic congressman from Indiana, said that the CIA "clearly obstructed" the
commission's investigation.

A copy of the memorandum, dated Dec. 13, was obtained by The New York Times.

Among the statements that the memorandum suggests were misleading was an
assertion made on June 29, 2004, by John E. McLaughlin, the deputy director of
central intelligence, that the CIA "has taken and completed all reasonable steps
necessary to find the documents in its possession, custody or control
responsive" to formal requests by the commission and "has produced or made
available for review" all such documents.

Both Mr. Kean and Mr. Hamilton expressed anger after it was revealed this month
that the tapes had been destroyed. However, the report by Mr. Zelikow gives them
new evidence to buttress their views about the CIA's actions and is likely to
put new pressure on the Bush administration over its handling of the matter. Mr.
Zelikow served as counselor to Secretary of State Condoleezza Rice from 2005 to
the end of 2006.

In an interview on Friday, Mr. McLaughlin said that agency officials had always
been candid with the commission, and that information from the CIA proved
central to their work.

"We weren't playing games with them, and we weren't holding anything back," he
said. The memorandum recounts a December 2003 meeting between Mr. Kean, Mr.
Hamilton and George J. Tenet, then the director of central intelligence. At the
meeting, it says, Mr. Hamilton told Mr. Tenet that the CIA should provide all
relevant documents "even if the commission had not specifically asked for them."

According to the memorandum, Mr. Tenet responded by alluding to several
documents that he thought would be helpful to the commission, but made no
mention of existing videotapes of interrogations.

The memorandum does not draw any conclusions about whether the withholding of
the videotapes was unlawful, but it notes that federal law penalizes anyone who
"knowingly and willfully" withholds or "covers up" a "material fact" from a
federal inquiry or makes "any materially false statement" to investigators.

Mark Mansfield, the CIA spokesman, said that the agency had gone to "great
lengths" to meet the commission's requests, and that commission members had been
provided with detailed information obtained from interrogations of agency
detainees.

"Because it was thought the commission could ask about the tapes at some point,
they were not destroyed while the commission was active," Mr. Mansfield said.

Intelligence officials have said the tapes that were destroyed documented
hundreds of hours of interrogations during 2002 of Abu Zubaydah and Abd al Rahim
al-Nashiri, two Qaeda suspects who were taken into CIA custody that year.

According to the memorandum from Mr. Zelikow, the commission's interest in
obtaining accounts from Qaeda detainees in CIA custody grew out of its attempt
to reconstruct the events leading up to the Sept. 11 attacks in the United
States.

Its requests for documents from the CIA began in June 2003, when it first sought
intelligence reports describing information obtained from prisoner
interrogations, the memorandum said. It later made specific requests for
documents, reports and information related to the interrogations of specific
prisoners, including Abu Zubaydah and Mr. Nashiri.

In December 2003, the commission staff sought permission to interview the
prisoners themselves, but was permitted instead to give questions to CIA
interrogators, who then posed the questions to the detainees. The commission
concluded its work in June 2004, and in its final report, it praised several
agencies, including the CIA, for their assistance.

Abbe D. Lowell, a veteran Washington lawyer who has defended clients accused of
making false statements and of contempt of Congress, said the question of
whether the agency had broken the law by omitting mention of the videotapes was
"pretty complex," but said he "wouldn't rule it out."

Because the requests were not subpoenas issued by a court or Congress, CIA
officials could not be held in contempt for failing to respond fully, Mr. Lowell
said. Apart from that, however, it is a crime to make a false statement "in any
matter within the jurisdiction of the executive, legislative or judicial
branch."

The Sept. 11 commission received its authority from both the White House and
Congress.

On Friday, the leaders of the Senate Judiciary Committee sent a letter to
Attorney General Michael B. Mukasey and to Mike McConnell, the director of
national intelligence, asking them to preserve and produce to the committee all
remaining video and audio recordings of "enhanced interrogations" of detainees
in American custody.

Signed by Senator Patrick Leahy, Democrat of Vermont, and Senator Arlen Specter,
Republican of Pennsylvania, the letter asked for an extensive search of the
White House, CIA and other intelligence agencies to determine whether any other
recordings existed of interrogation techniques "including but not limited to
waterboarding."

Government officials have said that the videos destroyed in 2005 were the only
recordings of interrogations made by CIA operatives, although in September
government lawyers notified a federal judge in Virginia that the agency had
recently found three audio and video recordings of detainees.

Intelligence officials have said that those tapes were not made by the CIA, but
by foreign intelligence services.

[ Scott Shane contributed reporting. ]

*


Mother Jones --

December 21, 2007

OPERATION STOP TALKING

John Kiriakou called it hypocritical for the White House and Congress to point
fingers at the CIA for its harsh interrogation techniques. Now his former
employer, with the help of the Justice Department, is trying to shut him up.

By Laura Rozen

http://motherjones.com/washington_dispatch/2007/12/john-kiriakou.html

When spies speak, they often draw trouble.

After news broke earlier this month that the CIA had destroyed videotapes
showing agency operatives using harsh techniques to interrogate two terrorism
suspects (among them Abu Zubaida), John Kiriakou decided it was time to step out
from the shadows. Speaking to ABC News, among other news outlets, the 14-year
veteran of the CIA, who retired in 2004, said he had been part of the team that
interrogated Zubaida after his March 2002 capture in Pakistan. According to
Kiriakou's account, Zubaida broke after being waterboarded for 35 seconds,
providing information that "probably saved lives."

Though he did not personally use the controversial interrogation technique on
the detainee, Kiriakou said he believed at the time that it had been effective
in getting the Al Qaeda suspect to talk. He since has come to have his doubts
about the use of waterboarding. "Like a lot of Americans, I'm involved in this
internal, intellectual battle with myself weighing the idea that waterboarding
may be torture versus the quality of information that we often get after using
the waterboarding technique," he told ABC News. "And I struggle with it."

After Kiriakou became one of the first CIA officials to publicly discuss details
of the agency's rough treatment of Zubaida, the Department of Justice, according
to McClatchy's Jonathan Landay, this week opened a criminal investigation into
whether Kiriakou had disclosed classified information. (The case was referred to
the department by the CIA.) It could be that the feds are attempting to stifle
further disclosures by Kiriakou, who has retained prominent whistleblower
attorney Mark Zaid. While Zaid plays down the investigation, calling it
"perfectly expected and routine," it's quite likely that Kiriakou would have had
more to say, in part as a result of where he served in the agency. Not only in
Pakistan, but back at Langley, Kiriakou was in a position to know about
important debates inside the CIA, regarding interrogation techniques and other
high-level matters.

In the summer of 2002, after returning from a posting as the Counterterrorism
Center chief in Pakistan, where he was involved in the questioning of Zubaida,
Kiriakou served as the executive assistant to Robert Grenier, then the CIA's
Iraq mission manager. Grenier, a former station chief in Pakistan and director
of the CIA's counterterrorism center, later was called as a witness at the trial
of the vice president's former chief of staff, I. Lewis "Scooter" Libby -- and
his testimony proved damaging to Libby's defense.

According to a declassified document filed with the court after the Libby trial
and obtained by Mother Jones, Kiriakou authored a June 10, 2003, email sent to
several CIA officials. The message apparently was written in response to intense
efforts at that time by the vice president's office to learn how Plame's
husband, Ambassador Joseph Wilson, had been selected to go on a CIA-sponsored
fact-finding mission to Niger. The email makes clear that senior CIA officials,
including Kiriakou's boss and the Deputy Director of Central Intelligence, did
not know who Valerie Wilson was at the time. Prodded by Cheney's office, they
were seeking information on her role at the agency prior to a scheduled
conversation with Libby the next day.

Libby later would claim that he did not learn who Plame was until two days
later, from the vice president (and that he then forgot about her CIA connection
until he was reminded a month later by journalists).

It's unclear whether Kiriakou will illuminate his role in the Plame saga or say
more about the interrogation techniques employed by the CIA. (In a brief
interview, Grenier, now retired, said that it was his understanding that his
former assistant may be writing a book.) For now, Kiriakou is referring all
calls to his lawyer, Zaid, who explained in an email his client's decision to go
public. "John was completely uncomfortable with the accusations that the CIA has
'torturers'. Here it was that the Bush administration ordered and approved the
techniques but yet it would not come to the public defense of the Agency, not
even to Members of Congress, several of whom obviously had been 'read into'
details of the CIA's interrogation program."

"The hypocrisy is breathtaking," Zaid added, "and John felt it necessary,
appropriate, and lawful to say something."

While Kiriakou felt compelled to offer a defense -- albeit a nuanced one -- of
the CIA's use of waterboarding, FBI accounts of Zubaida's interrogation, as
reported by the Washington Post and by journalist Ron Suskind, cast doubt on
whether the harsh interrogation produced any valuable information. "FBI
officials, including agents who questioned [Zubaida] after his capture or
reviewed documents seized from his home, have concluded that even though he knew
some al-Qaeda players, he provided interrogators with increasingly dubious
information as the CIA's harsh treatment intensified in late 2002," the Post
reported this week. "In legal papers prepared for a military hearing, Abu
Zubaida himself has asserted that he told his interrogators whatever they wanted
to hear to make the treatment stop."

Meanwhile, sources say that many CIA officials view Kiriakou's efforts to
explain the rationale behind the CIA's interrogation techniques to the public as
hopeless, if well intentioned. Says his former boss, Grenier, "I think it was
extremely ill advised."

*


The Age (Melbourne) --

December 22, 2007

ONE-YEAR CONTROL ORDER ON HICKS

by Penelope Debelle
http://www.theage.com.au/articles/2007/12/21/1198175340660.html

(Adelaide) CONFESSED terrorism supporter David Hicks wants to become a "model
citizen" and will abide by strict anti-terrorist controls imposed on him
yesterday by an Adelaide court.

Hicks will be fingerprinted three times a week and is banned from leaving
Australia after he leaves jail next Saturday.

His lawyers did not oppose an interim 12-month control order sought by the
Australian Federal Police, the second such order imposed in Australia under new
anti-terror laws.

Hicks will begin reporting to an undisclosed South Australian police station
from January 31, the first Monday after his release from the high-security
Yatala Labour Prison.

His lawyer, David McLeod, said Hicks intended to become "a model citizen" and
would obey the eight-part order.

"I think you will find that David's position is that he simply wants to
assimilate back into society," Mr McLeod said. "He has had six long years to
consider his past activities and by any view of them, 5½ years in the world's
most notorious prison plus six months in isolation in the toughest part of
Yatala is punishment enough."

Hicks will have to live at a secret address approved by the AFP and abide by a
curfew from midnight to 6am.

Hicks' passport has been cancelled and he is forbidden to leave Australia.

He must not communicate with known terrorists and is banned from owning or
communicating information about weapons, explosives, combat skills and military
tactics. He is also banned from having firearms, ammunition or explosive
devices.

He is restricted to using a single mobile phone and SIM card issued by the AFP,
an approved email account and internet server. He must not use a payphone or a
satellite phone.

If he breaches any terms of the order, he can be jailed for up to five years.

The order imposed on Hicks is similar to that given last year to Melbourne man
Jack Thomas, who is facing a retrial on terror-related charges.

In making the order, federal magistrate Warren Donald said that in the absence
of other evidence, he accepted that Hicks had undertaken four al-Qaeda training
courses which taught him guerilla tactics and mountain warfare including
advanced weaponry, suburban warfare and advanced surveillance. The training made
him a valuable terrorist resource and because of this, the community and Hicks
required protection.

"The training has provided Mr Hicks with the capability to execute plans for
terrorist acts or to provide instruction to others in this regard," Mr Donald
said.

He found that Hicks' expertise could lead aspiring terrorists to seek him out.
His contact with the world's most-wanted terrorist, Osama bin Laden, whom Hicks
had met 20 times and referred to as "lovely brother" in a letter to his mother,
could lead extremist groups to seek his skills and experience.

"Due to his knowledge and skills, he is a potential resource for the planning or
preparation of a terrorist act," Mr Donald said.

He said he may consider allowing Hicks to report to police on the phone rather
than in person, if a safe alternative was found before the case returned to
court on February 18.

Hicks' father, Terry, said the reporting provisions were restrictive and would
interfere with Hicks' hopes of finding employment and studying at university.

"David's been through six years of bloody hell, so what's another 12 months?" he
said.

Mr Donald accepted AFP evidence that Hicks had been an al-Qaeda operative for at
least two weeks in Afghanistan after September 11. He was in trenches at
Kandahar airport and was ordered to guard a tank in a village behind the city.

There was no evidence he fired a shot, but he had left the airport and tried to
get to the front line of fighting between the Taliban and the US-backed Northern
Alliance to train others.

He reached the back of the front line but he fled when it collapsed and was
pursued by the Northern Alliance, who arrested him when he tried to travel back
to Pakistan by taxi.

Mr Donald also accepted that Hicks had wanted to return to Australia at the
completion of advanced weaponry and warfare training before September 11 but had
no money and his visa had expired. He had travelled to Pakistan, leaving his
belongings in Afghanistan to try to sort out his visa and obtain money.

"He then learned of the events of September 11, returned to Afghanistan to
collect his belongings and then discovered that the borders had been closed,
preventing his return to Pakistan," Mr Donald said.

Further justifying the order, Mr Donald singled out parts of letters sent by
Hicks that incriminated him in extremism, including a reference to himself as "a
practising Muslim with military experience" who could help in conflicts where
"Christians and Jews are fighting Muslims in Eritrea and the same in Nigeria".

"So as a Muslim (young and fit) my and (our) responsibility is to protect my
brothers for the sake of Islam, to protect them from aggressive non-believers
and not let them destroy Islam," Hicks wrote home.

Mr McLeod said yesterday Hicks was no longer the same person and had not been a
Muslim for the past five years.

He said Hicks had written other letters from Guantanamo Bay that could be put
before the court next year, to show he had changed.

Mr Donald opened the door to altering the conditions on February 18, saying
Hicks could come to court to make submissions. Mr McLeod, who visited Hicks in
prison yesterday, said it was unlikely that Hicks would appear.

"David's mental state is very fragile and whether he has the strength to fight
the order or to seek variations to the conditions remains to be seen," Mr McLeod
said.

"I suspect he simply wants to get on with his life."

*


New York Times --

December 19, 2007

BUSH LAWYERS DISCUSSED FATE OF CIATAPES

by Mark Mazzetti and Scott Shane

http://www.nytimes.com/2007/12/19/washington/19intel.html

WASHINGTON -- At least four top White House lawyers took part in discussions
with the Central Intelligence Agency between 2003 and 2005 about whether to
destroy videotapes showing the secret interrogations of two operatives from Al
Qaeda, according to current and former administration and intelligence
officials.

The accounts indicate that the involvement of White House officials in the
discussions before the destruction of the tapes in November 2005 was more
extensive than Bush administration officials have acknowledged.

Those who took part, the officials said, included Alberto R. Gonzales, who
served as White House counsel until early 2005; David S. Addington, who was the
counsel to Vice President Dick Cheney and is now his chief of staff; John B.
Bellinger III, who until January 2005 was the senior lawyer at the National
Security Council; and Harriet E. Miers, who succeeded Mr. Gonzales as White
House counsel.

It was previously reported that some administration officials had advised
against destroying the tapes, but the emerging picture of White House
involvement is more complex. In interviews, several administration and
intelligence officials provided conflicting accounts as to whether anyone at the
White House expressed support for the idea that the tapes should be destroyed.

One former senior intelligence official with direct knowledge of the matter said
there had been "vigorous sentiment" among some top White House officials to
destroy the tapes. The former official did not specify which White House
officials took this position, but he said that some believed in 2005 that any
disclosure of the tapes could have been particularly damaging after revelations
a year earlier of abuses at Abu Ghraib prison in Iraq.

Some other officials assert that no one at the White House advocated destroying
the tapes. Those officials acknowledged, however, that no White House lawyer
gave a direct order to preserve the tapes or advised that destroying them would
be illegal.

The destruction of the tapes is being investigated by the Justice Department,
and the officials would not agree to be quoted by name while that inquiry is
under way.

Spokesmen for the White House, the vice president's office and the CIA declined
to comment for this article, also citing the inquiry.

The new information came to light as a federal judge on Tuesday ordered a
hearing into whether the tapes' destruction violated an order to preserve
evidence in a lawsuit brought on behalf of 16 prisoners at Guantanamo Bay, Cuba.
The tapes documented harsh interrogation methods used in 2002 on Abu Zubaydah
and Abd al-Rahim al-Nashiri, two Qaeda suspects in CIA custody.

The current and former officials also provided new details about the role played
in November 2005 by Jose A. Rodriguez Jr., then the chief of the agency's
clandestine branch, who ultimately ordered the destruction of the tapes.

The officials said that before he issued a secret cable directing that the tapes
be destroyed, Mr. Rodriguez received legal guidance from two CIA lawyers, Steven
Hermes and Robert Eatinger. The officials said that those lawyers gave written
guidance to Mr. Rodriguez that he had the authority to destroy the tapes and
that the destruction would violate no laws.

The agency did not make either Mr. Hermes or Mr. Eatinger available for comment.

Current and former officials said the two lawyers informed the CIA's top lawyer,
John A. Rizzo, about the legal advice they had provided. But officials said Mr.
Rodriguez did not inform either Mr. Rizzo or Porter J. Goss, the CIA director,
before he sent the cable to destroy the tapes.

"There was an expectation on the part of those providing legal guidance that
additional bases would be touched," said one government official with knowledge
of the matter. "That didn't happen."

Robert S. Bennett, a lawyer for Mr. Rodriguez, insisted that his client had done
nothing wrong and suggested that Mr. Rodriguez had been authorized to order the
destruction of the tapes. "He had a green light to destroy them," Mr. Bennett
said.

Until their destruction, the tapes were stored in a safe in the CIA station in
the country where the interrogations took place, current and former officials
said. According to one former senior intelligence official, the tapes were never
sent back to CIA headquarters, despite what the official described as concern
about keeping such highly classified material overseas.

Top officials of the C.I.A's clandestine service had pressed repeatedly
beginning in 2003 for the tapes' destruction, out of concern that they could
leak and put operatives in both legal and physical jeopardy.

The only White House official previously reported to have taken part in the
discussions was Ms. Miers, who served as a deputy chief of staff to President
Bush until early 2005, when she took over as White House counsel. While one
official had said previously that Ms. Miers's involvement began in 2003, other
current and former officials said they did not believe she joined the
discussions until 2005.

Besides the Justice Department inquiry, the Congressional intelligence
committees have begun investigations into the destruction of the tapes, and are
looking into the role that officials at the White House and Justice Department
might have played in discussions about them. The CIA never provided the tapes to
federal prosecutors or to the Sept. 11 commission, and some lawmakers have
suggested that their destruction may have amounted to obstruction of justice.

Newsweek reported this week that John D. Negroponte, who was director of
national intelligence at the time the tapes were destroyed, sent a memorandum in
the summer of 2005 to Mr. Goss, the CIA director, advising him against
destroying the tapes. Mr. Negroponte left the job this year to become deputy
secretary of state, and a spokesman for the director of national intelligence
declined to comment on the Newsweek article.

The court hearing in the Guantanamo case, set for Friday in Washington by
District Judge Henry H. Kennedy Jr. over the government's objections, will be
the first public forum in which officials submit to questioning about the tapes'
destruction.

There is no publicly known connection between the 16 plaintiffs -- 14 Yemenis,
an Algerian and a Pakistani -- and the CIA videotapes. But lawyers in several
Guantanamo cases contend that the government may have used information from the
CIA interrogations to identify their clients as "unlawful combatants" and hold
them at Guantanamo for as long as six years.

"We hope to establish a procedure to review the government's handling of
evidence in our case," said David H. Remes, a lawyer representing the 16
detainees.

Jonathan Hafetz, who represents a Qatari prisoner at Guantanamo and filed a
motion on Tuesday seeking a separate hearing, said the videotapes could well be
relevant.

"If the government is relying on the statement of a witness under harsh
interrogation, a videotape of the interrogation would be very relevant," said
Mr. Hafetz, of the Brennan Center for Justice at New York University law school.

In addition to the Guantanamo court filings, the American Civil Liberties Union
has asked a federal judge to hold the CIA in contempt of court for destroying
the tapes. The A.C.L.U. says the destruction violated orders in a Freedom of
Information Act case brought by several advocacy groups seeking materials
related to detention and interrogation.

[ David Johnston contributed reporting. ]

*


Washington Post--

December 18, 2007

FBI, CIA DEBATE SIGNIFICANCE OF TERROR SUSPECT
Agencies Also Disagree On Interrogation Methods

By Dan Eggen and Walter Pincus

http://www.washingtonpost.com/wp-dyn/content/
article/2007/12/17/AR2007121702151.html

Al-Qaeda captive Abu Zubaida, whose interrogation videotapes were destroyed by
the CIA, remains the subject of a dispute between FBI and CIA officials over his
significance as a terrorism suspect and whether his most important revelations
came from traditional interrogations or from torture.

While CIA officials have described him as an important insider whose disclosures
under intense pressure saved lives, some FBI agents and analysts say he is
largely a loudmouthed and mentally troubled hotelier whose credibility dropped
as the CIA subjected him to a simulated drowning technique known as
waterboarding and to other "enhanced interrogation" measures.

The question of whether Abu Zubaida -- whose real name is Zayn al-Abidin
Muhammed Hussein -- was an unstable source who provided limited intelligence
under gentle questioning, or a hardened terrorist who cracked under extremely
harsh measures, goes to the heart of the current Washington debate over coercive
interrogations and torture.

The House has approved legislation that would require U.S. intelligence agencies
to follow Army rules adopted last year that explicitly forbid waterboarding and
other harsh measures, but it has stalled in the Senate under a veto threat by
President Bush.

A public assessment of Abu Zubaida's case has been complicated by the newly
revealed destruction of the videotaped record of his questioning, according to
congressional sources. Intelligence officials say no verbatim transcripts were
made, although classified daily summaries were prepared.

Bush has sided publicly with the CIA's version of events. "We knew that Zubaida
had more information that could save innocent lives, but he stopped talking,"
Bush said in September 2006. "And so the CIA used an alternative set of
procedures," which the president said prompted Abu Zubaida to disclose
information leading to the capture of Sept. 11, 2001, plotter Ramzi Binalshibh.

But former FBI officials privy to details of the case continue to dispute the
CIA's account of the effectiveness of the harsh measures, making the record of
Abu Zubaida's interrogation hard for outsiders to assess.

There is little dispute, according to officials from both agencies, that Abu
Zubaida provided some valuable intelligence before CIA interrogators began to
rough him up, including information that helped identify Khalid Sheik Mohammed,
the alleged mastermind of the Sept. 11 attacks, and al-Qaeda operative Jose
Padilla. Footnotes in the 9/11 Commission report attribute information about a
variety of al-Qaeda personnel and activities to interrogations of Abu Zubaida
beginning in April 2002 and lasting through February 2004.

Former CIA officer John Kiriakou -- who participated in Abu Zubaida's capture,
was present for the next three days and later saw classified reports of the
agency's harsh interrogations -- attracted attention last week when he said that
information obtained from Abu Zubaida under measures that Kiriakou now regards
as torture "probably saved lives."

Former CIA director George J. Tenet, in his book recounting his tenure at the
agency, also said claims that Abu Zubaida's importance was overstated were
"baloney." Tenet wrote: "Abu Zubaydah had been at the crossroads of many al-
Qaida operations and was in position to -- and did -- share critical information
with his interrogators."

But FBI officials, including agents who questioned him after his capture or
reviewed documents seized from his home, have concluded that even though he knew
some al-Qaeda players, he provided interrogators with increasingly dubious
information as the CIA's harsh treatment intensified in late 2002.

In legal papers prepared for a military hearing, Abu Zubaida himself has
asserted that he told his interrogators whatever they wanted to hear to make the
treatment stop.

Retired FBI agent Daniel Coleman, who led an examination of documents after Abu
Zubaida's capture in early 2002 and worked on the case, said the CIA's harsh
tactics cast doubt on the credibility of Abu Zubaida's information.

"I don't have confidence in anything he says, because once you go down that
road, everything you say is tainted," Coleman said, referring to the harsh
measures. "He was talking before they did that to him, but they didn't believe
him. The problem is they didn't realize he didn't know all that much."

Abu Zubaida's journey through the U.S. government's secret prison system began
on March 28, 2002, when U.S. and Pakistani authorities conducted a series of
night raids at 14 suspected terrorist safe houses aimed at capturing him. The
CIA designed the operation with Pakistan's intelligence service and special
forces police, and the FBI had agents at each location to take custody of any
physical evidence, officials said.

Documents, cellphones and computers were seized at multiple sites. After a
gunfight in a second-floor apartment in Faisalabad, Abu Zubaida was shot three
times while attempting to leap from the roof of one apartment to another. Still
unidentified, he was placed in the back of a pickup truck and taken to a local
hospital. An FBI agent in the truck was the first to suggest he might be Abu
Zubaida.

U.S. intelligence and law enforcement officials had long sought Abu Zubaida,
whom Ahmed Ressam -- a key organizer of the failed attempt to bomb the Los
Angeles airport in 1999 -- had named as a fellow plotter. The 9/11 Commission
described Abu Zubaida as a "longtime ally of bin Laden" who helped run the
Khalden terrorist training camp in Afghanistan before the Sept. 11 attacks.

Once Abu Zubaida's identity was confirmed, the CIA station chief ordered him to
be watched around the clock while U.S. officials made plans for intensive
questioning at a secret site elsewhere, several officials said. He was flown out
of Pakistan after three days.

In his book, "At the Center of the Storm: My Years in the CIA," Tenet wrote that
a trauma physician from Johns Hopkins Medical Center was flown to Pakistan to
help keep Abu Zubaida alive during his transfer to the new interrogation site.
"Not that we had any sympathy for Zubaydah; we just didn't want him dying before
we could learn what he might have to tell us about plans for future attacks,"
Tenet said.

Abu Zubaida's captors first spoke to him in Arabic, but he began responding only
when they addressed him in English, Kiriakou recalled. Abu Zubaida explained
that he would not talk to infidels in what he said was "God's language,"
Kiriakou said.

During his first month of captivity, Abu Zubaida described an al-Qaeda associate
whose physical description matched that of Padilla, leading to Padilla's arrest
at O'Hare International Airport in Chicago in May 2002. A former CIA officer
said in an interview that Abu Zubaida's "disclosure of Padilla was accidental."
The officer added that Abu Zubaida "was talking about minor things and provided
a small amount of information and a description of a person, just enough to
identify him because he had just visited the U.S. Embassy" in Pakistan.

Other officials, including Bush, have said that during those early weeks --
before the interrogation turned harsh -- Abu Zubaida confirmed that Mohammed's
role as the mastermind of the Sept. 11 attacks.

A rift nonetheless swiftly developed between FBI agents, who were largely
pleased with the progress of the questioning, and CIA officers, who felt Abu
Zubaida was holding out on them and providing disinformation. Tensions came to a
head after FBI agents witnessed the use of some harsh tactics on Abu Zubaida,
including keeping him naked in his cell, subjecting him to extreme cold and
bombarding him with loud rock music.

"They said, 'You've got to be kidding me,' " said Coleman, recalling accounts
from FBI employees who were there. " 'This guy's a Muslim. That's not going to
win his confidence. Are you trying to get information out of him or just
belittle him?' " Coleman helped lead the bureau's efforts against Osama bin
Laden for a decade, ending in 2004.

FBI Director Robert S. Mueller III eventually ordered the FBI team to withdraw
from the interrogation, largely because bureau procedures prohibit agents from
being involved in such techniques, according to several officials familiar with
the episode.

Whether harsh tactics were used on Abu Zubaida prior to official legal
authorization by the Justice Department is unclear. Officials at the CIA say all
its tactics were lawful. An Aug. 1 Justice document later known as the "torture
memo" narrowly defined what constituted illegal abuse. It was accompanied by
another memo that laid out a list of allowable tactics for the CIA, including
waterboarding, according to numerous officials.

According to Kiriakou's account, which he said is based on detailed descriptions
by fellow team members, Abu Zubaida broke after just 35 seconds of
waterboarding, which involved stretching cellophane over his mouth and nose and
pouring water on his face to create the sensation of drowning.

But other former and current officials disagreed that Abu Zubaida's cooperation
came quickly under harsh interrogation or that it was the result of a single
waterboarding session. Instead, these officials said, harsh tactics used on him
at a secret detention facility in Thailand went on for weeks or, depending on
the account, even months.

The videotaping of Abu Zubaida in 2002 went on day and night throughout his
interrogation, including waterboarding, and while he was sleeping in his cell,
intelligence officials said. "Several hundred hours" of videotapes were
destroyed in November 2005, a senior intelligence officer said. The CIA has said
it ceased waterboarding in 2003.

According to the 9/11 Commission, which had access to FBI and CIA summaries of
the interrogation, after August 2002 -- when the harsh questioning is said to
have begun -- Abu Zubaida identified Abd al-Rahim al-Nashiri as a productive
recruiter for al-Qaeda. Nashiri was subsequently captured and subjected to harsh
interrogation, including waterboarding, but videotapes of that questioning were
also destroyed by the CIA.

The commission also said Abu Zubaida provided further information in 2003 and
2004 about Mohammed's conversations with bin Laden and about Abu Turab, a key
trainer for the Sept. 11 hijackers.

Even under intense pressure, Abu Zubaida remained a wily adversary, according to
a former senior intelligence official familiar with the interrogation, who
explained that he seemed "very selective in what he protected and what he gave
up." Another former official said that when the measures turned harsh, Abu
Zubaida constructed a rationale for why he should cooperate. He decided that
"God will not try you beyond your ability to resist," as the former official put
it.

Coleman, a 31-year FBI veteran, joined other former law enforcement colleagues
in expressing skepticism about Abu Zubaida's importance. Abu Zubaida, he said in
an interview, was a "safehouse keeper" with mental problems who claimed to know
more about al-Qaeda and its inner workings than he really did.

Abu Zubaida's diary, which Coleman said he examined at length, was written in
three distinct personalities -- one younger, one older and one the same age as
Abu Zubaida. The book was full of flowery and philosophical meanderings, and
made little mention of terrorism or al-Qaeda, Coleman said.

Looking at other evidence, including a serious head injury that Abu Zubaida had
suffered years earlier, Coleman and others at the FBI believed that he had
severe mental problems that called his credibility into question. "They all knew
he was crazy, and they knew he was always on the damn phone," Coleman said,
referring to al-Qaeda operatives. "You think they're going to tell him
anything?"

Tenet disagreed, writing in his book that CIA psychiatrists concluded that Abu
Zubaida "was using a sophisticated literary device to express himself" in the
diary, which was "hundreds of pages" long.

Coleman said reports of Abu Zubaida's statements during his early, traditional
interrogation were "consistent with who he was and what he would possibly know."
He and other officials said that materials seized from Abu Zubaida's house and
other locations, including names, telephone numbers and computer laptops,
provided crucial information about al-Qaeda and its network.

But, Coleman and other law enforcement officials said, CIA officials concluded
to the contrary that Abu Zubaida was a major player, and they saw any lack of
information as evidence that he was resisting interrogation. Much of the threat
information provided by Abu Zubaida, Coleman said, "was crap."

"There's an agency mind-set that there was always some sort of golden apple out
there, but there just isn't, especially with guys like him," Coleman said.

[ Staff writer Joby Warrick and staff researcher Julie Tate contributed to this
report. ]

*


FindLaw --

December 14, 2007

THE INVESTIGATIONS OF THE DESTRUCTION OF CIA TORTURE TAPES:
HOW AN ACLU LAWSUIT MIGHT FORCE THE BUSH ADMINISTRATION
TO REVEAL WHAT ACTUALLY HAPPENED

By John W. Dean

http://writ.news.findlaw.com/dean/20071214.html

By my count, there appear to be no less than ten preliminary investigations
underway, following the revelation that the CIA destroyed at least two sets of
videotapes (containing hundreds of hours of footage) of "advanced interrogation"
techniques being employed in terrorism investigations. In fact, every branch of
government is now involved.

Within the Executive Branch, according to news reports, the CIA's General
Counsel and Inspector General are investigating. The Department of Justice is
investigating. On Capitol Hill, both the Senate and House Intelligence
Committees are investigating. In addition, the House Committee on Oversight and
Government Reform is inquiring as to whether the Federal Records Act has been
violated. And Senator Joseph Biden, chairman of the Senate Foreign Affairs
Committee, has made preliminary inquiries as well.

The Bush Administration has shown that it is not very good at investigating
itself, so no one should hold their breath for the outcome of either the CIA or
Justice Department investigation. And Attorney General Mukasey has dismissed an
independent special counsel inquiry as very premature. The Democratic-controlled
Congress could get to the bottom of all this, but one should bear in mind that
our elected representatives have yet to get to the bottom of the political
firing of U.S. Attorneys (although, to be fair, they did get former Attorney
General Gonzales to resign). Today, Congress suffers from a degenerative spinal
malady, and while they can bark, they appear unable to bite.

There are three court orders that may have been violated, but one in particular
strikes me as a very serious problem for the CIA. Accordingly, we may well be in
the unique situation in which a pending civil lawsuit might flush out some
answers, and the federal judiciary might thus embarrass the other branches into
actually taking meaningful action. I say "might" because the Bush Administration
thinks nothing of stiffing federal court judges who seek information, and they
probably figure they can tap-dance for the federal judiciary - along with all
the other inquiries -- until they are out of Washington on January 20, 2009.

Nevertheless, the situation in the United States District Court for the Southern
District of New York, as a result of Freedom of Information Act requests by the
American Civil Liberties Union, could well force the Bush Administration's hand.
An order holding the CIA in contempt of court might get the Administration's
attention.

THE ACLU'S LAWSUIT, AND THE ORDER THAT THE CIA PRODUCE DOCUMENTS

When word of mistreatment of detainees surfaced, the ACLU filed a Freedom of
Information Act request targeting the CIA and others on October 7, 2003 and May
25, 2004, seeking records concerning the treatment of all detainees apprehended
after September 11, 2001 and held in U.S. custody abroad. This, of course, would
mean not only in Guantanamo but in the secret prisons in Eastern Europe operated
by the CIA.

Not surprisingly, the government stiffed the request, so the ACLU filed a
lawsuit in June 2004 in the U.S. District Court for the Southern District of New
York. The case ended up in the courtroom of Judge Alvin K. Hellerstein. On
September 15, 2004, Judge Hellerstein ordered the CIA and other government
departments to "produce or identify" all responsive documents by October 15,
2004.

The CIA claimed that some of the relevant documents were the subject of an
inquiry by the CIA's Office of the Inspector General, so its attorneys requested
a stay of the judge's order and an extension of time to comply with the request
for other documents. In February 2005, Judge Hellerstein denied the CIA's
request for a stay, but he did not enforce the stay immediately when the CIA
moved for the judge to reconsider his ruling based on additional evidence from
the CIA's Director - as the CIA entered a full-court press to prevent the ACLU
from getting anything.

This stalling action had been playing out, when news of the destruction of the
tapes became public. Now, in the action before Judge Hellerstein, he ACLU has
moved to hold the CIA in contempt of court, based on the Judge's September 15,
2004 ruling. It is difficult to see why the CIA is, in fact, not in contempt,
given the nature of the FOIA request and the judge's order.

MOTION TO HOLD THE CIA IN CONTEMPT

On December 6, The New York Times reported that the CIA had destroyed two
videotapes of CIA detainees who were being subjected to "aggressive
interrogation techniques" - more commonly called torture. The Washington Post
soon reported that the destruction of the tapes had occurred in November 2005.
CIA Director Michael Hayden publicly acknowledged that destruction, and soon
confirmed this statement under oath in testimony to the House and Senate, saying
that the destruction had occurred before he became Director.

Passing over who did what and why to focus on the situation in Judge
Hellerstein's courtroom, on December 12, of this year the ACLU filed a motion to
hold the CIA in contempt of court. The ACLU makes a powerful case that the CIA
violated Judge Hellerstein's order of September 15, 2005 - issued before the
CIA's apparent destruction of the tapes.

The Court's Order required the CIA to "produce or identify all responsive
documents." Those not produced had to be identified. Classified documents were
to be "identified in camera [that is, only to the court] on a log produced to
the court." Recall, too, that the FOIA request sought information on the
handling of all but a few detainees, who were within the United States.

It is well- and long-established law that a court order of this nature requires
that the party preserve all information possessed that is responsive to the
request. Thus, the CIA was obligated to preserve the tapes even if they were
hell-bent on fighting in court to deny them to the ACLU. And as this litigation
proceeded, Judge Hellerstein's later orders only served to reinforce that
obligation, as a string of precedents makes clear.

WHAT IS NEXT?

In addition to holding the CIA in contempt for destroying tapes that were
subject to an FOIA request that surely reached these videos, the ACLU has also
requested that the CIA provide some public disclosure of the facts surrounding
the destruction of this material. In addition, the ACLU has requested permission
to take depositions of those involved, under oath, and has requested that the
court issue a further order barring the CIA from destroying, removing, or
tampering with other records that are the subject of the ACLU's FOIA request.
Finally, the ACLU is seeking costs for its expenses and such other relief as the
Court may deem appropriate.

How this is resolved depends on one factor: Judge Hellerstein. Doubtless, the
CIA will respond with papers proclaiming its innocence, and no doubt denying
that it was aware of the destruction. However, this is where the Judge himself -
if he does not give the ACLU discovery powers - may demand that the CIA tell him
what they have been up to, given his clear prior orders.

As I have written before, judges appointed by Republican presidents tend to
throw cases that might embarrass Republican presidents out of their court, as
quickly as they can figure out how to do so. Federal judges appointed by
Democratic presidents, fortunately, do not tend to cower when either Republican
or Democratic presidents are involved. A judge ends up with a case like this
through a random selection procedure; in this case, the CIA happened to draw a
Judge it cannot intimidate, which makes it interesting.

More on Judge Alvin K. Hellerstein, Who Issued the Videotapes Order

Judge Hellerstein was appointed to the federal bench by President Bill Clinton
in 1998. An editor of the Columbia Law Review during his law school years, he
started his legal career in the Judge Advocate General (JAG) Corps of the Army
in 1959-1960. An experienced litigator with a prestigious New York City law
firm, he is a highly-respected judge. He works hard, is fair, and is savvy.

He is also a nightmare for the CIA in a case like this, because on June 3, 2005
he ordered the release of four videos from Abu Ghraib, along with dozens of
photographs - not withstanding an effort of the government to suppress this
material from ever becoming public.

Judge Hellerstein appears to have no tolerance for torture. Unlike his former
colleague and now-Attorney General Michael Mukasey, who still is not clear that
waterboarding is torture, one does not have the sense that Judge Hellerstein
suffers from such confusion. While Judge Hellerstein is going to appropriately
protect the sources and methods of the CIA, if any judge is going to get to the
bottom of this destruction of these records quickly, this is the judge.

*


Boston Globe --

December 15, 2007

CONTROL SOUGHT ON MILITARY LAWYERS
Bush wants power over promotions

By Charlie Savage

http://www.boston.com/news/nation/washington/
articles/2007/12/15/control_sought_on_military_lawyers/

WASHINGTON - The Bush administration is pushing to take control of the
promotions of military lawyers, escalating a conflict over the independence of
uniformed attorneys who have repeatedly raised objections to the White House's
policies toward prisoners in the war on terrorism.

The administration has proposed a regulation requiring "coordination" with
politically appointed Pentagon lawyers before any member of the Judge Advocate
General corps - the military's 4,000-member uniformed legal force - can be
promoted.

A Pentagon spokeswoman did not respond to questions about the reasoning behind
the proposed regulations. But the requirement of coordination - which many
former JAGs say would give the administration veto power over any JAG promotion
or appointment - is consistent with past administration efforts to impose
greater control over the military lawyers.

The former JAG officers say the regulation would end the uniformed lawyers' role
as a check-and-balance on presidential power, because politically appointed
lawyers could block the promotion of JAGs who they believe would speak up if
they think a White House policy is illegal.

Retired Major General Thomas Romig, the Army's top JAG from 2001 to 2005, called
the proposal an attempt "to control the military JAGs" by sending a message that
if they want to be promoted, they should be "team players" who "bow to their
political masters on legal advice."

It "would certainly have a chilling effect on the JAGs' advice to commanders,"
Romig said. "The implication is clear: without [the administration's] approval
the officer will not be promoted."

The new JAG rule is part of a set of proposed changes to the military's
procedures for promoting all commissioned officers, a copy of which was obtained
by the Globe. The Pentagon began internally circulating a draft of the changes
for comments by the services in mid-November, and the administration will decide
whether to make the changes official later this month or early next year.

The JAG rule would give new leverage over the JAGs to the Pentagon's general
counsel, William "Jim" Haynes, who was appointed by President Bush. Haynes has
been the Pentagon's point man in the disputes with the JAGs who disagreed with
the administration's assertion that the president has the right to bypass the
Geneva Conventions and other legal protections for wartime detainees.

A Pentagon spokeswoman said that Haynes was traveling and unavailable for an
interview, and she did not respond to other written questions submitted by the
Globe. In the past, Haynes has made several proposals that would bring the JAGs
under greater control by political appointees.

As part of the uniformed chain of command, the JAGs are not directly controlled
by civilian political appointees. But Haynes has long promoted the idea of
making each service's politically appointed general counsel the direct boss of
the service's top JAG, a change Haynes has said would support the principle of
civilian control of the military.

One of Haynes' allies on the Bush administration legal team, former Justice
Department lawyer John Yoo, recently coauthored a law review article sharply
critical of the JAGs' unwillingness to endorse the legality of the
administration's treatment of wartime detainees.

Yoo, who wrote a series of controversial legal opinions about the president's
power to bypass the Geneva Conventions and antitorture laws before leaving
government in 2003, called for some kind of "corrective measures" that would
"punish" JAGs who undermine the president's policy preferences.

Yoo's law review article did not specifically discuss injecting political
appointees into the JAG promotions process, and Yoo said in an e-mail that he
did not know anything about the new Pentagon proposal. But several retired JAGs
said they think the proposed change is an attempt by the Bush administration to
turn Yoo's idea into a reality.

Under the current system, boards of military officers pick who will join the JAG
corps and who will be promoted, while the general counsels' role is limited to
reviewing whether the boards followed correct procedures. The proposed rule
would impose a new requirement of "coordination" with the general counsels of
the services and the Pentagon during the JAG appointment and promotion process.

The proposal does not spell out what coordination means. But both JAGs and
outside legal specialists say that it is common bureaucratic parlance for
requiring both sides to sign off before a decision gets made - meaning that
political appointees would have the power to block any candidate's career path.

"It only makes sense to put this in if you want [general counsels to exercise
the power to give] thumbs up or thumbs down, in order to intimidate JAGs," said
retired Colonel Gordon Wilder, who was the Air Force's top JAG specialist in
administrative law until last January.

Stephen Saltzburg, a George Washington University law professor who is also
general counsel to the National Institute of Military Justice, agreed that the
regulation boils down to giving political appointees the power to veto JAG
promotions.

"The message would be clear to every JAG, which is that when you have been told
that the general counsel has a view on the law, any time you dare disagree with
it, don't expect a promotion," Saltzburg said, adding "I don't think that would
be in the best interest of the country. We've seen how important it can be to
have the JAGs give their honest opinions when you look at the debates on
interrogation techniques and the like."

Key members of the Bush administration legal team have pushed to subject the
JAGs to greater political control for years.

In the early 1990s, both Haynes and Vice President Cheney's top aide, David
Addington, were politically appointed lawyers in the Pentagon during the Bush-
Quayle administration. On their advice, Cheney, who was then the defense
secretary, proposed making each service's general counsel the boss of his JAG
counterpart, but the Senate Armed Services Committee forced the administration
to back down.

In 2001, Haynes and Addington were restored to power in the Bush-Cheney
administration, and the conflict over JAG independence resumed amid the fights
over such war on terrorism policies as harsh interrogations.

Responding to the conflicts, in 2004 Congress enacted a law forbidding Defense
Department employees from interfering with the ability of JAGs to "give
independent legal advice" directly to military leaders. But when President Bush
signed the law, he issued a signing statement decreeing that the legal opinions
of his political appointees would still "bind" the JAGs.

And throughout the past several years, the administration has repeatedly
proposed changes that would impose greater control over the JAGs, such as
letting political appointees decide who should be the top service JAGs. Each
previous proposal has died amid controversy in the Pentagon or Congress.

The new proposal goes further than anything the administration has pushed before
because it would affect all military lawyers, not just the top JAGs. Retired
Rear Admiral Donald Guter, the Navy's top JAG from 2000 to 2002, said the rule
would "politicize" the JAG corps all the way "down into the bowels" of its
lowest ranks.

"That would be the end of the professional [JAG] corps as we know it," Guter
said.

*


Washington Post --

December 12, 2007

HAYDEN TELLS PANEL HE CAN'T ANSWER EVERY QUESTION ABOUT TAPES

by Dan Eggen and Walter Pincus

http://www.washingtonpost.com/wp-dyn/content/
article/2007/12/11/AR2007121102108.html

CIA Director Michael V. Hayden told the Senate intelligence committee in a
closed hearing yesterday that he was unable to answer key questions about the
destruction of interrogation videotapes because the decisions were made before
he worked at the CIA.

Hayden told reporters after the hearing that he had "a chance to lay out the
narrative, the history of why the tapes were destroyed."

But because the tapes were made in 2002 under then-CIA Director George J. Tenet
and were destroyed in 2005 under another director, former representative Porter
J. Goss (R-Fla.), Hayden said he is unable to answer all the panel's questions.

"Other people in the agency know about this far better than I," Hayden said.

Sen. John D. Rockefeller IV (D-W.Va.), the intelligence panel's chairman, told
reporters that the hearing was "useful and not yet complete" because of Hayden's
inability to supply crucial information, including who authorized the
destruction of videotapes and why lawmakers were not told about it sooner, or at
all.

Hayden's appearance before the intelligence panel followed his disclosure last
week that the CIA had destroyed recordings of the interrogations of suspected
al-Qaeda operative Zayn Abidin Muhammed Hussein, commonly known as Abu Zubaida,
and another senior captive, identified by intelligence officials as Abd al-Rahim
al-Nashiri. Hayden said the destruction was necessary to protect the identities
of CIA personnel who appear on the tapes, but many lawmakers and defense
attorneys have alleged it was an attempt to cover up illegal torture.

One former senior intelligence official said yesterday that the recordings were
contained on older-style videocassettes, rather than modern digital tapes or
discs, and that no verbatim transcripts were made. Instead, results of the
interrogations were contained in classified summaries, the official said.

Hayden's appearance followed disclosures by a former CIA officer, John Kiriakou,
who said that the use of a simulated drowning technique known as waterboarding
on Zubaida elicited information that "probably saved lives" but also amounts to
torture.

Kiriakou's public remarks prompted Hayden to send a reminder to CIA employees
yesterday about the importance of not disclosing classified information,
intelligence officials said.

The Justice Department and the CIA inspector general have launched a joint
inquiry into whether CIA officials obstructed justice or tampered with evidence
by destroying the videotapes after federal courts had ordered the government to
preserve materials related to interrogations and when the Sept. 11 commission
was seeking information. The House and Senate intelligence committees have
announced their own investigations of the tape destruction. Hayden is scheduled
to participate in a closed-door hearing before the House panel today.

Attorney General Michael B. Mukasey declined to comment yesterday on the ongoing
Justice probe or whether a special prosecutor should be appointed in the case,
as was suggested by Senate Majority Leader Harry M. Reid (D-Nev.) and others.

"I think the Justice Department is capable of doing whatever it appears needs to
be done," Mukasey said. "The question of a special prosecutor is the most
hypothetical of hypotheticals, and that isn't going to be faced until it
happens. And if it has to be, it will be."

Mukasey, whose confirmation was nearly undone after he refused to say whether
waterboarding is torture, said he is still studying the legal issues.

In a floor speech, Reid said the tape destruction had hurt the country's "moral
authority" and said that the "the possibility of obstruction of justice is very
real."

Intelligence officials have said that the destruction was ordered in November
2005 by Jose A. Rodriguez Jr., then the CIA's director of clandestine
operations, and that CIA lawyers approved the decision. Administration officials
have said that Justice Department and White House lawyers, including longtime
Bush aide Harriet E. Miers, had recommended against destroying the tapes.

President Bush, echoing previous remarks by his aides, said yesterday that he
did not know about the tapes or their destruction until last week. "My first
recollection of whether the tapes existed or whether they were destroyed was
when Michael Hayden briefed me," Bush said in an interview yesterday with ABC
News.

Hayden firmly defended the decision to destroy the tapes in a written message to
CIA employees last week, saying that the tapes posed a "serious security risk"
and were no longer relevant to any legislative or judicial inquiries.

One administration official said yesterday that Hayden is in a difficult
position because "he wasn't at the CIA when the tapes were made, and he wasn't
there when they were destroyed; he just gets to clean it up." But the official
said that Hayden "thinks it would be less than honorable to throw other people
from the CIA, including any predecessors, under a bus."

The disclosure of the destroyed tapes also has led plaintiffs' lawyers and
defense attorneys to step up their demands for preservation orders covering
interrogation records.

In one case yesterday, the U.S. Circuit Court of Appeals for the District of
Columbia ordered the government not to destroy evidence related to the case of
Majid Khan, a detainee who was in secret CIA custody for three years and is now
at the military prison at Guantanamo Bay, Cuba. Khan's attorneys alleged in a
court filing two weeks ago that he was tortured and that they feared evidence of
his treatment could be destroyed.

[ Staff writers Joby Warrick and Josh White and staff researcher Julie Tate
contributed to this report. ]

*


NBC News / Lexis --

December 11, 2007

CIA UNDER FIRE FOR ALLEGED TORTURE AND
DESTRUCTION OF VIDEOTAPES SHOWING TORTURE

SHOW: Today 7:00 AM EST NBC

Reporting by Andrea Mitchell

Matt Lauer interview with former CIA agent John Kiriakou

http://www6.lexisnexis.com/publisher/EndUser?Action=UserDisplayFullDocument
&orgId=574&topicId=100007221&docId=l:714446036&start=10

MATT LAUER, co-host:

Now to the CIA under fire today. Did it try to cover up the harsh tactics used
to get al-Qaeda suspects to talk? NBC's chief foreign affairs correspondent
Andrea Mitchell has more on that.

Andrea, good morning to you.

ANDREA MITCHELL, reporting: Good morning, Matt. Congress will start grilling the
CIA today about why it destroyed hours, hundreds of hours, in fact, of
videotapes of interrogations and whether the agency was trying to obstruct
justice. Behind closed doors today, CIA Director General Michael Hayden will
have to explain to the Senate Intelligence Committee why hundreds of hours of
tapes were destroyed before he took office. The most infamous of the al-Qaeda
leaders videotaped was Abu Zubaydah, subjected to waterboarding, simulated
drowning, after his arrest in Pakistan in March 2002. The CIA now admits it
destroyed those tapes in 2005. Officials tell NBC News partly out of concern
that the interrogators could be prosecuted.

Now a former CIA officer, John Kiriakou, involved in capturing Abu Zubaydah,
says he knew about the waterboarding, now views it as torture, but necessary to
prevent more terror attacks. Other experts disagree.

Mr. ROGER CRESSEY (NBC News Terrorism Analyst): Waterboarding will guarantee a
confession. That does not mean it guarantees the truth. So if you look at these
techniques, you have to look at them with an eye towards what is the result.

MITCHELL: Accused of bombing the USS Cole in Yemen, a second al-Qaeda operative,
Abdul al-Nashiri, was also arrested and interrogated on tape in 2002. Those
tapes [were] also destroyed.

Former intelligence officials tell NBC News of the four congressional leaders
briefed at the time about the waterboarding, only one, Democratic Congresswoman
Jane Harman, objected. She also later warned the CIA in writing against
destroying the tapes. But she had to take an oath never to reveal what she'd
been told until the CIA did.

Representative JANE HARMAN (Former House Intelligence Committee Member): All I'm
convinced about is that the CIA has made a big mistake and that there are a lot
of facts Congress needs to learn.

MITCHELL: Condoleezza Rice, national security adviser when the waterboarding
took place, now says she didn't know about the decision to destroy the tapes
three years later.

Secretary of State CONDOLEEZZA RICE: I was secretary of state in 2005, indeed,
and I can tell you that I myself don't recollect any knowledge of tapes.

MITCHELL: A high-ranking CIA official, former head of the clandestine service,
Jose Rodriguez, ordered the tapes to be destroyed with written approval from
agency lawyers even though they had been warned by the White House, by Congress
and the Justice Department years earlier to preserve the tapes. Well, now the
Justice Department has opened a preliminary investigation creating a major legal
and credibility problem for the nation's intelligence services. Matt:

LAUER: All right, Andrea, thank you.

The former CIA agent you just saw in Andrea's piece, John Kiriakou, led the team
that captured al-Qaeda leader Abu Zubaydah. Now he calls the waterboarding that
was used on Zubaydah torture.

Mr. Kiriakou, good morning. Nice to see you.

Mr. JOHN KIRIAKOU (Former CIA Agent Who Defends Use of Torture): Thanks for
having me.

LAUER: Let's compare and contrast. When Zubaydah was arrested in Pakistan and
you were the first person to question him back in 2002, what was his level of
cooperation? What information did he give you?

Mr. KIRIAKOU: He was in terrible physical condition when we first captured him.
He had been shot in the operation to capture him and he was in a coma for much
of the first several days. He finally came out of it and at first was just
speaking nonsensically. He wanted a glass of red wine, for example. Then he
asked me if I would smother him with a pillow. But once he really came out of it
and began talking, he expressed regret for the attacks and things like that.

LAUER: Fast-forward and Zubaydah is sent to one of these secret locations
somewhere. You will not disclose that, and I understand why. And he was
questioned using these so-called enhanced interrogation techniques.

Mr. KIRIAKOU: Correct.

LAUER: Were you actively involved in the decision to use those techniques?

Mr. KIRIAKOU: I was not.

LAUER: Where was the permission given in your opinion? The highest levels of the
CIA? Was the White House involved in that decision?

Mr. KIRIAKOU: Absolutely. This isn't something that's done willy-nilly. It's not
something that an agency officer just wakes up in the morning and decides he's
going to carry out an enhanced technique on a prisoner. This was a policy
decision that was made at the White House with concurrence from the National
Security Council and the Justice Department.

LAUER: Was it blanket permission for this particular prisoner? In other words,
use it no matter what, or did there have to be permission before each
interrogation?

Mr. KIRIAKOU: Before each interrogation, but more than that, before each
technique was used. For example, if you want to waterboard someone, you have to
come in with a cable, with a well-laid-out, well-thought-out reason for wanting
to do something like this.

LAUER: All right, so waterboarding, the guy's laid on his back, a cloth over his
face, water is poured on that cloth. It simulates the feeling of drowning? Fair
description?

Mr. KIRIAKOU: It does.

LAUER: In your opinion, torture or not torture?

Mr. KIRIAKOU: I think, yes, torture. I'm not saying that it wasn't necessary at
the time, and I'll let the lawyers decide if it's legal or not, but at the time
I think it was necessary to disrupt terrorist attacks.

LAUER: But it was torture in your opinion?

Mr. KIRIAKOU: I believe it was.

LAUER: Let me play you something that President Bush said to me about a year and
a half ago on this very subject in the Oval Office.

Mr. KIRIAKOU: Mm-hmm.

President GEORGE W. BUSH: (September 2006) Matt, I'm not going to talk about
techniques, and I'm not going to explain to the enemy what we're doing. All I'm
telling you is that you've asked me whether or not we're doing things to protect
the American people and I want the American people to know we are doing so. I
told our people, `Get information without torture,' and was assured by our
Justice Department that we were not torturing.

LAUER: You disagree?

Mr. KIRIAKOU: I disagree. I know that there was a high-level policy debate on
whether or not this was torture and that the Department of Justice and the White
House counsel and the National Security Council decided that it was not at the
time.

LAUER: The criticism is this, John, that under no circumstances should we cross
the line in this country and resort to torture. Yours is somewhat of a nuanced
opinion on that.

Mr. KIRIAKOU: It is. And it's something that a lot of us at the agency struggled
with as these decisions were being made and implemented. We wanted to do
anything we could to disrupt future terror attacks, especially on American soil,
but at the same time, you have to sleep with yourself at night.

LAUER: And yet I understand that today you would not agree--you would not agree
that it's proper.

Mr. KIRIAKOU: Correct.

LAUER: However, so if we were to get another top-level al-Qaeda operative and
learn that an attack might be imminent, you would say today we shouldn't use
this?

Mr. KIRIAKOU: Well, we've had six years since September 11th to develop sources
of information inside al-Qaeda. We've had six years to work our relationships
with foreign governments and foreign intelligence services to help them work
their sources in al-Qaeda.

LAUER: But if you've got that guy in front of you who has the valuable
information on a potential threat coming, an attack coming, you can't be half
pregnant.

Mr. KIRIAKOU: No, you can't be. But I think that enough time has passed and
we've been able to make enough inroads into some of these groups that we don't
need enhanced techniques to really get that nugget of information.

LAUER: Finally, do you see any reason--can you think of any reason why the CIA
would have destroyed the tapes of those interrogations other than to destroy
valuable and incriminating evidence in a possible torture investigation?

Mr. KIRIAKOU: I want to believe that somebody just wasn't thinking and they went
ahead and did it without thought for...

LAUER: You've had 14 years in the CIA.

Mr. KIRIAKOU: I know. I know.

LAUER: That's somewhat naive.

Mr. KIRIAKOU: It is, it is. And I want to think the best, but I think it was
just a terrible mistake, at the very least for the historical record.

LAUER: And it destroyed evidence.

Mr. KIRIAKOU: I think it did.

LAUER: John Kiriakou. Mr. Kiriakou, thanks for your time this morning.

Mr. KIRIAKOU: Thanks for having me.

*


Washington Post --

December 10, 2007

Libby Files Motion to Dismiss Appeal

By Debbi Wilgoren

http://www.washingtonpost.com/wp-
dyn/content/article/2007/12/10/AR2007121000719.html?hpid=topnews

Former vice presidential chief of staff I. Lewis "Scooter" Libby this morning
gave up the appeal of his perjury and obstruction convictions in connection with
the CIA leak case, his attorney said.

Libby, whose 30-month prison sentence was commuted by President Bush just before
he was to begin serving it, continues to maintain his innocence, attorney
Theodore V. Wells Jr. said in a statement. But, Wells said, "the burden on Mr.
Libby and his young family of continuing to pursue his complete vindication are
too great to ask them to bear."

As a result, Wells said, Libby filed a motion in U.S. District Court in
Washington today to dismiss the appeal.

A federal jury convicted Libby in March of four felonies for lying to FBI agents
and the grand jury that investigated the leak of the identity of then-covert CIA
operative Valerie Plame. Libby was found guilty of two perjury counts and one
count each of obstructing justice and making false statements -- about when and
how he learned Plame's identity, and what he told journalists about her.

Libby has already paid the $250,000 fine levied upon him, Wells said. He will
remain on supervised release for a total of two years and must complete 400
hours of community service as part of his criminal sentence.

Bush has never ruled out a full pardon of Libby, who was the only person charged
in connection with the leak case. Unless such a pardon is issued, Libby will
remain a convicted felon.

Although the investigation of the leak was launched with the intent of finding
out who revealed Plame's identity and whether that person did so knowing that
Plame was a covert operative, no one was ever charged with that crime. Plame and
her husband, former ambassador Joseph Wilson, allege that the leak was political
retaliation for Wilson's criticism of President Bush's policies on Iraq.


The case continues to be a political flashpoint up and down Pennsylvania Avenue.
House Oversight Committee Chairman Henry A. Waxman (D-Calif.) last week asked
new Attorney General Michael B. Mukasy to overrule the White House and release
transcripts of interviews of Bush, Cheney and other senior officials conducted
as part of an internal probe into the leak.

In the court case, Wells noted today that a successful appeal would likely only
lead to the case being retried, adding to the already enormous time and cost
Libby has spent defending himself.

The process "would last even beyond the two years of supervised release, cost
millions of dollars more than the fine he has already paid, and entail many more
hundreds of hours preparing for an all-consuming appeal and retrial," Wells
said.

*


Los Angeles Times --

December 10, 2007

AWOL MILITARY JUSTICE
Why the former chief prosecutor for the OMC resigned his post.

by Morris D. Davis

http://www.latimes.com/news/printedition/opinion/
la-oe-davis10dec10,0,567108.story

I was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba,
until Oct. 4, the day I concluded that full, fair and open trials were not
possible under the current system. I resigned on that day because I felt that
the system had become deeply politicized and that I could no longer do my job
effectively or responsibly.

In my view -- and I think most lawyers would agree -- it is absolutely critical
to the legitimacy of the military commissions that they be conducted in an
atmosphere of honesty and impartiality. Yet the political appointee known as the
"convening authority" -- a title with no counterpart in civilian courts -- was
not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective -- not
predisposed for the prosecution or defense -- and gets to make important
decisions at various stages in the process. The convening authority decides
which charges filed by the prosecution go to trial and which are dismissed,
chooses who serves on the jury, decides whether to approve requests for experts
and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to
replace Maj. Gen. John Altenburg as the convening authority. Altenburg's staff
had kept its distance from the prosecution to preserve its impartiality.
Crawford, on the other hand, had her staff assessing evidence before the filing
of charges, directing the prosecution's pretrial preparation of cases (which
began while I was on medical leave), drafting charges against those who were
accused and assigning prosecutors to cases, among other things.

How can you direct someone to do something -- use specific evidence to bring
specific charges against a specific person at a specific time, for instance --
and later make an impartial assessment of whether they behaved properly?
Intermingling convening authority and prosecutor roles perpetuates the
perception of a rigged process stacked against the accused.

The second reason I resigned is that I believe even the most perfect trial in
history will be viewed with skepticism if it is conducted behind closed doors.
Telling the world, "Trust me, you would have been impressed if only you could
have seen what we did in the courtroom" will not bolster our standing as
defenders of justice. Getting evidence through the classification review process
to allow its use in open hearings is time-consuming, but it is time well spent.

Crawford, however, thought it unnecessary to wait because the rules permit
closed proceedings. There is no doubt that some portions of some trials have to
be closed to protect classified information, but that should be the last option
after exhausting all reasonable alternatives. Transparency is critical.

Finally, I resigned because of two memos signed by Deputy Secretary of Defense
Gordon England that placed the chief prosecutor -- that was me -- in a chain of
command under Defense Department General Counsel William J. Haynes. Haynes was a
controversial nominee for a lifetime appointment to the U.S. 4th Circuit Court
of Appeals, but his nomination died in January 2007, in part because of his role
in authorizing the use of the aggressive interrogation techniques some call
torture.

I had instructed the prosecutors in September 2005 that we would not offer any
evidence derived by waterboarding, one of the aggressive interrogation
techniques the administration has sanctioned. Haynes and I have different
perspectives and support different agendas, and the decision to give him command
over the chief prosecutor's office, in my view, cast a shadow over the integrity
of military commissions. I resigned a few hours after I was informed of Haynes'
place in my chain of command.

The Military Commissions Act provides a foundation for fair trials, but some
changes are clearly necessary. I was confident in full, fair and open trials
when Gen. Altenburg was the convening authority and Brig. Gen. Tom Hemingway was
his legal advisor. Collectively, they spent nearly 65 years in active duty, and
they were committed to ensuring the integrity of military law. They acted on
principle rather than politics.

The first step, if these truly are military commissions and not merely a
political smoke screen, is to take control out of the hands of political
appointees like Haynes and Crawford and give it back to the military.

The president first authorized military commissions in November 2001, more than
six years ago, and the lack of progress is obvious. Only one war-crime case has
been completed. It is time for the political appointees who created this
quagmire to let go.

Sens. John McCain and Lindsey Graham have said that how we treat the enemy says
more about us than it does about him. If we want these military commissions to
say anything good about us, it's time to take the politics out of military
commissions, give the military control over the process and make the proceedings
open and transparent.

[ Morris D. Davis is the former chief prosecutor for the Office of Military
Commissions. The opinions expressed are his own and do not represent the views
of the Department of Defense or the Department of the Air Force. ]

*

The Independent (UK) --

December 10, 2007

CIA PHOTOS 'SHOW UK GUANTANAMO DETAINEE WAS TORTURED'

By Robert Verkaik

http://news.independent.co.uk/world/americas/article3239372.ece

Lawyers for a British resident who the US government refuses to release from
Guantanamo Bay have identified the existence of photographs taken by CIA agents
that they say show their client suffered horrific injuries under torture.

The photographic evidence will be vital to clear Binyam Mohammed, 27, who the
Americans want to bring before a Military Commission on charges of terrorism,
say his lawyers.

Last week it emerged that Britain had negotiated the release of four detainees
who have British residence status but Mr Mohammed, who speaks with a London
accent, and at least three others are being held back.

In a letter sent to the Foreign Secretary David Miliband, Britain is urged to
ask the US to stop the CIA destroying the pictures.

Clive Stafford-Smith, the legal director of Reprieve representing Mr Mohammed,
said that he also knows the identity of the agents who were present when his
client was allegedly beaten and tortured. Writing to Mr Miliband, he said:
"Given the opportunity, we can prove that the evidence was the fruit of torture.
Indeed, we can prove that a photographic record was made of this by the CIA.
Through diligent investigation we know when the CIA took pictures of Mr
Mohammed's brutalised genitalia, we know the identity of the CIA agents who were
present including the person who took the pictures (we know both their false
identities and their true names), and we know what those pictures show."

He added: "I have been privy to materials that allegedly support the finding
that Mr Mohammed should be held, and while I cannot discuss some here (due to
classification rules), I can state unequivocally that I have seen no evidence of
any kind against Mr Mohammed that is not the bitter fruit of torture."

Reprieve says it will be pressing for criminal prosecutions against the CIA
agents alleged to have carried out the torture.

Last week it emerged that the CIA destroyed hundreds of hours of videotapes
showing the torture of detainees held by the US.

Binyam Mohammed was born in Ethiopia but was given leave to remain in the UK
after seeking asylum in 1994. Seven years later, he travelled to Pakistan and
Afghanistan where the Americans allege that he underwent training in firearms
and explosives. In 2002, he was arrested by Pakistani immigration officials at
Karachi airport on his way back to the UK. He says he was then taken to Morocco
and tortured for 18 months, including having his penis slashed, before being
sent to Guantanamo, where he still remains.

Mr Stafford-Smith added in his letter: "As you know, the only purported basis
for the US holding Mr Mohammed is an allegation that he is an ('illegal') enemy
combatant. Five-and-a-half years after his initial seizure, he is not currently
charged in a military commission, and he has never been offered a fair trial. As
you are aware, Mr Mohammed was rendered to Morocco by the CIA and tortured for
18 months in a way that was medieval.

"There can be no rational dispute that this is true. We have the CIA flight
records which precisely match Mr Mohammed's version of events. He has nothing to
do with Morocco, and he was not taken there by the CIA for a Club Med vacation."

*

From Wikipedia...

* James L. Pavitt (born February 19, 1946) was Deputy Director for Operations
(DDO) for the CIA from 1999 until June 4, 2004.

* Stephen R. Kappes (born August 22, 1951) is a senior U.S. government
intelligence officer. He is currently Deputy Director of the Central
Intelligence Agency (DDCIA), having assumed this position on July 24, 2006. He
succeeded Vice Admiral Albert M. Calland, III.

Kappes was named Deputy Director for Operations (DDO) for the CIA in June 2004
and took office in August 2004 while the appointment of Porter Goss as the next
Director of Central Intelligence was still pending in the Senate. Kappes
succeeded James Pavitt, who resigned in June 2004. Both Kappes and Pavitt
oversaw the CIA's Directorate for Operations during the controversial Iraq WMD
reporting. He served in that position until he resigned in November 2004. John
E. McLaughlin, the then-Deputy Director of Central Intelligence, announced his
departure the same week Kappes quit, thus exacerbating the rumored management
problems for Goss.

* Jose A. Rodriguez, Jr. was the Director of the National Clandestine Service
(D/NCS) of the United States Central Intelligence Agency. He was the last to
serve as the Agency's Deputy Director for Operations (DDO) before that position
was upgraded to D/NCS in December 2004. News reports allege that Rodriguez
authorized the destruction of CIA videotapes of prisoners being interrogated in
ways that critics allege amount to torture.

On November 16, 2004, Rodriguez succeeded Stephen Kappes to become the Deputy
Director for Operations. Rodriguez continues in his capacity as the head of CIA
clandestine operations, now as Director of the National Clandestine Service. In
this expanded role, Rodriguez is the chief of all human intelligence gathering
(HUMINT) conducted by the U.S. government, including outside agencies. On
February 7, 2006, Rodriguez fired Robert Grenier, his successor as Director of
the CIA Counterterrorism Center, for not being "aggressive" enough in combating
terrorism.

On August 8, 2007, the Associated Press reported on Jose Rodriguez's upcoming
retirement. The article mentions his Wikipedia entry having been made prior to
the "decloaking" of his identity and that the entry contains "inaccuracies." He
will retire on September 30, 2007 and will be replaced by Michael Sulick.

* Michael J. Sulick (born 1948) was named head of the U.S. National Clandestine
Service on September 14, 2007 to replace Jose Rodriguez.

*


Harper's --

December 8, 2007

THE SCAPEGOAT

by Scott Horton

http://harpers.org/archive/2007/12/hbc-90001877

Leviticus chapter 16 describes a practice among the ancient Jews in which, in
connection with the observation of the Day of Atonement, Yom Kippur, a goat is
driven off. In the English words of the King James Bible, verse 22 reads:

      And the Goat shall bear upon him all their iniquities unto a Land not
      inhabited; and he shall let go the Goat into the Wilderness.

The Hebrew word is azazel and a century earlier William Tyndale had rendered
this as "scapegoat" in his Bible translation. But indeed in the world there are
few societies that do not know the practice, ritual or otherwise, of
scapegoating. It reflects a loading of sins or failings upon one person who is
sacrificed up in atonement for the wrongdoings of others. In the political
context, of course, it's rarely the case that the scapegoat is utterly
blameless. The practice usually entails identifying a junior person upon whom
the sins of failings of more senior persons can be loaded, to enable them to
avoid a demand for public accountability.

As the story concerning the CIA's decision to destroy vital evidence of its
program of detainee abuse unfolds, the Bush Administration's posture on the
matter is shifting decisively. This is called "damage control." The
Administration's initial posture was to have CIA Director Hayden put the best
face on the situation and argue that everything that was done was perfectly
legal and correct.

So now we come to phase two: the fall-back position. In phase two, we learn that
the president and other senior figures in the Administration know nothing about
it. Instead, this was all a rogue operation by a second tier leadership figure
at the CIA. And indeed, by midday yesterday, White House off-the-record
explainers were extremely busy pointing fingers at one man, the designated
scapegoat. The New York Times has the story:

      White House and Justice Department officials, along with senior members of
      Congress, advised the Central Intelligence Agency in 2003 against a plan
      to destroy hundreds of hours of videotapes showing the interrogations of
      two operatives of Al Qaeda, government officials said Friday. The chief of
      the agency's clandestine service nevertheless ordered their destruction in
      November 2005, taking the step without notifying even the CIA's own top
      lawyer, John A. Rizzo, who was angry at the decision, the officials
      said...

      Top CIA officials had decided in 2003 to preserve the tapes in response
      to warnings from White House lawyers and lawmakers that destroying the
      tapes would be unwise, in part because it could carry legal risks, the
      government officials said.

      But the government officials said that Jose A. Rodriguez Jr., then the
      chief of the agency's clandestine service, the Directorate of Operations,
      had reversed that decision in November 2005, at a time when Congress and
      the courts were inquiring deeply into the CIA's interrogation and
      detention program. Mr. Rodriguez could not be reached Friday for comment.

So the sacrificial beast now has a name: it is Jose A. Rodriguez Jr., the head
of the CIA's Directorate of Operations. The Bush Administration has always been
a government with a completely unpredictable past. But note how crudely this
historical transformation is being spun.

Yesterday we are told, in highly implausible statements coming from General
Hayden, that the CIA had acted completely according to Hoyle. The issue had been
considered, reviewed and cleared. Twenty-four hours later, there is a radical
shift of course. Now we learn that the White House didn't know about the
decision and certainly wouldn't have approved it. Here's Donna Perino at the
White House giving the new line, torn from an episode of "Hogan's Heroes": Bush
knew nothing.

And the official posture -- "knew nothing about it" -- spreads very quickly,
down as far as people can plausibly assert it. Even CIA acting General Counsel
Joe Rizzo (a known torture-advocate, whose nomination to be general counsel got
a thumbs down from the Senate for that reason) asserts he knew nothing of the
decision and would never have approved. Only yesterday, Rizzo's approval was
being touted as support for the destruction. Rizzo is a figure of amazing
dexterity, even for a Bush Administration lawyer involved with the torture
program.

What a difference a day makes. Why the dramatic shift? There are several
reasons:

· CRIMINALITY. As we noted immediately in reporting the case, the destruction of
the tapes was a clear-cut criminal act, namely obstruction of justice. I'm
confident that any lawyer who properly earned a law license and who was asked
about this issued an immediate warning siren. Indeed, as facts developed
yesterday, the proximity of the decision to destroy the tapes and the demands of
U.S. District Court Judge Leonie Brinkema that any tapes be turned over grew
painfully apparent to everyone. My sources are telling me that the actual
destruction occurred in mid- to late-November 2005. This would be after Judge
Brinkema pressed the Justice Department in court over its compliance with
production requests from the defense. High on the list of open questions was
whether the Justice Department had turned over tapes of the interrogation
sessions, which had been specifically requested. Brinkema issued an order
requiring this. It's a reasonable inference that the decision to destroy was
taken in direct reaction to Judge Brinkema's direction that the tapes be handed
over. Hence it was an act of calculated defiance of a federal court order. This
is a serious crime with respect to which a defense is hard to envision. And
every actor who was complicit in the decision would face potential jail time.

· SPOLIATION. Closely related, of course, is the doctrine of spoliation, under
which the destruction of evidence -- in addition to criminal and civil sanctions
-- gives the aggrieved party (here the defense in the case before Brinkema) the
right to argue that the evidence was destroyed for a reason, namely that it
would have have been material, probative evidence damaging to the party who
destroyed it. Thus the act of destroying the evidence may very likely lead to a
reversal of the outcome in the Moussaoui case, requiring a new trial at millions
of dollars of additional expense. All these facts also put a very dark cloud
over the conduct of the prosecution in that case. During the proceedings, Judge
Brinkema herself -- a notably conservative Republican appointee -- repeatedly
expressed frustration and skepticism about their conduct. And it turns out her
skepticism was well founded. They purport to have acted on advice of CIA lawyers
that there were no tapes. The current disclosures leave the candor of these
representations subject to well-warranted suspicion. In fact, an independent
probe of the conduct of the DOJ attorneys handling the Moussaoui case is now
imperative.

· PLAUSIBILITY. Let's cut to the bone. When the Bush Administration trots out
arguments and finds that even Michelle Malkin("it is bad) and Ed
Morrissey ("frankly, the timing stinks") have trouble swallowing them, it's in
serious trouble. And that was the case here. The claims that the policy was
adopted for legitimate reasons didn't pass a smell test; even "the base" wasn't
buying them.

All of which meant: time for a new strategy. So what works better that a good
scapegoating?

But is the scapegoating strategy even marginally plausible? No, it isn't. First,
we have the opening volley -- everything was disclosed and approved in advance.
Even the oversight committees were briefed on this. Everything was kosher. So
know we're being told that they briefed Rockefeller and Harman, but not
President Bush. Does anybody believe that for even a second? No, it's not
plausible. And all this relates to an issue that has involved the White House
like no other issue since the Bush Administration began. The highly coercive
interrogation program -- the "Program" -- was Dick Cheney's baby. He lobbied the
CIA to adopt it and turned to extraordinary measures to overcome their initial
reluctance. (This is how we got the torture memoranda at Justice, after all).
And let's keep in mind that this is a White House in love with secrecy and the
destruction of internal documents which might prove compromising. (Think: Dick
Cheney and his visitors' logs; think: Karl Rove's missing emails, now put at
10,000,000 and counting).

But let's go the next layer down, to CIA. Could a director of ops authorize the
destruction of evidence wanted in a federal criminal case, in the face of a
court order for their production all by his lonesome with no consultation and
approval from above? We have the answer in the initial Hayden memo: these steps
were done in accordance with the law and agency procedure, he says. So the
answer to that question is that it certainly wasn't just Rodriguez. Larry
Johnson, a career intelligence officer, gives us the view from inside:

      Jose Rodriguez will not be the only one walking the public plank on this
      issue. In fact, he did not undertake this mission without the permission
      or direction from higher ups. And when you are the Deputy Director of
      Operations, there are not a lot of people above you. Prominent names
      include George Tenet, John McLaughlin, Porter Goss, and John Rizzo. Darrel
      Plant has an insightful piece giving some important background on Rizzo,
      the acting CIA General Counsel.

      Other intelligence officers likely to be asked tough questions include
      Cofer Black (now a senior official with Blackwater) and Ambassador Henry
      "Hank" Crumpton, who was Cofer's deputy and subsequently served as the
      Coordinator for Counter Terrorism at State Department.

Short answer: Porter Goss, John Rizzo, Cofer Black, Hank Crumpton all either
knew and approved (or winked), or they weren't discharging their duties. That's
in addition to the White House where you can count on it that the intelligence
(manipulation) obsesses Vice President, Dick Cheney, was deep in the know about
all of this.

So that brings us to the parallel argument advanced by the CIA yesterday: all
these tapes don't matter -- they wouldn't really show anything. The problem with
this, as lawyers know, is that's not the way the world works, and neither is it
the way that courtroom rules of decision work. You destroy the evidence, and the
world and the court will believe that it was vitally important and probably
would have sunk your case. That's the presumption that the Rule of Law requires.
But this is a highly charged, deeply political matter, and there is much more at
stake than the freedom or life of a convicted terrorist -- our nation's
reputation before the world, for instance. And on this point, Kevin Drum's
column today nails it perfectly:

      So what would investigators have seen if they'd had access to the tapes?
      One of the captured prisoners was an al-Qaeda operative named Abu
      Zubaydah, and it turns out we have a pretty good idea of what the tape
      would have shown. First, ... from James Risen's State of War:

      ... Tenet caved to Bush entirely on the torture of al-Qaeda detainees.
      After the 2002 capture of Abu Zubaydah, a bin Laden deputy, failed to
      yield much information due to his drowsiness from medical treatment, Bush
      allegedly told Tenet, "Who authorized putting him on pain medication?" Not
      only did Tenet get the message  --  brutality while questioning an enemy
      prisoner was no problem --  but Tenet also never sought explicit White
      House approval for permissible interrogation techniques, contributing to
      what Risen speculates is an effort by senior officials "to insulate Bush
      and give him deniability" on torture.

      And here is Barton Gellman's gloss of Ron Suskind's The One Percent
      Doctrine:

      Abu Zubaydah, his captors discovered, turned out to be mentally ill and
      nothing like the pivotal figure they supposed him to be... Abu Zubaydah
      also appeared to know nothing about terrorist operations; rather, he was
      al-Qaeda's go-to guy for minor logistics.

      [Other unrelated bungling described, all of which is worth clicking the
      link to read.]

      Which brings us back to the unbalanced Abu Zubaydah. "I said he was
      important," Bush reportedly told Tenet at one of their daily meetings.
      "You're not going to let me lose face on this, are you?" "No sir, Mr.
      President," Tenet replied. Bush "was fixated on how to get Zubaydah to
      tell us the truth," Suskind writes, and he asked one briefer, "Do some of
      these harsh methods really work?"

      Interrogators did their best to find out, Suskind reports. They strapped
      Abu Zubaydah to a water-board, which reproduces the agony of drowning.
      They threatened him with certain death. They withheld medication. They
      bombarded him with deafening noise and harsh lights, depriving him of
      sleep. Under that duress, he began to speak of plots of every variety--
      against shopping malls, banks, supermarkets, water systems, nuclear
      plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty.
      With each new tale, "thousands of uniformed men and women raced in a panic
      to each target." And so, Suskind writes, "the United States would torture
      a mentally disturbed man and then leap, screaming, at every word he
      uttered."

      So here's what the tapes would have shown: not just that we had brutally
      tortured an al-Qaeda operative, but that we had brutally tortured an al-
      Qaeda operative who was (a) unimportant and low-ranking, (b) mentally
      unstable, (c) had no useful information, and (d) eventually spewed out an
      endless series of worthless, fantastical "confessions" under duress. This
      was all prompted by the president of the United States, implemented by the
      director of the CIA, and the end result was thousands of wasted man hours
      by intelligence and and law enforcement personnel.

      Nice trifecta there. And just think: there's an entire political party in
      this country that still thinks this is OK.

Hmmm. Is he talking about the Republicans? Okay, but let's remember that in
addition to the army of prolonged adolescent chickenhawks who form the core of
the modern G.O.P., there are a solid number of perfectly decent Republicans who
don't buy into this, namely all of the Republicans who still remember that it's
Abraham Lincoln's party. I think of John McCain, Chuck Hagel and Ron Paul, for
instance. And this week, even Mike Huckabee seems to be coming around on the
point.

The CIA tape destruction presents another test for the Rule of Law in America.
It's a test for Congressional oversight, and it's a test for the Department of
Justice. Michael Mukasey will have to decide whether he considers himself to be
the nation's principle law enforcement officer, or a loyal retainer of George W.
Bush. He's only a few days on the job and the path has clearly divided.

*


New York Times --

December 8, 2007

CIA WAS URGED TO KEEP INTERROGATION VIDEOTAPES

by Mark Mazzetti

http://www.nytimes.com/2007/12/08/washington/08intel.html

WASHINGTON, Dec. 7 -- White House and Justice Department officials, along with
senior members of Congress, advised the Central Intelligence Agency in 2003
against a plan to destroy hundreds of hours of videotapes showing the
interrogations of two operatives of Al Qaeda, government officials said Friday.

The chief of the agency's clandestine service nevertheless ordered their
destruction in November 2005, taking the step without notifying even the CIA's
own top lawyer, John A. Rizzo, who was angry at the decision, the officials
said.

The disclosures provide new details about what Gen. Michael V. Hayden, the CIA
director, has said was a decision "made within CIA itself" to destroy the
videotapes. In interviews, members of Congress and former intelligence officials
also questioned some aspects of the account General Hayden provided Thursday
about when Congress was notified that the tapes had been destroyed.

Current and former intelligence officials say the videotapes showed severe
interrogation techniques used on two Qaeda operatives, Abu Zubaydah and Abd al-
Rahim al-Nashiri, who were among the first three terror suspects to be detained
and interrogated by the CIA in secret prisons after the Sept. 11 attacks.

Top CIA officials had decided in 2003 to preserve the tapes in response to
warnings from White House lawyers and lawmakers that destroying the tapes would
be unwise, in part because it could carry legal risks, the government officials
said.

But the government officials said that Jose A. Rodriguez Jr., then the chief of
the agency's clandestine service, the Directorate of Operations, had reversed
that decision in November 2005, at a time when Congress and the courts were
inquiring deeply into the CIA's interrogation and detention program. Mr.
Rodriguez could not be reached Friday for comment.

As the chairman of the House Intelligence Committee in 2003, Porter J. Goss,
then a Republican congressman from Florida, was among Congressional leaders who
warned the CIA against destroying the tapes, the former intelligence officials
said. Mr. Goss became CIA director in 2004 and was serving in the post when the
tapes were destroyed, but was not informed in advance about Mr. Rodriguez's
decision, the former officials said.

It was not until at least a year after the destruction of the tapes that any
members of Congress were informed about the action, the officials said. On
Friday, Representative Peter Hoekstra, the Michigan Republican who was chairman
of the House Intelligence Committee from 2004 to 2006, said he had never been
told that the tapes were destroyed.

"I think the intelligence committee needs to get all over this," said Mr.
Hoekstra, who has been a strong supporter of the CIA detention and interrogation
program. "This raises a red flag that needs to be looked at."

The first notification to Congress by the CIA about the videotapes was delivered
to a small group of senior lawmakers in February 2003 by Scott W. Muller, then
the agency's general counsel. Government officials said that Mr. Muller had told
the lawmakers that the CIA intended to destroy the interrogation tapes, arguing
that they were no longer of any intelligence value and that the interrogations
they showed put agency operatives who appeared in the tapes at risk.

At the time of the briefing in February 2003, the lawmakers who advised Mr.
Muller not to destroy the tapes included both Mr. Goss and Representative Jane
Harman of California, who was the top Democrat on the House Intelligence
Committee. Ms. Harman described her role on Friday. Mr. Goss's role was
described by former intelligence officials.

According to two government officials, Mr. Muller then raised the idea of
destroying the tapes during discussions in 2003 with Justice Department lawyers
and with Harriet E. Miers, who was then a deputy White House chief of staff. Ms.
Miers became White House counsel in early 2005.

The officials said that Ms. Miers and the Justice Department lawyers had advised
against destroying the tapes, but that it was not clear what the basis for their
advice had been.

A message left at Mr. Muller's law office on Friday was not returned, and White
House officials would not comment about Ms. Miers's role.

It was also not clear when the White House or Justice Department were told that
the tapes had been destroyed, or whether anyone at either place was notified in
advance that Mr. Rodriguez had ordered that the step be taken. Dana Perino, the
White House spokeswoman, said Friday that President Bush had "no recollection"
of being made aware of the tapes' destruction before Thursday, when General
Hayden briefed him on the matter.

In his message to CIA employees on Thursday, General Hayden said that the
leaders of the intelligence committee had been informed of the agency's
"intention to dispose of the material," but he did not say when that
notification took place.

Several former intelligence officials also said there was great concern that the
tapes, which recorded hours of grueling interrogations, could have set off
controversies about the legality of the interrogations and generate a backlash
in the Middle East.

According to one former intelligence official, the CIA then decided to keep the
tapes at the CIA stations in the countries where Abu Zubaydah and Mr. Nashiri
were interrogated.

Abu Zubaydah was captured in Pakistan, and it has been reported that he was
taken to Thailand for part of his interrogation. It is unclear where Mr. Nashiri
was interrogated by CIA operatives.

Mr. Nashiri, a Qaeda operations chief in the Arabian Peninsula until his capture
in 2002, is thought to have planned the October 2000 bombing of the destroyer
Cole in Yemen.

The current and former intelligence officials said that when Mr. Rodriguez
ultimately decided in late 2005 to destroy the tapes, he did so without advising
Mr. Rizzo, Mr. Muller's successor as the agency's top general counsel. Mr. Rizzo
and Mr. Goss were among the CIA officials who were angry when told that the
tapes had been destroyed, the officials said.

Mr. Rodriguez retired from the agency this year.

The Senate Intelligence Committee announced Friday that it was starting an
investigation into the destruction of the videotapes.

Senator John D. Rockefeller IV, the West Virginia Democrat who is chairman of
the committee, said, "Whatever the intent, we must get to the bottom of it."

*


Harper's --

December 6, 2007

OBSTRUCTION OF JUSTICE AT THE CIA

by Scott Horton

http://harpers.org/archive/2007/12/hbc-90001868

The Bush Administration has had a consistent practice of destroying evidence
which would document serious crimes perpetrated with the connivance or consent
of senior officials, particularly including acts of torture and abuse performed
on detainees in connection with what President Bush calls the "Program." Some of
the strongest evidence to date of this practice has just entered the the public
record. Prosecutors take note.

Today, as Congress proceeds with legislation which clarifies what has always
been the case, namely that use of the distinguishing features of the "Program"
is a serious crime, the New York Times reports the wholesale destruction of
important evidence of the crimes as a conscious policy at the CIA.

        The Central Intelligence Agency in 2005 destroyed at least two
        videotapes documenting the interrogation of two Al Qaeda operatives in
        the agency's custody, a step it took in the midst of Congressional and
        legal scrutiny about the C.I.A's secret detention program, according to
        current and former government officials.

        The videotapes showed agency operatives in 2002 subjecting terror
        suspects -- including Abu Zubaydah, the first detainee in CIA custody
        -- to severe interrogation techniques. They were destroyed in part
        because officers were concerned that tapes documenting controversial
        interrogation methods could expose agency officials to greater risk of
        legal jeopardy, several officials said.

        The CIA said today that the decision to destroy the tapes had been
        made "within the CIA itself," and they were destroyed to protect the
        safety of undercover officers and because they no longer had
        intelligence value. The agency was headed at the time by Porter J. Goss.
        Through a spokeswoman, Mr. Goss declined this afternoon to comment on
        the destruction of the tapes.

Let's first focus on this question: Why is this evidence being destroyed?

The answer is painfully acknowledged. The CIA leadership and other senior
administration officials are fully cognizant of the fact that the use of a
number of specific practices which these tapes almost certainly document, to-
wit: waterboarding, long-time standing, hypothermia, psychotropic drugs and
sleep deprivation in excess of two days, are serious crimes under American law
and the law of almost all nations. Consequently, those who have used them and
those who have authorized their use will almost certainly ultimately face
criminal prosecution at some point in the future. The Administration's attempts
to immunize the perpetrators have failed. Any purported grant of a pardon by
President Bush will be legally ineffective, because Bush himself is a
collaborator in the scheme. And there is no statute of limitations. Therefore
the prospect of prosecution is hardly far-fetched. It is a virtual certainty. So
the evidence is being destroyed precisely because it would be used as evidence
of criminal acts in a prosecution of administration figures and those acting
under their direction. Therefore, this is a conscious, calculated obstruction of
justice.

The second question is: Where has Congress been throughout this period?

The Associated Press now has a story up which raises even more troubling
prospects. In it, General Hayden suggests that he notified Congressional
oversight and they expressed no objection to the destruction of evidence.

        CIA Director Michael Hayden said House and Senate intelligence committee
        leaders were informed of the existence of the tapes and the CIA's
        intention to destroy them. He also said the CIA's internal watchdog
        watched the tapes in 2003 and verified that the interrogation practices
        were legal.

This raises more issues. Who in the intelligence committees were notified? What
did they do that expressed consent? Indeed, if they failed to raise objections,
they weren't performing their oversight function. Chairman Rockefeller has a
different description of what happened from General Hayden:

        "While we were provided with very limited information about the
        existence of the tapes, we were not consulted on their usage nor the
        decision to destroy the tapes. And, we did not learn until much later,
        November 2006 -- 2 months after the full committee was briefed on the
        program -- that the tapes had in fact been destroyed in 2005."

The suggestion that the "CIA's internal watchdog" viewed the tapes and approved
in 2003 raises more questions. But first let's note: this was when John Yoo's
torture memorandum, issued out of the Department of Justice's Office of Legal
Counsel in order to bind the CIA to his lunatic notions of torture, was in
force. So that determination that they "were legal" is in fact John Yoo's
determination that they were "legal." And this is as worthless a determination
as has ever appeared within a rifleshot of the Potomac. Indeed, if that's
Hayden's basis for saying it was legal, the proper reaction would not be to be
reassured, it would be to be still more concerned.

In addition to being evidence of criminal conduct undertaken with official
sanction, the tapes would be probative of the value of any "confessions" or
"admissions" secured using the techniques. They would establish that any such
evidence is worthless. By destroying the evidence, the Bush Administration is
laying the foundations for the use of torture-induced "evidence" in court room
proceedings, in violation of U.S. law and international commitments. In fact we
now have a number of witnesses saying that exactly this is in train, including a
JAG colonel whose testimony before Congress Defense Department General Counsel
(another of the prime torture conspirators) intervened to block.

And, Andrew Sullivan reminds us in asking the so-appropriate question "Is this a
Banana Republic?," the same unexplained disappearance of tapes marked the
prosecution of Jose Padilla:

        The same happened in the case of Jose Padilla:

        "The missing DVD dates from March 2, 2004. It contains a video of the
        last interrogation session of Padilla, then a declared 'enemy combatant'
        under an order from President Bush, while he was being held in military
        custody at a U.S. Navy brig in Charleston, S.C. But in recent days, in
        the course of an unusual court hearing about Padilla's mental condition,
        a government lawyer disclosed to a surprised courtroom that the Defense
        Intelligence Agency -- which had custody of the evidence -- was no
        longer able to locate the DVD. As a result, it was not included in a
        packet of classified DVDs that was recently turned over to defense
        lawyers under orders from Judge Cooke.

        "The disclosure that the Pentagon had lost a potentially important piece
        of evidence in one of the U.S. government's highest-profile terrorism
        cases was met with claims of incredulity by some defense lawyers and
        human-rights groups monitoring the case. "This is the kind of thing you
        hear when you're litigating cases in Egypt or Morocco or Karachi," said
        John Sifton, a lawyer with Human Rights Watch, one of a number of groups
        that has criticized the U.S. government's treatment of Padilla. "It is
        simply not credible that they would have lost this tape. The
        administration has shown repeatedly they are more interested in covering
        up abuses than getting to the bottom of whether people were abused."

Moreover, in Iraq in the period just before the investigation of Gen. Taguba was
commenced, a number of witnesses have now described a special "clean up" mission
that was sent through detention facilities, requesting that photos, recordings,
records and documents be collected for destruction, to leave no evidence of the
practices established there at the direction of Secretary Rumsfeld himself. Two
generals have now described this "clean up."

All of this is clear cut obstruction of justice, a serious federal crime. <FN1>
In the course of the last few years, we have witnesses a number of macho federal
prosecutors utilize obstruction statutes to go after businessmen who were a bit
too quick to turn to the shredder, usually under circumstances which were
extremely ambiguous. The prosecutors used all the power and force associated
with their office to attempt to criminalize these acts. This case is quite
different. It is openly, clearly and undeniably criminal obstruction, and the
Justice Department actually appears to be participating in the criminal acts.

Next steps. This requires an urgent investigation to get to the bottom of things
at the CIA. General Hayden has been pleading for the right to be able to operate
in the shadows. "We obey the law. Trust us." The memorandum he issued to CIA
employees this evening, which Prof. Lederman has ably deconstructed, is an
amazing assemblage of falsehoods, evasions and half-truths. One thing that flows
inescapably from what Hayden writes: he believes that torture techniques are
just fine, and he apparently has authorized their use. This is already enough
for us to ask how this man can possibly be permitted to serve as director of
Central Intelligence? He needs to be the subject of a formal, independent
criminal probe.

Senator Rockefeller's statement also raises more questions than it answers.
Frankly, he looks completely spineless. If he knew of the plans to destroy the
torture tapes, and failed to intervene to stop it, then he has no business
serving as chair of the Intelligence Oversight Committee. He should resign
immediately, and someone with a higher level of moral resolve should occupy this
spot. It is clear that in the period in question, there was no effective
oversight of the CIA at all. Indeed, it was this vacuum of accountability that
enabled not only the torture system, but the rampant corruption that arrived
with the Gosslings. There is no evidence that General Hayden has materially
changed the situation.

A nation that sits silently and allows this to transpire demonstrates
complicity. The oversight committees need to start doing their job. And we need
a Department of Justice that enforces the law rather than suborning serious
official criminality. As John McCain very aptly said in the last presidential
debate, this is the defining issue for our country -- whether the country
continues on the path that George Washington and Abraham Lincoln set for it, or
whether it adopts the mentality and practices, the unbridled authoritarianism
and official cruelty, of Kaiser Wilhelm and similar autocrats. The choice
couldn't be clearer, nor the moral implications of the decision.

Footnote:

1. 18 U.S.C. sec. 1502(c): "Whoever corruptly . . . alters, destroys, mutilates,
   or conceals a record, document, or other object, or attempts to do so, with
   the intent to impair the object's integrity or availability for use in an
   official proceeding; or otherwise obstructs, influences, or impedes any
   official proceeding, or attempts to do so, shall be fined under this title or
   imprisoned not more than 20 years, or both."

   18 U.S.C. sec. 1505: "Whoever corruptly . . . obstructs or impedes or
   endeavors to obstruct or impede the due and proper administration of the law
   under which any pending proceeding is being had before any department or
   agency of the United States, or the due and proper exercise of the power of
   inquiry under which any inquiry or investigation is being had by either
   House, or any committee of either House or any joint committee of the
   Congress. . . Shall be fined under this title, imprisoned not more than 5
   years or, if the offense involves international or domestic terrorism (as
   defined in section 2331), imprisoned not more than 8 years, or both."

*


New York Times --

December 6, 2007

CIA DESTROYED TAPES OF INTERROGATIONS

By Mark Mazzetti

http://www.nytimes.com/2007/12/06/washington/06cnd-intel.html

WASHINGTON, Dec. 6 -- The Central Intelligence Agency in 2005 destroyed at least
two videotapes documenting the interrogation of two Al Qaeda operatives in the
agency's custody, a step it took in the midst of Congressional and legal
scrutiny about the C.I.A's secret detention program, according to current and
former government officials.

The videotapes showed agency operatives in 2002 subjecting terror suspects --
including Abu Zubaydah, the first detainee in CIA custody -- to severe
interrogation techniques. They were destroyed in part because officers were
concerned that tapes documenting controversial interrogation methods could
expose agency officials to greater risk of legal jeopardy, several officials
said.

The CIA said today that the decision to destroy the tapes had been made "within
the CIA itself," and they were destroyed to protect the safety of undercover
officers and because they no longer had intelligence value. The agency was
headed at the time by Porter J. Goss. Through a spokeswoman, Mr. Goss declined
this afternoon to comment on the destruction of the tapes.

The existence and subsequent destruction of the tapes are likely to reignite the
debate over the use of severe interrogation techniques on terror suspects, and
their destruction raises questions about whether CIA officials withheld
information about aspects of the program from the courts and from the Sept. 11
commission appointed by President Bush and Congress. It was not clear who within
the CIA authorized the destruction of the tapes, but current and former
government officials said it had been approved at the highest levels of the
agency.

The New York Times informed the CIA on Wednesday evening that it planned to
publish an article in Friday's newspaper about the destruction of the tapes.
Today, the CIA director, General Michael V. Hayden, wrote a letter to the agency
workforce explaining the matter.

The recordings were not provided to a federal court hearing the case of the
terror suspect Zacarias Moussaoui or to the Sept. 11 commission, which had made
formal requests to the CIA for transcripts and any other documentary evidence
taken from interrogations of agency prisoners.

CIA lawyers told federal prosecutors in 2003 and 2005, who relayed the
information to a federal court in the Moussaoui case, that the CIA did not
possess recordings of interrogations sought by the judge in the case. It was
unclear whether the judge had explicitly sought the videotape depicting the
interrogation of Mr. Zubaydah.

Mr. Moussaoui's lawyers had hoped that records of the interrogations might
provide exculpatory evidence for Mr. Moussaoui -- showing that the Al Qaeda
detainees did not know Mr. Moussaoui and clearing him of involvement in the
Sept. 11, 2001, plot.

General Hayden's statement said that the tapes posed a "serious security risk,"
and that if they were to become public they would have exposed CIA officials
"and their families to retaliation from Al Qaeda and its sympathizers."

"What matters here is that it was done in line with the law," he said. He said
in his statement that he was informing agency employees because "the press has
learned" about the destruction of the tapes.

General Hayden said in a statement that leaders of Congressional oversight
committees were fully briefed on the matter, but some Congressional officials
said notification to Congress had not been adequate.

"This is a matter that should have been briefed to the full Intelligence
Committee at the time," an official with the House Intelligence Committee said.
"This does not appear to have been done. There may be a very logical reason for
destroying records that are no longer needed; however, this requires a more
complete explanation. "

Staff members of the Sept. 11 commission, which completed its work in 2004,
expressed surprise when they were told that interrogation videotapes existed
until 2005.

"The commission did formally request material of this kind from all relevant
agencies, and the commission was assured that we had received all the material
responsive to our request," said Philip D. Zelikow, who served as executive
director of the Sept. 11 commission and later as a senior counselor to Secretary
of State Condoleezza Rice.

"No tapes were acknowledged or turned over, nor was the commission provided with
any transcript prepared from recordings," he said.

Daniel Marcus, a law professor at American University who served as general
counsel for the Sept. 11 commission and was involved in the discussions about
interviews with Al Qaeda leaders, said he had heard nothing about any tapes
being destroyed.

If tapes were destroyed, he said, "it's a big deal, it's a very big deal,"
because it could amount to obstruction of justice to withhold evidence being
sought in criminal or fact-finding investigations.

General Hayden said the tapes were originally made to ensure that agency
employees acted in accordance with "established legal and policy guidelines."
General Hayden said the agency stopped videotaping interrogations in 2002.

"The tapes were meant chiefly as an additional, internal check on the program in
its early stages," his statement read

In October, federal prosecutors in the Moussaoui case were forced to write a
letter to the court amending those CIA declarations. The letter stated that in
September, the CIA notified the United States attorney's office in Alexandria,
Va., that it had discovered a videotape documenting the interrogation of a
detainee. After a more thorough search, the letter stated, CIA officials
discovered a second videotape and one audio tape.

The letter is heavily redacted and sentences stating which detainees'
interrogations the recordings document are blacked out. Signed by the United
States attorney, Chuck Rosenberg, the letter states that the CIA's search for
interrogation tapes "appears to be complete."

There is no mention in the letter of the tapes that CIA officials destroyed in
2005. Mr. Moussaoui was convicted last year and sentenced to life in prison.

John Radsan, who worked as a CIA lawyer from 2002 to 2004 and is now a professor
at William Mitchell College of Law, said the destruction of the tapes could
carry serious legal penalties.

"If anybody at the CIA hid anything important from the Justice Department, he or
she should be prosecuted under the false statement statute," he said.

A former intelligence official who was briefed on the issue said the videotaping
was ordered as a way of assuring "quality control" at remote sites following
reports of unauthorized interrogation techniques. He said the tapes, along with
still photographs of interrogations, were destroyed after photographs of abuse
of prisoners at Abu Ghraib became public in May 2004 and CIA officers became
concerned about a possible leak of the videos and photos.

He said the worries about the impact a leak of the tapes might have in the
Muslim world were real.

It has been widely reported that Mr. Zubaydah was subjected to several tough
physical tactics, including waterboarding, which involves near-suffocation. But
CIA officers judged that the release of photos or videos would nonetheless
provoke a strong reaction.

"People know what happened, but to see it in living color would have far greater
power," the official said.

Representative Rush Holt of New Jersey, a Democratic member of the House
Intelligence Committee, has been pushing legislation in Congress to have all
detainee interrogations videotaped so officials can refer to the tapes multiple
times to glean better information.

Mr. Holt said he had been told many times that the CIA does not record the
interrogation of detainees. "When I would ask them whether they had reviewed the
tapes to better understand the intelligence, they said 'What tapes?'," he said.

[ Eric Lichtblau and Scott Shane contributed reporting. ]

*


CIA / ABC News --

December 6, 2007

Message from CIA Director Michael Hayden:

TAPING OF EARLY DETAINEE INTERROGATIONS

http://blogs.abcnews.com/theblotter/2007/12/cia-destroyed-v.html

The press has learned that back in 2002, during the initial stage of our
terrorist detention program, CIA videotaped interrogations, and destroyed the
tapes in 2005. I understand that the Agency did so only after it was determined
they were no longer of intelligence value and not relevant to any internal,
legislative, or judicial inquiries -- including the trial of Zacarias Moussaoui.
The decision to destroy the tapes was made within CIA itself. The leaders of our
oversight committees in Congress were informed of the videos years ago and of
the Agency"s intention to dispose of the material.  Our oversight committees
also have been told that the videos were, in fact, destroyed.

If past public commentary on the Agency's detention program is any guide, we may
see misinterpretations of the facts in the days ahead. With that in mind, I want
you to have some background now.

CIA's terrorist detention and interrogation program began after the capture of
Abu Zubaydah in March 2002. Zubaydah, who had extensive knowledge of al-Qa'ida
personnel and operations, had been seriously wounded in a firefight. When
President Bush officially acknowledged in September 2006 the existence of CIA's
counter-terror initiative, he talked about Zubaydah, noting that this terrorist
survived solely because of medical treatment arranged by CIA. Under normal
questioning, Zubaydah became defiant and evasive. It was clear, in the
President's words, that "Zubaydah had more information that could save innocent
lives, but he stopped talking."

That made imperative the use of other means to obtain the information -- means
that were lawful, safe, and effective. To meet that need, CIA designed specific,
appropriate interrogation procedures. Before they were used, they were reviewed
and approved by the Department of Justice and by other elements of the Executive
Branch. Even with the great care taken and detailed preparations made, the fact
remains that this effort was new, and the Agency was determined that it proceed
in accord with established legal and policy guidelines. So, on its own, CIA
began to videotape interrogations.

The tapes were meant chiefly as an additional, internal check on the program in
its early stages. At one point, it was thought the tapes could serve as a
backstop to guarantee that other methods of documenting the interrogations --
and the crucial information they produced -- were accurate and complete. The
Agency soon determined that its documentary reporting was full and exacting,
removing any need for tapes. Indeed, videotaping stopped in 2002.

As part of the rigorous review that has defined the detention program, the
Office of General Counsel examined the tapes and determined that they showed
lawful methods of questioning. The Office of Inspector General also examined the
tapes in 2003 as part of its look at the Agency's detention and interrogation
practices. Beyond their lack of intelligence value -- as the interrogation
sessions had already been exhaustively detailed in written channels -- and the
absence of any legal or internal reason to keep them, the tapes posed a serious
security risk. Were they ever to leak, they would permit identification of your
CIA colleagues who had served in the program, exposing them and their
families to retaliation from al-Qa'ida and its sympathizers.

These decisions were made years ago. But it is my responsibility, as Director
today, to explain to you what was done, and why. What matters here is that it
was done in line with the law. Over the course of its life, the Agency's
interrogation program has been of great value to our country. It has helped
disrupt terrorist operations and save lives. It was built on a solid foundation
of legal review. It has been conducted with careful supervision. If the story of
these tapes is told fairly, it will underscore those facts.

Mike Hayden

*


Washington Post --

December 5, 2007

EVIDENCE OF INNOCENCE REJECTED AT GUANTANAMO

By Carol D. Leonnig

http://www.washingtonpost.com/wp-dyn/content/
article/2007/12/04/AR2007120402307.html

Just months after U.S. Army troops whisked a German man from Pakistan to the
military prison at Guantanamo Bay, Cuba, in 2002, his American captors concluded
that he was not a terrorist.

"USA considers Murat Kurnaz's innocence to be proven," a German intelligence
officer wrote that year in a memo to his colleagues. "He is to be released in
approximately six to eight weeks."

But the 19-year-old student was not freed. Instead, over the next four years,
two U.S. military tribunals that were responsible for determining whether
Guantanamo Bay detainees were enemy fighters declared him a dangerous al-Qaeda
ally who should remain in prison.

The disparity between the tribunal's judgments and the intelligence community's
consensus view that Kurnaz is innocent is detailed in newly released military
and court documents that track his fate. His attorneys, who sued the Pentagon to
gain access to the documents, say that they reflect policies that result in
mistreatment of the hundreds of foreigners who have been locked up for years at
the controversial prison.

The Supreme Court intends to weigh the legitimacy of the military tribunals at a
hearing this morning. Lawyers for Kurnaz and other detainees plan to argue that
the panels violate the U.S. Constitution and international law. They say that
the proceedings have not provided Guantanamo Bay detainees with a fair and
impartial hearing.

Lawyers for the Bush administration will argue that the tribunals have afforded
suspected enemies all the rights to which they are entitled. The administration
maintains that detainees need not know all of the evidence against them. The
tribunals were established in 2004 after the Supreme Court ruled that such
panels are needed when holding prisoners indefinitely, and Congress endorsed
them in 2005.

U.S. District Judge Joyce Hens Green, who was privy to the classified record of
the tribunal's decision-making about Kurnaz in 2004, concluded in January 2005
that his treatment provided powerful evidence of bias against prisoners, and she
deemed the proceedings illegal under U.S. and international law. But her ruling,
which depicted the allegations against Kurnaz as unsubstantiated and as an
inappropriate basis for keeping him locked up, was mostly classified at the
time.

In newly released passages, however, Green's ruling reveals that the tribunal
members relied heavily on a memo written by a U.S. brigadier general who noted
that Kurnaz had prayed while the U.S. national anthem was sung in the prison and
that he expressed an unusual interest in detainee transfers and the guard
schedule. Other documents make clear that U.S. intelligence officials had
earlier concluded that Kurnaz, who went to Pakistan shortly after the terrorist
attacks of Sept. 11, 2001, to visit religious sites, had simply chosen a bad
time to travel.

The process is "fundamentally corrupted," said Baher Azmy, a professor at Seton
Hall Law School who represents Kurnaz. "All of this just reveals that they had
the wrong person and they knew it."

He added: "His entire file reveals he has no connection with terrorism. None.
Confronted with this uncomfortable fact, the military panel makes up evidence"
to justify its claim that only real terrorists are incarcerated at Guantanamo
Bay.

Cmdr. Jeffrey D. Gordon, a Pentagon spokesman, declined to comment on whether
the military now believes that it erred in imprisoning Kurnaz, or to discuss the
release of new records. He stressed that a substantial amount of information
about Kurnaz remains classified.

In a written statement, Gordon said that the military's determinations about
detainees are "necessarily impacted by a variety of factors which can include
the passage of time. Also, such decisions are based on the entirety of the
information before DoD, and it is misguided to draw conclusions based on only
parts of some documents."

Some of Kurnaz's experience -- including the existence of official documents
suggesting that he was detained by mistake -- is well known. In March 2005, The
Washington Post wrote about Green's decision after court officials inadvertently
declassified portions of it. Kurnaz was released from Guantanamo Bay in August
2006, a few months after new German Chancellor Angela Merkel told President Bush
in a private meeting that obtaining the detainee's freedom was one of her top
priorities.

But the text of the internal government memos exonerating Kurnaz, the Army
general's memo supporting Kurnaz's continued incarceration and key portions of
Green were not disclosed earlier because the U.S. military official overseeing
Guantanamo Bay argued that their release would compromise national security.

Kurnaz was born in Turkey and had lived nearly his entire life in Germany. He
traveled to Pakistan on Oct. 3, 2001, to visit religious sites, connecting at
one point with a missionary group that U.S. military officials have said
promotes jihadi ideology and has been used as a cover by members of the Taliban
and al-Qaeda.

In December 2001, Pakistani police pulled Kurnaz and missionaries off a bus and
handed him to U.S. troops. Four weeks later, he was flown to Guantanamo Bay --
one of the first detainees to arrive in the newly opened prison.

German and American intelligence officers interviewed Kurnaz in September 2002,
records show. They jointly concluded that nothing was linking the man from
Bremen to terrorist cells or enemy fighters and that he should be freed. In a
memo dated May 19, 2003, the commanding general of the Criminal Investigation
Task Force, a Pentagon intelligence unit that interrogates detainees and
collects evidence about them, wrote that "CITF is not aware of evidence that
Kurnaz was or is a member of al-Qaeda. CITF is not aware of any evidence that
Kurnaz may have aided or abetted, or conspired to commit acts of terrorism."

After the Supreme Court ruled in 2004 that Guantanamo Bay prisoners could not be
held indefinitely without fact-finding by an objective tribunal, the Pentagon
hastily assembled panels of field-grade officers to serve as Combatant Status
Review Tribunals. Since they began, the panels have overwhelmingly supported
continued detention of those at Guantanamo Bay, ruling that 534 detainees were
"enemy combatants," while only 38 were not.

In September 2004, one such panel cited intelligence on a suicide bombing by
someone Kurnaz allegedly knew -- an account later found to be incorrect -- in
concluding that Kurnaz was "properly classified as an enemy combatant" and was a
member of al-Qaeda.

In a previously classified passage of her ruling, Green said the panel ignored
"conflicting exculpatory evidence in at least three separate documents," thereby
raising questions about its impartiality. The only solid information in Kurnaz's
file showed that the CIA, U.S. military intelligence and German intelligence
found nothing linking him to terrorist groups, she said.

Green complained about the panel's reliance on an unsubstantiated memo, dated
June 25, 2004, written by Brig. Gen. David B. Lacquement, then head of U.S.
Southern Command's intelligence unit, to Defense Secretary Donald H. Rumsfeld.

Much of Lacquement's memo is still redacted. But besides noting Kurnaz's prayers
during the U.S. national anthem, the newly declassified portions also state that
he "asked how tall the basketball rim was" in the prison yard, which Lacquement
said revealed a desire to escape. In addition, Kurnaz "attempted to obtain
information concerning detainee transfers" and "to discuss the current work
schedule of the guards," the memo notes.

Green expressed doubt that Lacquement had developed compelling new information
about terrorist links that tipped the scales. Lacquement, who is now a major
general commanding the Army Intelligence and Security Command at Fort Belvoir,
did not respond to requests for comment.

At a minimum, Green wrote, the documents raised the question of what specific
information could have been discovered between the May 2003, memo stating that
there was no evidence that the detainee was a member of al-Qaeda or was in
direct contact with any Taliban recruiters, and the June 2004, memo by the
general stating that the detainee was a danger.

"However the record in Kurnaz is interpreted, it definitively establishes that
the detainee was not provided with a fair opportunity to contest the material
allegations against him," Green wrote. Until recently, much of her denunciation
was classified, by a court security office relying on Pentagon and Justice
Department officials for advice on what to conceal from the public.

In January 2006, another military review panel decided once again that Kurnaz
was still "a danger" and should remain at Guantanamo Bay. Internal Defense
Department e-mails show that this administrative review board, roughly
comparable to a parole board, did not look at the material that Kurnaz's lawyer
had submitted to make its decision.

After a public uproar in Germany over the German government's role in Kurnaz's
continuing imprisonment, Merkel pressed Bush at a private meeting that January
to release him. In July 2006, an unusual second review board convened.

The FBI's counterterrorism division, new records show, wrote in a memo dated May
31, 2006, for that board that "the FBI has no investigative interest in this
detainee" and that "there is no information that Kurnaz received any military
training or is associated with the Taliban or al-Qa'ida." The wording of its
brief conclusion about whether Kurnaz posed any threat was redacted.

The second review board ruled that Kurnaz was no longer an enemy combatant and
that he could be released, but the reasons remain redacted.

Not until August 2006, nearly five years after his imprisonment began, was
Kurnaz flown home, goggled, masked and bound, as he had been when he was flown
to Guantanamo Bay. As U.S. military officials led him out of Ramstein Air Base,
and as he was about to take his first steps onto German soil, the Americans
offered to leave plastic wrist cuffs on their former prisoner. German federal
police declined.

He was escorted as a free man to the back seat of a Mercedes-Benz sedan for the
short ride to his reunion with his parents and two younger brothers.

[ Staff researcher Julie Tate contributed to this report. ]

*


Boston Globe --

December 3, 2007

'I WILL NEVER LEAVE GUANTANAMO'

By Sabin Willett

http://www.boston.com/bostonglobe/editorial_opinion/oped/
articles/2007/12/03/i_will_never_leave_guantanamo/

"We have important news for you!"

Chained to the floor of a cell in Camp Six, Guantanamo, Joseph said nothing. But
he had some news for us, too.

The Court of Appeals had decided what record - what pieces of paper - it would
examine when it considered his "Detainee Treatment Act" case. This was big. For
months, we urged the Bush administration to release its exculpatory evidence
about Joseph. The administration fought back hard. And we'd won - a brilliant
victory!

"What do they say - these papers?" Joseph asked.

An awkward pause followed. We didn't exactly have them yet. The government had
moved for reconsideration, filed affidavits, more briefs. There might be further
appeals. It was complicated. The order came down in July, and now it was
October. They hadn't produced a page. But it was a great victory!

Joseph listened in silence. During six years of US imprisonment he's heard this
sort of thing before. All this talk from American lawyers about American courts
- in Camp Six a man can't be sure that American courts exist at all, but if they
do, it is certain that nothing ever comes of them but essays. No one alleges
that Joseph was ever a terrorist, or a soldier, or a criminal. The military told
him in 2002 he was innocent. Again in 2003. Again in 2006. He filed a habeas
petition in 2005. He would be gone if the military could find a country to take
him.

When Senator Joseph Lieberman and the other guardians of freedom in Congress
stripped his habeas rights, he filed a Detainee Treatment Act petition. That was
11 months ago.

For two years and three months he'd been asking the federal judiciary to hear a
few simple facts. No judge ever has.

"I also have something important to tell you," Joseph said. "About my wife."

What came next was deeply personal. (It is why I use "Joseph," a pseudonym for
this good husband.) A Muslim, he does not like to speak to me of such personal
things. But he had no choice. Camp Six is complete isolation. The men call it
the dungeon above the ground. He is held alone in a metal cell, denied any
contact with companions, books, news, the world - with his wife or child.

North Korea used this isolation technique against our airmen in 1952. We know a
good idea when we see it, so the taxpayers paid $30 million to Dick Cheney's
former company to duplicate North Korea.

The bunks had to be filled. Joseph got one. And so a message through me was the
only way he could do his duty by her.

"I want you to tell her that it is time for her . . .. to move on."

"You mean . . .?"

"Yes. I will never leave Guantanamo."

His affect was flat, his voice soft. He looked up only once, when he said to me,
urgently, "She must understand I am not abandoning her. That I love her. But she
must move on with her life. She is getting older."

We are all getting older. Guantanamo is now far older than any World-War-II POW
camp. Hope fled the sunless gloom of Camp Six long ago.

Joseph slips with the others down isolation's slope. He stands in the twilight.
Beyond, the darkness of insanity beckons. He seems ready to surrender to it.

Somewhere in a file drawer in Guantanamo is a copy of the memo that clears
Joseph for release. But it was written in 2006, and is as forgotten as he is. So
the good husband did the last thing a man in isolation can do. He set his wife
free from her husband's prison.

Not to worry, Joseph! Our federal judges are at their posts! They are making
important rulings in your case - earnestly debating the important question of
which pieces of paper to look at!

[ Sabin Willett is a partner at Bingham McCutchen, which represents prisoners at
the Guantanamo prison. ]

*


Washington Post --

December 1, 2007

JORDAN'S SPY AGENCY: HOLDING CELL FOR THE CIA
Foreign Terror Suspects Tell of Torture

By Craig Whitlock

http://www.washingtonpost.com/wp-dyn/content/
article/2007/11/30/AR2007113002484.html

AMMAN, Jordan -- Over the past seven years, an imposing building on the
outskirts of this city has served as a secret holding cell for the CIA.

The building is the headquarters of the General Intelligence Department,
Jordan's powerful spy and security agency. Since 2000, at the CIA's behest, at
least 12 non-Jordanian terrorism suspects have been detained and interrogated
here, according to documents and former prisoners, human rights advocates,
defense lawyers and former U.S. officials.

In most of the cases, the spy center served as a covert way station for CIA
prisoners captured in other countries. It was a place where they could be hidden
after being arrested and kept for a few days or several months before being
moved on to Guantanamo Bay, Cuba, or CIA prisons elsewhere in the world.

Others were arrested while transiting through Jordan, including two detained
during stopovers at Amman's international airport. Another prisoner, a
microbiology student captured in Pakistan in the weeks after the attacks of
Sept. 11, 2001, has not been seen since he was flown to Amman on a CIA plane six
years ago.

The most recent case to come to light involved a Palestinian detainee, Marwan
al-Jabour, who was transferred to Jordan last year from a CIA-run secret prison,
then released several weeks later in the Gaza Strip.

The General Intelligence Department, or GID, is perhaps the CIA's most trusted
partner in the Arab world. The Jordanian agency has received money, training and
equipment from the CIA for decades and even has a public English-language Web
site. The relationship has deepened in recent years, with U.S. officials
praising their Jordanian counterparts for the depth of their knowledge regarding
al-Qaeda and other radical Islamic networks.

In the aftermath of Sept. 11, however, the GID was attractive for another
reason, according to former U.S. counterterrorism officials and Jordanian human
rights advocates. Its interrogators had a reputation for persuading tight-lipped
suspects to talk, even if that meant using abusive tactics that could violate
U.S. or international law.

"I was kidnapped, not knowing anything of my fate, with continuous torture and
interrogation for the whole of two years," Al-Haj Abdu Ali Sharqawi, a
Guantanamo prisoner from Yemen, recounted in a written account of his
experiences in Jordanian custody. "When I told them the truth, I was tortured
and beaten."

Sharqawi was captured in Karachi, Pakistan, in February 2002 in a joint
Pakistani-U.S. operation. Although the Guantanamo Bay prison had just opened,
the CIA flew him instead to Amman, where he was imprisoned for 19 months,
according to his account and flight records. He was later taken to another CIA-
run secret prison, his statement says, before he was finally moved to Guantanamo
in February 2004.

Sharqawi said he was threatened with sexual abuse and electrocution while in
Jordan. He also said he was hidden from officials of the International Committee
for the Red Cross during their visits to inspect Jordanian prisons.

"I was told that if I wanted to leave with permanent disability both mental and
physical, that that could be arranged," Sharqawi said in his April 2006
statement, which was released by a London-based attorney, Clive Stafford Smith,
who represents Guantanamo inmates. "They said they had all the facilities of
Jordan to achieve that. I was told that I had to talk, I had to tell them
everything."

Bush administration officials have said they do not hand over terrorism suspects
to countries that are likely to abuse them. For several years, however, the
State Department has cited widespread allegations of torture by Jordan's
security agencies in its annual report cards on human rights.

Independent monitors have become increasingly critical of Jordan's record. Since
2006, the United Nations, Amnesty International and Human Rights Watch have
issued reports on abuses in Jordan, often singling out the General Intelligence
Department.

Former prisoners have reported that their captors were expert in two practices
in particular: falaqa, or beating suspects on the soles of their feet with a
truncheon and then, often, forcing them to walk barefoot and bloodied across a
salt-covered floor; and farruj, or the "grilled chicken," in which prisoners are
handcuffed behind their legs, hung upside down by a rod placed behind their
knees, and beaten.

In a report released in January 2007, Manfred Nowak, the U.N. special
investigator for torture, found that "the practice of torture is routine" at GID
headquarters and concluded "that there is total impunity for torture and ill-
treatment in the country."

Officials with the GID did not respond to a letter seeking an interview for this
article. The Jordanian Foreign Ministry also did not respond to interview
requests.

The CIA declined to comment on its relationship with the GID but defended in
general the covert transfer of terrorism suspects to other countries, a practice
known as rendition.

"The United States does not transfer individuals to any country if it believes
they will be tortured there," said Paul Gimigliano, a CIA spokesman. "Setting
aside the myths, rendition is, in fact, a lawful, effective tool that has been
used over the years on a very limited scale, and is designed to take terrorists
off the street."

'IN JORDAN, NOBODY ASKS'

Immediately after Sept. 11, the CIA had nowhere to hold terrorism suspects it
had captured abroad. The military prison at Guantanamo did not open until
January 2002. And it took the CIA until the spring of 2002 to get its own
network of secret overseas prisons up and running.

Short on options, the CIA sought help from its counterparts in Jordan. Soon, CIA
airplanes began carrying prisoners to Amman.

Jamil Qasim Saeed Mohammed, a Yemeni microbiology student, was captured in a
U.S.-Pakistani operation in Karachi a few weeks after 9/11 on suspicion of
helping to finance al-Qaeda operations. Witnesses reported seeing masked men
take him aboard a Gulfstream V jet at the Karachi airport Oct. 24, 2001.

Records show that the plane was chartered by a CIA front company and that it
flew directly to Amman. Mohammed has not been seen since. Amnesty International
said it has asked the Jordanian government for information on his whereabouts
but has not received an answer.

About the same time, Jamal Alawi Mari, another Yemeni citizen, was apprehended
at his home in Karachi by Pakistani and U.S. agents. Records show that U.S.
officials suspected him of working for Islamic charities that allegedly
supported al-Qaeda.

Soon after, Mari was also flown by the CIA to Amman. "They never told me where I
was going," he testified later before a U.S. military tribunal. "I found out
later I was in Jordan."

Mari said he was imprisoned for four months in Jordan, out of sight of visiting
Red Cross officials. In early 2002, he was taken to Guantanamo and remains
imprisoned there.

Defense lawyers and human rights advocates in Amman said it wasn't a surprise
that the CIA turned to Jordan's security agency for assistance.

"In America, people will ask about any breach of the law," said Younis Arab, a
lawyer who has represented a CIA prisoner brought to Jordan. "Here in Jordan,
nobody asks. So the Americans get the Jordanians to do the dirty work."

Other Jordanian lawyers cited unconfirmed reports that the CIA had transferred
high-ranking al-Qaeda leaders to Jordan for interrogation. Although hard
evidence is elusive, some former inmates have reported being detained in the
same wing as Ramzi Binalshibh, a key planner in the Hamburg cell that carried
out the Sept. 11 hijackings, said Abdulkareem al-Shureidah, an Amman lawyer.

"He was detained in Jordanian jails, definitely," Shureidah said of Binalshibh,
who was kept in CIA custody in undisclosed locations from the time of his
capture in Karachi in September 2002 until September 2006, when he was
transferred to Guantanamo. "The U.S. brought all kinds of persons here from
around the world."

Samieh Khreis, an Amman lawyer who has represented former Guantanamo inmates
from Jordan, said testimony by former prisoners and others in Jordan reinforced
a long-held suspicion that the CIA ran a satellite operation inside headquarters
of the General Intelligence Department.

"Of course they had a jail here, a secret jail -- of course, no question," he
said. "If they were to put me in that GID building over there, in my mind, it
might as well be an American jail."

Khreis said the Jordanian spy service has a well-deserved reputation for using
dubious tactics to force confessions. But he said the CIA sent prisoners to
Amman primarily to take advantage of the GID's knowledge of Islamic radical
groups.

"Torture is not the main reason," he said.

A FLAT DENIAL

On June 26, 2006, just after 6 p.m., Nowak, the U.N. investigator, paid a
surprise visit to GID headquarters in Amman.

The Jordanian government had previously agreed to give Nowak carte blanche to
inspect any prison in the country, with no preconditions and unfettered access
to inmates. As a new member of the U.N. Human Rights Council, Jordan was eager
to win Nowak's seal of approval. GID officials permitted Nowak to tour its
prison wing. But they refused to allow him to speak with prisoners in private.
When Nowak asked about allegations that the CIA had used the building as a proxy
jail, department officials said the reports were untrue.

"The response was just very flat, a simple denial, 'We don't know anything about
that,' " Nowak recalled in an interview.

In interviews with former GID prisoners, Nowak said, he heard repeated, credible
reports of inmates being subjected to electric shocks, sleep deprivation and
various forms of beatings, including farruj and falaqa.

He said several inmates reported that their chief tormentor was Col. Ali Birjak,
head of the GID's counterterrorism unit and one of the officials who had denied
cooperating with the CIA. Based on those interviews, Nowak recommended in his
report that Birjak be investigated by Jordanian authorities on torture charges.

In a written response to Nowak's findings on Oct. 10, 2006, the Jordanian
government called the torture allegations "untrue" and noted that they were
lodged by people with criminal records.

"It is common for prisoners to make false allegations about torture in a
pathetic attempt to evade punishment and to influence the court," the government
wrote.

In interviews with The Washington Post, however, former prisoners of the GID
gave similar accounts of physical abuse.

Masaad Omer Behari, a Sudanese citizen, spent 86 days in the department's
custody in early 2003 after he was arrested during a stopover at Amman's
international airport.

Behari said his interrogators wanted to know about his activities in Vienna,
where he had lived for more than a decade. He had been asked many of the same
questions previously by the FBI and Austrian security officials about an alleged
plot to bomb the U.S. Embassy in Vienna in 1998, he said, though he had denied
any role and was never charged.

While he was in custody in Amman, Behari said, guards meted out a combination of
falaqa and farruj. They struck the soles of his feet with batons while he was
handcuffed and hanging upside down, then doused him with cold water and forced
him to walk over a salt-strewn floor.

"I thought they were going to kill me," he said. "I said my prayers, thinking I
was going to die."

[ Researcher Julie Tate in Washington contributed to this report. ]

*


The Daily Star --

November 30, 2007

OUT OF GUANTANAMO, AND INTO THE FIRE

By Andy Worthington

http://www.dailystar.com.lb/article.asp?edition_id=1&categ_id=5&article_id=87113

The recent conviction, in a Tunisian court, of former Guantanamo detainee
Abdullah bin Omar undermines claims by the Bush administration that it has found
adequate ways of repatriating wrongly arrested detainees to their home
countries. A former railway engineer, bin Omar, who is 51, left Tunisia because
of religious persecution in 1989. Taking his wife and children with him, he
moved to Pakistan, where he was seized at his home by Pakistani police in May
2002. He later claimed, as did numerous other detainees, that, as a result of
bounty payments offered by the Americans for Al-Qaeda or Taliban suspects, he
was sold to US forces for $5,000.

Held for five years without charge or trial in Guantanamo, bin Omar was accused
of traveling to Pakistan "under Osama bin Laden's protection," of running a
guest house for fighters in Afghanistan, and of having various connections with
Al-Qaeda. He maintained, however, that he had never even visited Afghanistan,
and had not been "a member of any type of group or organization while he lived
in Pakistan." The allegations had evidently evaporated by early 2007, when he
was cleared for release by a military review board.

In June, his lawyers at Reprieve, a London-based legal charity that represents
dozens of Guantanamo detainees, discovered that in 1995 he had been convicted in
absentia by a Tunisian court and given a 10-year sentence for belonging to Al-
Nahda, a moderate, non-violent Islamist political party, which has never been
recognized by the regime of President Zine al-Abidine Ben Ali. Before they could
meet with him to reveal this information, however, he and another cleared
Tunisian, Lotfi Lagha, were flown to Tunis, where they were promptly imprisoned.

Although both men were granted access to lawyers, they reported that they had
been beaten and held in solitary confinement. Bin Omar reported that he was told
that if he did not confess to crimes - crimes he had not committed - his wife
and daughters would be raped. Last month, the Tunisian authorities further
antagonized their critics by subjecting Lagha to what looked suspiciously like a
show trial. Previous claims that he received military training in Afghanistan
and fought with the Taliban were dropped and he was, instead, convicted of
"associating with a criminal group with the aim of harming or causing damage in
Tunisia." He was sentenced to three years in prison, even though the authorities
did not name the group or provide any details about the alleged plot.

Bin Omar's trial was no better. He was convicted of "belonging in times of peace
to a terrorist organization operating in a foreign country," of preparing for
attacks intended to "change the state through violence," and of wanting to
replace the government with a "fundamentalist regime." Bin Omar received a
seven-year sentence. One of his lawyers, Zachary Katznelson, who was present at
the trial, told me, "There was not a shred of evidence actually offered against
him. No witnesses, no documents, nothing. Merely a statement from the
intelligence services saying he was guilty. Accusation presented as fact." He
added that this was "all too familiar in the context of Guantanamo," but that it
was "horrible to see the consequences pronounced before my eyes."

What makes these reports of rigged trials and abuse in custody so disturbing is
that, after the Pentagon had cleared these men, they were supposed to have been
guaranteed fair and humane treatment, under the terms of "diplomatic assurances"
agreed between the American and Tunisian governments. These were required if the
US administration was to avoid international censure for breaking international
laws preventing the return of foreign nationals to countries where they face the
risk of torture or ill-treatment.

The rationale for coming up with these "assurances" is shocking, but simple to
understand. Attempts to empty Guantanamo of cleared detainees are hampered by
the fact that as many as 70 men - mostly from China and various North African
countries - do not want to return to the countries of their birth. Unable to
find other countries to accept them, and unwilling to grant them asylum, the
United States has seen the "diplomatic assurances" as a convenient way to break
the deadlock.

The trials in Tunisia suggest, however, that the strategy is not working. Last
month, in an unprecedented decision in a US District Court, Judge Gladys Kessler
ruled that another cleared Tunisian, Mohammad Abdul Rahman, "cannot be sent to
Tunisia because he could suffer 'irreparable harm' that the US courts would be
powerless to reverse." It remains to be seen whether Kessler's ruling will
impact on other detainees, further derailing the integrity of the "diplomatic
assurances."

Two other cleared detainees who do not want to return home - the Libyan Abdul
Rauf al-Qassem and the Algerian (and British resident) Ahmed Belbacha - have not
been granted such protection. They have not yet been repatriated from
Guantanamo, and attempts by the British government to replicate the Americans'
underhanded behavior with its own alleged terror suspects - held without charge
or trial and subjected to "control orders" that amount to virtual house arrest -
have also suffered legal setbacks. Although some have been repatriated to
Algeria, two appeals courts ruled this year that two Libyans and three Algerians
cannot be returned because they are at risk of torture. This demonstrated that
the British government's "memoranda of understanding" with Libya and Algeria
were as worthless as the Americans' "diplomatic assurances" with Tunisia.

These legal struggles come too late for Lotfi Lagha and Abdullah bin Omar, who,
as Zachary Katznelson explained, seem to have been used as "guinea pigs in a
potentially deadly diplomatic experiment." However, they reveal that, after
nearly six years, it is far more difficult to close down Guantanamo prison than
it was to set it up in the first place.

[ Andy Worthington is a journalist and historian based in London. He is the
author of "The Guantanamo Files: The Stories of the 774 Detainees in America's
Illegal Prison," recently published by Pluto Press. He wrote this commentary for
THE DAILY STAR. ]

*


The Times (UK) --

November 25, 2007

FLIGHT LOGS REVEAL SECRET RENDITION

by Stephen Grey

http://www.timesonline.co.uk/tol/news/world/europe/article2936782.ece

The secret flight plans of American military planes have revealed for the first
time how European countries helped send prisoners, including British citizens,
to the Guantanamo Bay prison camp.

Despite widespread criticism of alleged human rights abuses and torture at the
US base in Cuba, a Sunday Times investigation has shown that at least five
European countries gave the United States permission to fly nearly 700 terrorist
suspects across their territory.

Three years ago, The Sunday Times published flight logs of CIA civilian jets in
Europe, setting off a controversy over the whether countries across the
continent have been secretly involved in America's rendition of terrorist
suspects to countries that carry out torture.

The row is now set to be reignited. Inquiries by Ana Gomes, a Portuguese member
of the European parliament, have uncovered not only more CIA flight logs but
also more sensitive military flight plans, which until now have remained a
closely guarded secret.

The logs show how most prisoners changed planes at a Turkish military airbase
and flew across Greek, Italian and Portuguese airspace. Others reached Cuba
after touching down in Spain, whose governing socialist party once expressed
indignation at conditions in Guantanamo.

The flight logs show that three Britons -- Shafiq Rasul, Jamal Udeen and Asif
Iqbal -- were flown across Europe to Cuba on January 14, 2002. Moazzam Begg,
another Briton, was taken by the same route to Guantanamo on February 2, 2003;
and Binyam Mohamed, a British resident whose release the British government is
now trying to negotiate, arrived in Cuba after crossing Europe in a special
flight in September 2004.

According to the flight plans, the first 23 prisoners to arrive at Guantanamo --
including another British citizen, Feroz Abbasi, then 21, and an Australian,
David Hicks -- had arrived at the American naval base in Cuba after flying from
the Moron airbase in Spain.

Abbasi has claimed in a statement that prisoners were abused within hours of
arriving. "We were made to sit on our heels, one foot over the other, supported
by one foot's toes alone, for hours. Some of us were old, weak, fatigued, and
injured -- they were the ones to drop first in the searing Caribbean heat."

Described by the Pentagon as the "worst of the worst" from Al-Qaeda and the
Taliban, the images of prisoners such as Abbasi dressed in orange jumpsuits,
their heads shaved and shackled by their wrists and ankles, shocked the world.
Within a day, Donald Rumsfeld, then US defence secretary, announced that the
Geneva conventions would not apply to what were now called "enemy combatants".

Last week, Europe's leading watchdog on human rights alleged that European
countries had breached the international convention against torture by giving
the US secret permission to use its airspace.

Thomas Hammarberg, the Council of Europe's commissioner for human rights, said:
"What happened at Guantanamo was torture and it is illegal to provide facilities
or anything to make this torture possible. Under the law, European governments
should have intervened and should not have given permission to let these flights
happen."

Gomes added: "It's clear to me that Guantanamo could not have been created
without the involvement of European countries."

Methods used at Guantanamo Bay, condemned by Britain's Court of Appeal as a
legal "black hole" and as a "monstrous failure of justice" by one law lord, have
included the prolonged use of isolation, sleep deprivation, and use of stress
positions. "These are methods that have been declared as unlawful by the
European Court of Human Rights," Hammarberg said.

The military flight plans show that all key flights arriving in Guantanamo had
come across European airspace either through Spain or the Incirlik airbase in
southeastern Turkey. The Sunday Times compared the military flight plans against
a database compiled by Reprieve, the British-based charity that represents
Guantanamo prisoners, of when prisoners first weighed in at the camp.

The investigation, cross-checked against other Pentagon documents, shows for the
first time which prisoner arrived on which flight at Guantanamo, and by what
route. At least 170 other prisoners flew over Spanish territory, more than 700
crossed Portuguese space, and more than 680 were transshipped at Incirlik. Most
flights also crossed Greek and Italian airspace, according to a source in
European air traffic control.

On February 2 2003, for example, a US Air Force C-17 Globemaster plane took off
from Incirlik with 27 prisoners on board for Cuba. The same day, prisoner number
558 weighed in at 136lb (62kg) at the camp. He can be named as Moazzam Begg, now
39, from Birmingham, who was released in January 2005, and has never been
charged with a crime.

Interviewed by phone last week, Begg recalled: "Inside the plane there was a
chain around our waist, and it connected to cuffs around my wrists, which were
tied in the back, and to my ankles. We were seated but it was so painful not
being able to speak, to hear, to breathe properly, to look, to turn left or
right, to move your hands, stretch your legs, or anything." At the time flights
were landing in Spain and crossing Spanish airspace, socialist leaders there
were expressing "indignation" over conditions in Guantanamo. Now the socialists
are in government after winning an election in March 2004 just after the Madrid
train bombings and they are being asked to defend Spain's continued
collaboration with American operations. Under international law, government and
military planes can cross another country's territory only with diplomatic
permission.

In a statement to the European parliament on the visits of CIA planes to Spain,
the foreign minister Miguel Angel Moratinos has testified: "Our territory may
have been used not to commit crimes on it, but as a stopover on the way to
committing crime in another country."

Spain, it has now emerged, had a specific agreement with the US to allow flights
and visits to Spanish airbases for American planes.

In Portugal, the foreign minister Luis Amado has said flights across his
country's airspace took place "under the aegis of the UN and NATO and that
Portugal naturally follows the principle of good faith in the relations with its
allies". NATO's role in Guantanamo stems from a secret agreement made in
Brussels on October 4 2001 by all NATO members, including Britain. Although
never made public, Lord Robertson, the former British defence secretary who was
later NATO's secretary-general, explained that day that NATO had agreed to
provide "blanket overflight clearances for the United States and other allies'
aircraft for military flights related to operations against terrorism".

Today, NATO is more coy about its role in helping send prisoners to Guantanamo.

In a letter to Gomes, Jaap de Hoop Scheffer, the current secretary-general, said
no NATO planes had "flown to or from Guantanamo Bay" and that NATO "as an
organisation has no involvement or co-ordinating role in providing clearance or
overflight rights for other flights". Turkey, meanwhile, has declared that its
agencies had "reached no findings regarding any unacknowledged deprivation of
liberty conducted by foreign agencies within the territory of the republic of
Turkey or any transport by aircraft or otherwise of the persons deprived of
their liberty".

In London, Clive Stafford Smith, legal director of Reprieve, said, with America
threatening that Guantanamo prisoners faced the death penalty, European
governments had made "pious statements" that they would never send prisoners to
the US without obtaining assurances they would not be executed.

Stafford Smith added: "Some European governments, it's now clear, systematically
assisted in clandestine flights and illegal prisoner transfers to Guantanamo
Bay. We need a full investigation and Europeans need to face their
responsibility for these crimes."

See flight logs and complete list of prisoners at www.ghostplane.net

[ Additional reporting: Natalia Viana ]

*


New York Times --

November 21, 2007

Wiretap Issue Leads Judge to Warn of Retrial in Terror Case

By Eric Lichtblau

http://www.nytimes.com/2007/11/21/washington/21nsa.html

WASHINGTON, Nov. 20 -- A federal judge warned Tuesday that if the government did
not allow lawyers to review classified material on possible wiretapping of an
Islamic scholar convicted of inciting terrorism, she might order a new trial for
him.

The unexpected development is the latest legal complication involving the
National Security Agency's wiretapping program, which has produced challenges
from criminal defendants as well as civil lawsuits against the government and
phone carriers.

Lawyers for Ali al-Timimi, an Islamic scholar in Northern Virginia sentenced to
life in prison in 2005 for inciting his followers to commit acts of terrorism,
maintain that he may have been illegally wiretapped by the agency as part of its
program of eavesdropping without warrants that was approved by President Bush
soon after the Sept. 11 attacks.

In April 2006, four months after the NSA program was publicly disclosed, an
appellate court directed the trial judge in Mr. Timimi's case to reconsider it
in light of his lawyers' accusations.

But the issue has been bogged down in court for 18 months, with intelligence
officials making a series of classified appearances before the judge, Leonie M.
Brinkema, to explain the government's position. Lawyers for Mr. Timimi and even
the trial prosecutors have not been allowed to hear the closed-door discussions.

Jonathan Turley, the lead appellate lawyer for Mr. Timimi, said the defense's
lack of access to crucial evidence had made it hard to litigate the case. "We're
shadowboxing in the courtroom with unnamed officials at unnamed agencies," Mr.
Turley said in a telephone interview.

On Tuesday, at an open hearing in her courtroom in Alexandria, Va., Judge
Brinkema appeared to be out of patience as well, lawyers there said. The judge,
who also handled the terrorism trial that resulted in a life sentence for
Zacarias Moussaoui, expressed frustration over the recent disclosure that the
government had misled her at the Moussaoui trial by denying the existence of any
tape recording of high-value Qaeda detainees. In a Nov. 9 filing with the court,
the government acknowledged that three such tapes did exist but said the
prosecutors at the Moussaoui trial had not known of them.

Judge Brinkema told federal prosecutors at the Timimi hearing that she wanted
the government to find a way to give trial prosecutors, defense lawyers and her
own clerk the clearance to review classified material in the case. That could
require the direct intervention of the White House, since Mr. Bush has
personally handled decisions on issuing clearances for the NSA eavesdropping
program.

William Olson, another lawyer for Mr. Timimi at the hearing, said the judge's
tone of frustration indicated "that the situation we've been operating under has
to change." And she made clear, Mr. Olson and others at the hearing said, that
she was prepared to order a new trial for Mr. Timimi if the problem was not
resolved.

Judge Brinkema appeared mindful of the problems in the Moussaoui case when,
issuing a written ruling hours after Tuesday's hearing, she said she wanted a
trial prosecutor in the Timimi matter to receive the needed clearances and
review the classified submissions to the court "so he can be assured that his
representations to the court are accurate."

The Justice Department declined comment on the day's developments.

Mr. Timimi's lawyers are trying to show that the government conducted numerous
wiretaps of his international communications without disclosing them to the
judge or the defense lawyers, as required.

The government acknowledged at Mr. Timimi's trial that it had conducted a small
number of wiretaps on him through customary court warrants. But Mr. Turley said
the defense had also identified what it describes as a 17-month period after the
Sept. 11 attacks when it suspects numerous other calls were tapped.

*


New York Times --

November 7, 2007

A FIRSTHAND EXPERIENCE BEFORE DECISION ON TORTURE

by Scott Shane

http://www.nytimes.com/2007/11/07/us/07waterboard.html?_r=1&ref=us&oref=slogin

WASHINGTON, Nov. 6 -- The debate over torture here can get heated, as it did
this month when a dispute over the legal status of waterboarding threatened to
sink the nomination of Michael B. Mukasey as attorney general. Still, it usually
remains a matter of strictly abstract legal analysis.

But three years ago, Daniel Levin, then the acting head of the Office of Legal
Counsel at the Justice Department, decided to bring reality to bear on his
deliberations on the torture question. He went to a military base and asked to
undergo waterboarding.

Mr. Levin, 51, a graduate of Harvard and the University of Chicago Law School,
had served in several senior posts at the Federal Bureau of Investigation and
the Justice Department since the administration of the first President Bush. But
he had never served in the military, where American pilots, special operations
troops and others for decades have undergone waterboarding to prepare them for
possible treatment if captured by an enemy.

Waterboarding has been used in interrogations at least since the Spanish
Inquisition and was used by the Central Intelligence Agency on three high-level
terrorism suspects in 2002 and 2003, according to officials familiar with the
agency's secret detention program. It involves strapping a suspect to a board
with feet elevated, covering his face with a cloth and pouring water on it to
produce a feeling of suffocation.

Mr. Levin, now a partner with White & Case, declined to comment on the
experience, which was first reported Friday by ABC News. A former senior
administration official confirmed on Tuesday that it took place.

After his waterboarding, Mr. Levin went on to sign a new legal opinion on the
limits of interrogation, released on Dec. 30, 2004, that made news with its
ringing opening sentence: "Torture is abhorrent both to American law and values
and to international norms." That memorandum replaced a much-criticized opinion
written in August 2002, which had defined torture as treatment producing pain
equivalent to organ failure or death and had suggested that a president might be
able to authorize torture under his constitutional war powers.

A footnote to the 2004 interrogation opinion signed by Mr. Levin, insisted on by
the White House and the CIA, said that despite the shift in legal reasoning,
interrogation techniques authorized under previous Justice Department opinions
remained legal. Those techniques included waterboarding.

Mr. Levin became the acting head of the Office of Legal Counsel in June 2004,
after the departure of Jack Goldsmith, who had withdrawn the 2002 memorandum on
torture and provoked a separate crisis by finding flaws in the legal
justification for the National Security Agency's domestic surveillance program.
After writing the opinion denouncing torture, Mr. Levin, who had supported Mr.
Goldsmith's actions, was told by Alberto R. Gonzales, the incoming attorney
general, that he would not be nominated to lead the Office of Legal Counsel.

Instead, Mr. Levin took a job as legal adviser at the National Security Council.
He was replaced at the Justice Department by Steven G. Bradbury, who signed a
series of new legal opinions in 2005 justifying harsh interrogation methods,
including waterboarding, The New York Times reported last month.

In court papers filed Monday in New York, the Justice Department confirmed that
the Office of Legal Counsel had issued three legal opinions on detention and
interrogation to the CIA in May 2005. The filing does not describe the contents
of the opinions, which are being sought in a Freedom of Information Act lawsuit
filed by the American Civil Liberties Union.

*


Washington Post --

November 4, 2007

WATERBOARDING USED TO BE A CRIME

by Evan Wallach

http://www.washingtonpost.com/wp-dyn/content/
article/2007/11/02/AR2007110201170.html

As a JAG in the Nevada National Guard, I used to lecture the soldiers of the
72nd Military Police Company every year about their legal obligations when they
guarded prisoners. I'd always conclude by saying, "I know you won't remember
everything I told you today, but just remember what your mom told you: Do unto
others as you would have others do unto you." That's a pretty good standard for
life and for the law, and even though I left the unit in 1995, I like to think
that some of my teaching had carried over when the 72nd refused to participate
in misconduct at Iraq's Abu Ghraib prison.

Sometimes, though, the questions we face about detainees and interrogation get
more specific. One such set of questions relates to "waterboarding."

That term is used to describe several interrogation techniques. The victim may
be immersed in water, have water forced into the nose and mouth, or have water
poured onto material placed over the face so that the liquid is inhaled or
swallowed. The media usually characterize the practice as "simulated drowning."
That's incorrect. To be effective, waterboarding is usually real drowning that
simulates death. That is, the victim experiences the sensations of drowning:
struggle, panic, breath-holding, swallowing, vomiting, taking water into the
lungs and, eventually, the same feeling of not being able to breathe that one
experiences after being punched in the gut. The main difference is that the
drowning process is halted. According to those who have studied waterboarding's
effects, it can cause severe psychological trauma, such as panic attacks, for
years.

The United States knows quite a bit about waterboarding. The U.S. government --
whether acting alone before domestic courts, commissions and courts-martial or
as part of the world community -- has not only condemned the use of water
torture but has severely punished those who applied it.

After World War II, we convicted several Japanese soldiers for waterboarding
American and Allied prisoners of war. At the trial of his captors, then-Lt.
Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the
Doolittle Raid and was captured by the Japanese, testified: "I was given several
types of torture. . . . I was given what they call the water cure." He was asked
what he felt when the Japanese soldiers poured the water. "Well, I felt more or
less like I was drowning," he replied, "just gasping between life and death."

Nielsen's experience was not unique. Nor was the prosecution of his captors.
After Japan surrendered, the United States organized and participated in the
International Military Tribunal for the Far East, generally called the Tokyo War
Crimes Trials. Leading members of Japan's military and government elite were
charged, among their many other crimes, with torturing Allied military personnel
and civilians. The principal proof upon which their torture convictions were
based was conduct that we would now call waterboarding.

In this case from the tribunal's records, the victim was a prisoner in the
Japanese-occupied Dutch East Indies:

    "A towel was fixed under the chin and down over the face. Then many buckets
    of water were poured into the towel so that the water gradually reached the
    mouth and rising further eventually also the nostrils, which resulted in his
    becoming unconscious and collapsing like a person drowned. This procedure
    was sometimes repeated 5-6 times in succession."

The United States (like Britain, Australia and other Allies) pursued lower-
ranking Japanese war criminals in trials before their own tribunals. As a
general rule, the testimony was similar to Nielsen's. Consider this account from
a Filipino waterboarding victim:

    Q: Was it painful?

    A: Not so painful, but one becomes unconscious. Like drowning in the water.

    Q: Like you were drowning?

    A: Drowning -- you could hardly breathe.

Here's the testimony of two Americans imprisoned by the Japanese:

    "They would lash me to a stretcher then prop me up against a table with my
    head down. They would then pour about two gallons of water from a pitcher
    into my nose and mouth until I lost consciousness."

And from the second prisoner:

    "They laid me out on a stretcher and strapped me on. The stretcher was then
    stood on end with my head almost touching the floor and my feet in the air.
    . . . They then began pouring water over my face and at times it was almost
    impossible for me to breathe without sucking in water."

As a result of such accounts, a number of Japanese prison-camp officers and
guards were convicted of torture that clearly violated the laws of war. They
were not the only defendants convicted in such cases. As far back as the U.S.
occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers
were court-martialed for using the "water cure" to question Filipino guerrillas.

More recently, waterboarding cases have appeared in U.S. district courts. One
was a civil action brought by several Filipinos seeking damages against the
estate of former Philippine president Ferdinand Marcos. The plaintiffs claimed
they had been subjected to torture, including water torture. The court awarded
$766 million in damages, noting in its findings that "the plaintiffs experienced
human rights violations including, but not limited to . . . the water cure,
where a cloth was placed over the detainee's mouth and nose, and water producing
a drowning sensation."

In 1983, federal prosecutors charged a Texas sheriff and three of his deputies
with violating prisoners' civil rights by forcing confessions. The complaint
alleged that the officers conspired to "subject prisoners to a suffocating water
torture ordeal in order to coerce confessions. This generally included the
placement of a towel over the nose and mouth of the prisoner and the pouring of
water in the towel until the prisoner began to move, jerk, or otherwise indicate
that he was suffocating and/or drowning."

The four defendants were convicted, and the sheriff was sentenced to 10 years in
prison.

We know that U.S. military tribunals and U.S. judges have examined certain types
of water-based interrogation and found that they constituted torture. That's a
lesson worth learning. The study of law is, after all, largely the study of
history. The law of war is no different. This history should be of value to
those who seek to understand what the law is -- as well as what it ought to be.

[ Evan Wallach, a judge at the U.S. Court of International Trade in New York,
teaches the law of war as an adjunct professor at Brooklyn Law School and New
York Law School. ]

*


ABC News --

November 2, 2007

BUSH ADMINISTRATION BLOCKED WATERBOARDING CRITIC
Former DOJ Official Tested the Method Himself, in Effort to Form Torture Policy

By Jan Crawford Greenburg and Ariane de Vogue

http://abcnews.go.com/WN/DOJ/story?id=3814076&page=1

A senior Justice Department official, charged with reworking the
administration's legal position on torture in 2004 became so concerned about the
controversial interrogation technique of waterboarding that he decided to
experience it firsthand, sources told ABC News.

Daniel Levin, then acting assistant attorney general, went to a military base
near Washington and underwent the procedure to inform his analysis of different
interrogation techniques.

After the experience, Levin told White House officials that even though he knew
he wouldn't die, he found the experience terrifying and thought that it clearly
simulated drowning.

Levin, who refused to comment for this story, concluded waterboarding could be
illegal torture unless performed in a highly limited way and with close
supervision. And, sources told ABC News, he believed the Bush Administration had
failed to offer clear guidelines for its use.

BUSH ADMINISTRATION BLOCKED CRITIC

The administration at the time was reeling from an August 2002 memo by Jay
Bybee, then the head of the Office of Legal Counsel, which laid out possible
justifications for torture. In June 2004, Levin's predecessor at the office,
Jack Goldsmith, officially withdrew the Bybee memo, finding it deeply flawed.

When Levin took over from Goldsmith, he went to work on a memo that would
effectively replace the Bybee memo as the administration's legal position on
torture. It was during this time that he underwent waterboarding.

In December 2004, Levin released the new memo. He said, "Torture is abhorrent"
but he went on to say in a footnote that the memo was not declaring the
administration's previous opinions illegal. The White House, with Alberto
Gonzales as the White House counsel, insisted that this footnote be included in
the memo.

But Levin never finished a second memo imposing tighter controls on the specific
interrogation techniques. Sources said he was forced out of the Justice
Department when Gonzales became attorney general.

CRITICS DECRY WATERBOARDING AS TORTURE

Critics say waterboarding should never be used.

According to retired Rear Adm. John Hutson, "There is no question this is
torture -- this is a technique by which an individual is strapped to a board,
elevated by his feet and either dunked into water or water poured over his face
over a towel or a blanket."

The legal justification of waterboarding has come to the forefront in the debate
swirling around Michael B. Mukasey's nomination for attorney general.

While Democrats are pressing him to declare waterboarding illegal, he has
refused to do so. He calls it personally "repugnant," but he is unwilling to
declare it illegal until he can see the classified information regarding the
technique and its current use.

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