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NEWS DIGEST 2008.01.01 - 2008.02.07
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Washington Post / AP --

February 7, 2008

US ADMIRAL CONFIRMS SECRET CAMP AT GITMO

by Andrew O. Selsky

http://www.washingtonpost.com/wp-dyn/content/
article/2008/02/07/AR2008020700317.html

GUANTANAMO BAY NAVAL BASE, Cuba -- Somewhere amid the cactus-studded hills on
this sprawling Navy base, separate from the cells where hundreds of men
suspected of links to al-Qaida and the Taliban have been locked up for years, is
a place even more closely guarded -- a jailhouse so protected that its very
location is top secret.

For the first time, the top commander of detention operations at Guantanamo has
confirmed the existence of the mysterious Camp 7. In an interview with The
Associated Press, Rear Adm. Mark Buzby also provided a few details about the
maximum-security lockup.

Guantanamo commanders said Camp 7 is for key alleged al-Qaida members, who must
be kept apart from other prisoners to prevent them from retaliating against
long-term detainees who have talked to interrogators. They also want the
location kept secret for fear of terrorist attack.

Many operations have been classified since the detention center opened in
January 2002 in the wake of the Sept. 11 attacks on the World Trade Center and
the Pentagon. More than four years passed before the military released even the
names of detainees held on this 45-square-mile base in southeast Cuba -- and it
did so only after the AP filed a Freedom of Information Act request.

Detainees have been held in Camp Echo and Camps 1, 2, 3, 4, 5 and 6. Journalists
cleared by the military have been allowed to tour some of these lockups, where
260 men are held, but aren't allowed to speak to detainees. Some lawmakers and
other VIPs have passed through, and the International Red Cross has access, but
doesn't divulge details of visits with prisoners.

Camp 7, where 15 "high-value detainees" are held, is so secret that its very
existence was not publicly known until it was mentioned in December by attorneys
for Majid Khan, a former Baltimore resident who allegedly plotted to bomb gas
stations in the United States. Previously, many observers believed the 15 were
being held in Camps 5 or 6, which are maximum-security facilities.

"Under the gag order ... we are prohibited from saying anything more about their
camp," lawyer Gitanjali Gutierrez, who met with Khan in October, said Tuesday.
Most of the lawyers' notes and memos have been stamped "top secret" by the
government.

Buzby told the AP he is sharply limiting to a "very few" the number of people
who know Camp 7's whereabouts.

He described it as a maximum security facility that was already built when
President Bush announced in September 2006 that 14 high-value terrorism suspects
had been transferred from CIA secret detention facilities to Guantanamo. An
additional detainee, Abd al-Hadi al-Iraqi, arrived last April.

"They went straight into that facility," Buzby said.

Buzby, who heads all military detention operations on Guantanamo, said he
controls Camp 7, but would not discuss whether the CIA might still be talking
with the high-value detainees.

Paul Rester, the military's chief interrogator at Guantanamo, told AP he has
been interviewing one of the Camp 7 detainees and that others may be
interrogated, depending on intelligence needs.

But other key military commanders on the base have been told to leave Camp 7 to
others.

"Not everybody, even within the Joint Task Force, has access or even knowledge
of where Camp 7 is," said Army Col. Bruce Vargo. As commander of the military's
Joint Detention Group at Guantanamo, Vargo is responsible for the camps holding
260 detainees. But not for Camp 7.

Red Cross representatives have visited Camp 7 and all the other detention
facilities at Guantanamo, confirmed Geoff Loane, head of the humanitarian
organization's delegation in Washington. He declined to give details.

Buzby said the 15 are kept isolated in part to protect other prisoners.
"Detainees have told us a lot of things about this group of people, and if there
were potential for retribution it would be a very, very dangerous situation," he
said.

For his part, Vargo said he is preoccupied by the possibility of an al-Qaida
attack on Guantanamo.

"Although we are trying to be open, security is paramount," he said. "I mean, if
you can fly a plane into the towers, you can attack Guantanamo if that's what
you choose to do. It's something I think about on a day-to-day basis."

Vargo declined to discuss whether the U.S. has received information that al-
Qaida may be planning such an attack. "We have intelligence reports, but I don't
want to release what we know for obvious reasons," he said.

While some military personnel have reportedly grumbled about being kept out of
the loop, others don't mind.

Army Col. Larry James, whose team of psychologists assists interrogators, said
he does not want to know where Camp 7 is.

"I learned a long, long time ago, if I'm going to be successful in the intel
community, I'm meticulously -- in a very, very dedicated way -- going to stay in
my lane," he said. "So if I don't have a specific need to know about something,
I don't want to know about it. I don't ask about it."

*


New York Times --

February 7, 2008

CIA DESTROYED TAPES AS JUDGE SOUGHT INTERROGATION DATA

by Mark Mazzetti and Scott Shane

http://www.nytimes.com/2008/02/07/washington/07intel.html

WASHINGTON -- At the time that the Central Intelligence Agency destroyed
videotapes of the interrogations of operatives of Al Qaeda, a federal judge was
still seeking information from Bush administration lawyers about the
interrogation of one of those operatives, Abu Zubaydah, according to court
documents made public on Wednesday.

The court documents, filed in the case of Zacarias Moussaoui, appear to
contradict a statement last December by Gen. Michael V. Hayden, the CIA
director, that when the tapes were destroyed in November 2005 they had no
relevance to any court proceeding, including Mr. Moussaoui's criminal trial.

It was already known that the judge in the case, Leonie M. Brinkema, had not
been told about the existence or destruction of the videos. But the newly
disclosed court documents, which had been classified as secret, showed the judge
had still been actively seeking information about Mr. Zubaydah's interrogation
as late as Nov. 29, 2005.

The destruction of the tapes is under investigation by the Justice Department
and Congress.

One of the documents, a motion filed by Mr. Moussaoui's lawyers to the United
States Court of Appeals for the Fourth Circuit, cites several instances in 2005,
including one after the videotapes were apparently destroyed, when government
lawyers produced documents to the court that came from the interrogation of Abu
Zubaydah.

The document states that on Nov. 29, 2005, government lawyers produced
documents, including "intelligence summaries," about Abu Zubaydah but never told
the court about the existence or destruction of the tapes.

A response that was filed to the appeals court by federal prosecutors remains
classified, government officials said. Mr. Moussaoui was convicted of terrorism-
related charges in 2006, and the government officials said that last month an
appellate judge had denied a motion by his lawyers, who argued that the
destruction of the CIA tapes meant the Moussaoui case should be sent back to a
district court.

The tapes destroyed by the CIA documented the interrogation of Mr. Zubaydah and
a second Qaeda operative, Abd al-Rahim al-Nashiri, according to current and
former intelligence officials.

After The New York Times notified CIA officials in December that it intended to
publish an article about the destruction of the tapes, General Hayden issued a
statement to employees.

In it, General Hayden said he understood that the tapes were destroyed "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."

Paul Gimigliano, a CIA spokesman, said Wednesday: "The rulings in this case are
clear, and the director stands by his statement. Nothing has changed." A Justice
Department spokesman, Dean Boyd, said he could not comment on the unsealed
documents.

It is unclear whether the CIA notified federal prosecutors in the Moussaoui case
about the existence and destruction of the tapes before the matter became
public. But one of the documents released Wednesday, a letter from Chuck
Rosenberg, United States attorney for the Eastern District of Virginia, said a
prosecutor in the Moussaoui case "may have been told in late February or early
March 2006" about the Abu Zubaydah videotapes, but "does not recall being told
this information."

The papers made public on Wednesday were filed in the appeal of Mr. Moussaoui,
who was sentenced to life in prison by Judge Brinkema, of the Eastern District
of Virginia, in May 2006. The documents were filed in December under seal and
made public this week with some redactions.

Mr. Moussaoui attended a flight school in Oklahoma in 2001 but was arrested in
Minnesota on immigration charges before the Sept. 11, 2001, attacks. He admitted
in 2005 to participating in terrorist plotting with Al Qaeda.

The new documents also raised new questions about a letter sent to Judge
Brinkema in October by prosecutors in the Moussaoui case.

In that letter, prosecutors acknowledged that two declarations filed in the case
by CIA officials were inaccurate. The CIA officials had denied the existence of
video or audiotapes of interviews of certain Qaeda suspects, but the letter said
the CIA in fact had two videotapes and one audiotape of interrogations.

Intelligence officials have said the three tapes, which still exist, are
separate from the hundreds of hours of videotape of Abu Zubaydah and Mr. Nashiri
that were destroyed. It is unclear why the October letter did not mention those
tapes or their destruction.

*


2008.02.06 - PEGC Update

CIA Admits Torture / Detainee Cases / Torture / Op-Ed

http://www.pegc.us/_UPDATES_/PEGC_20080206_update.txt

*

Newsweek --

February 6, 2008

THE TRUTH WILL OUT

Bush officials finally come clean about waterboarding.

By Michael Isikoff and Mark Hosenball

http://www.newsweek.com/id/108719

After resolutely refusing for years to say anything on the subject, top Bush
administration officials have made a series of public disclosures about the U.S.
government's use of "waterboarding" against a handful of top Al Qaeda suspects.

The comments, most notably by CIA Director Michael Hayden in Senate testimony
Tuesday, were far from a complete accounting of the government's use of
waterboarding, a practice that most international lawyers and even some
administration officials now concede is tantamount to torture. But Hayden's
public confirmation that the agency had in fact used waterboarding against three
Al Qaeda leaders in 2002 and 2003 -- and then stopped -- was a rare symbolic
victory for officials inside the administration who have argued that the
international furor over its use was badly hurting the United States' image
around the world.

Waterboarding, a practice that dates back to the Spanish Inquisition, involves
strapping a subject to an inclined table and forcing water into his lungs,
typically by pouring it into his mouth and nose. Even Mike McConnell, the
director of National Intelligence, appeared to condemn waterboarding this month
when he told The New Yorker magazine: "If I had water draining into my nose, oh
God, I just can't imagine how painful! Whether it's torture by anybody else's
definition, for me it would be torture." (McConnell this week told a Senate
panel his comments were taken "out of context" and that he meant to be talking
only about his days as a youngster "being a water safety instructor and teaching
people how to swim.")

For months, U.S. officials have internally clashed over what the government
should say about the matter. In little-noticed public comments in Geneva last
November, John Bellinger, the State Department's chief legal adviser, said there
was a "need for greater clarity about what is permitted and what is prohibited"
when it came to interrogation techniques. A lack of clear guidelines, he said,
"makes it more difficult for the United States to reaffirm our commitment to
international law in the world."

But Bellinger's argument that the United States needed to have greater "clarity"
about its interrogation practices ran into a brick wall in the form of Vice
President Dick Cheney and his top aide, David Addington, according to a senior
administration official who asked not to be publicly identified talking about
internal deliberations. (Bellinger and Cheney's office declined comment). In
private debates over the issue, Cheney and Addington insisted that any public
comments about waterboarding at all -- even a simple statement that the U.S.
government no longer uses the technique -- would help Al Qaeda operatives better
prepare to resist U.S. interrogators, according to the official. It would be
more effective for interrogation purposes to preserve "ambiguity" about what
their CIA captors might do to them, the vice president's office contended,
according to this official.

The debate over what to say or not say continued until last week, when Deputy
Secretary of State John Negroponte casually let drop, in an interview with
National Journal, that "waterboarding had not been used in years. It wasn't used
when I was director of national intelligence, nor even for a few years before
that," he said. (Negroponte became the first to hold the newly created DNI post
in 2005 and served in that capacity until January 2007.)

Negroponte's comments, which were seen as confirmation that waterboarding had in
fact been used before that, were not cleared beforehand and caught White House
officials off guard, according to the senior administration official. "It was an
accidental disclosure," said the official. It also forced a reassessment of
whether the administration should at least publicly confirm Negroponte's
remarks, if only to reap whatever public-relations benefit could be derived from
the slip.

It so happened that Attorney General Michael Mukasey was scheduled to be grilled
by the Senate Judiciary Committee a few days later, and Democrats had made no
secret that they planned to hammer him about waterboarding. Mukasey's
confirmation as attorney general was nearly derailed last year over his refusal
to explicitly say the technique was illegal. Mukasey had not intended to go much
further last week. But after Negroponte's comments, his prepared testimony was
revised at the last minute. "I sought and I received authorization to disclose
publicly ... that waterboarding is not among the techniques currently authorized
for use," he said.

Then, this week, Hayden went further. Testifying before the Senate Intelligence
Committee, he at long last publicly put on the record matters that had been
widely reported but never confirmed by the administration. "Let me make it very
clear and to state so officially in front of this committee that waterboarding
has been used on only three detainees," he said. He then listed them: Khalid
Sheikh Mohammed, the alleged mastermind of the September 11 attacks; Abu
Zubaydah, the reputed Al Qaeda logistics chief, and Abal Rahm al-Nashiri, the Al
Qaeda commander in the Persian Gulf.

"The CIA has not used waterboarding for almost five years," Hayden added. "We
used it against three high-value detainees because of the circumstances of the
time." Intelligence agencies believed that additional "catastrophic" attacks
against the United States were "imminent" and the CIA had only "limited
knowledge about Al Qaeda and its workings." Since then, he said, "Those
realities have changed." (A former senior intelligence official who was working
for the government at the time said intelligence officials were petrified that
terrorists had smuggled a nuclear weapon into the United States and were
planning to blow up New York City. The scenario was like a real-life episode of
"24," the official said. Ultimately, the nuclear threat proved bogus.)

White House spokesman Tony Fratto said today that President Bush had directly
authorized Hayden's comments, adding that the decision to allow him to do that
"wasn't taken lightly. There was discussion. There was great concern about
starting to talk about something that we don't ordinarily do ... I cant tell you
it wasn't an easy decision." Hayden also asserted. (In fact, Hayden and other
agency officials have never said waterboarding itself led to useful
intelligence.) But Hayden also seemed to have his own agenda in making the
disclosures -- and defending the CIA's use of the practice. The recent
revelation that the CIA had destroyed videotapes of the interrogations of Abu
Zubaydah and Nashiri have triggered Justice Department and congressional
investigations and put the agency's interrogation methods under new scrutiny.
Hayden wanted to provide some "context" to the waterboarding controversy and
also emphasize that the practice was "lawful" when it was employed by the
agency, a senior intelligence official said. "Nothing was done without prior
legal scrutiny, inside and outside the CIA," the intelligence official said.

But the administration's new openness is not likely to quiet the waterboarding
controversy. No sooner had Hayden made his comments yesterday than Illinois
Democratic Sen. Dick Durbin, who has been among the most vocal critics of the
administration on the issue, fired off a new letter to Mukasey about the matter.
Contending that the United States has "considered waterboarding to be a war
crime for decades," Durbin, pointing to Hayden's comments, asked whether the
attorney general was now prepared to launch a new Justice Department
investigation to determine if any laws were violated. Until he gets an answer to
that and other questions, Durbin said, he will block the confirmation of Mark
Filip -- the federal judge nominated to be Mukasey's successor on the bench.
Asked about the Durbin letter, a Justice spokesman said the department was
"carefully reviewing" it, declining further comment.

*


New York Times --

February 6, 2008

INTELLIGENCE CHIEF CITES QAEDA THREAT TO US

by Mark Mazzetti

http://www.nytimes.com/2008/02/06/washington/06intel.html

WASHINGTON -- Al Qaeda is gaining in strength from its refuge in Pakistan and is
steadily improving its ability to recruit, train and position operatives capable
of carrying out attacks inside the United States, the director of national
intelligence told a Senate panel on Tuesday.

The director, Mike McConnell, told lawmakers that Osama bin Laden and his
deputy, Ayman al-Zawahri, remained in control of the terrorist group and had
promoted a new generation of lieutenants. He said Al Qaeda was also improving
what he called "the last key aspect of its ability to attack the U.S." --
producing militants, including new Western recruits, capable of blending into
American society and attacking domestic targets.

A senior intelligence official said Tuesday evening that the testimony was based
in part on new evidence that Qaeda operatives in Pakistan were training
Westerners, most likely including American citizens, to carry out attacks. The
official said there was no indication as yet that Al Qaeda had succeeded in
getting operatives into the United States.

The testimony, in an annual assessment of the threats facing the United States,
was the latest indication that Al Qaeda appears to have significantly rebuilt a
network battered by the American invasion of Afghanistan after the Sept. 11
attacks.

It follows a National Intelligence Estimate last summer that described a
resurgent Al Qaeda, and could add fuel to criticisms from Democratic lawmakers
and presidential candidates that the White House focus on Iraq since 2002 has
diverted attention and resources from the battle against the Qaeda
organization's core.

In recent weeks, fresh concerns about the threat posed by Al Qaeda have prompted
senior Bush administration officials to travel to Pakistan to seek approval for
more aggressive American military action against militants based in the tribal
areas near the border with Afghanistan.

As part of his testimony to the Senate Intelligence Committee, Gen. Michael V.
Hayden, director of the Central Intelligence Agency, also offered the
government's most extensive public defense for the use of waterboarding, saying
that the CIA had used the harsh interrogation technique against three Qaeda
operatives in 2002 and 2003 in a belief that another terrorist attack on the
United States was imminent. He identified the three as Abu Zubaydah, Abd al-
Rahim al-Nashiri and Khalid Shaikh Mohammed.

General Hayden said the technique, which induces a feeling of drowning, had not
been used since 2003. Mr. McConnell said that a future CIA request to use
waterboarding on a detainee would need to be approved both by Attorney General
Michael B. Mukasey and by President Bush.

The CIA is the only agency permitted under law to use interrogation methods more
aggressive than those used by the American military. Senate Democrats sought to
use the hearing to exploit divisions about those techniques.

Both Robert S. Mueller III, director of the Federal Bureau of Investigation, and
Lt. Gen. Michael D. Maples, director of the Defense Intelligence Agency, told
lawmakers that their agencies had successfully obtained valuable intelligence
from terrorism suspects without using what Mr. Mueller called the "coercive"
methods of the CIA

But General Hayden bristled when asked about Congressional attempts to mandate
that CIA interrogators be required to use the more limited set of interrogation
methods contained in the Army Field Manual, which is used by military
interrogators.

"It would make no more sense to apply the Army's field manual to CIA," General
Hayden said, "than it would to take the Army Field Manual on grooming and apply
it to my agency, or the Army Field Manual on recruiting and apply it to my
agency. Or, for that matter, the Army Field Manual on sexual orientation and
apply it to my agency."

During the testimony, Mr. McConnell tried to recalibrate somewhat the
intelligence agencies' view of Iran's nuclear program, telling senators that the
public portion of a National Intelligence Estimate released in December placed
too much significance on the fact that Iran had halted secret work on nuclear
weapons design in 2003.

Mr. McConnell said that weapons design was "probably the least significant part
of the program" and that Iran's refusal to halt uranium enrichment meant that it
still posed a potential nuclear threat.

The fact that Iran was continuing its enrichment efforts was mentioned in that
intelligence assessment, but Republican lawmakers and many conservative
commentators have criticized the report as misleading.

Intelligence officials have defended the assessment on Iran as an example of the
more rigorous analysis that American spy agencies have adopted in response to
the prewar intelligence failures on Iraq. But while Mr. McConnell praised the
assessment, he said his office had not been clear enough about its conclusions
as it hurried to make it public.

"In retrospect, as I mentioned, I would do some things differently," he said.

Among his litany of worldwide threats, Mr. McConnell also warned the Senate
panel about the growing threat of "cyberattacks" by terror groups or homegrown
militants. He said President Bush signed a classified directive in January
outlining steps to protect American computer networks.

In his testimony on Al Qaeda, Mr. McConnell said Mr. bin Laden and Mr. Zawahri
were precluded by "security concerns" from the day-to-day running of the
organization. But he said both men "regularly pass inspirational messages and
specific operational guidance to their followers through public statements."

Mr. McConnell said the flow of foreign militants into Iraq slowed somewhat
during the final months of 2007. At the same time, however, he warned that Al
Qaeda in Mesopotamia, the largely homegrown Sunni insurgent group in Iraq that
American officials say is led by foreigners, could shift its focus to carrying
out attacks outside Iraq.

Based on captured documents, Mr. McConnell said, fewer than 100 militants from
Al Qaeda in Mesopotamia to date have left Iraq to establish cells in other
countries.

Senator John D. Rockefeller IV of West Virginia, the Democratic chairman of the
Senate Intelligence Committee, blamed the Iraq war for undermining the campaign
against Al Qaeda.

"The focus of America's military forces and intelligence resources were
mistakenly shifted," he said, "from delivering a decisive blow against Al Qaeda,
which is the enemy."

*


Reuters --

February 6, 2008

DOUBTS IN GUANTANAMO ABOUT CANADIAN CAPTIVE'S GUILT

By Jane Sutton

http://ca.reuters.com/article/topNews/idCAN0459630220080207

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - A U.S. soldier's account
casting doubts on military prosecutors' claims against a young Canadian al Qaeda
fighter highlights one inherent difficulty of the Bush administration's efforts
to win convictions before war crimes tribunals in Guantanamo.

How to figure out what happened on the battlefield in places like Afghanistan
six years later and half a world away?

The account was contained in a five-page document given to reporters this week
at a hearing for Canadian captive Omar Khadr, who faces life in prison if
convicted of murdering a U.S. soldier with a grenade in Afghanistan in July
2002.

The account was given 20 months later by the American soldier who shot Khadr
twice in the back during the battle and says that one other man inside that
bombed-out compound was still alive when U.S. forces entered.

That left open the possibility that someone other than Khadr could have thrown
the grenade, contradicting accounts by another participant who had said in media
interviews that it had to have been Khadr because he was the only one left
alive.

The chief military prosecutor, Army Col. Larry Morris, said it was not
surprising the accounts would differ when bullets and grenades were flying.

"That is a window into what happens at war -- lots of people with fleeting
perspectives in short periods of time, trying to remember their best, trying to
perceive as best, as quickly as they can and then report it as accurately as
they can," Morris said on Wednesday.

Journalists were inadvertently given an unredacted version of the document, then
asked to return it, then allowed to keep it but asked not to use the names, unit
numbers and other identifying data it contained.

SECRET INFORMATION

As a condition for visiting the remote U.S. naval base in Cuba to report on the
widely criticized trials, journalists must sign an agreement not to divulge
secret information and acknowledge that they could be prosecuted if they do.

But Morris said the document was never "secret." He said Khadr's defense lawyers
have had it for years and prosecutors take seriously their duty "to provide
every scrap of evidence to the defense that is potentially exculpatory or might
mitigate or reduce his guilt."

He also said the public would be allowed to see all the evidence given to the
jurors at trial.

The chief defense attorney, Army Col. Steve David, said he has no reason to
believe prosecutors are withholding evidence. But military defense lawyers have
been struggling to obtain evidence that is in the hands of numerous government
agencies, some with reason to keep their files secret.

"It underscores another issue and that is the issue with classification and who
classifies, who unclassifies or reclassifies," David said.

"There are layers and multiple entities and agencies involved. It's a function
of asking the right questions ... But if I don't have it, I can't give it to you
if I don't know where to ask."

Military defense lawyers have been denied permission to interview "high-value"
prisoners transferred to Guantanamo after being held in secret CIA custody. They
believe those allegedly high-ranking al Qaeda operatives have information that
could help them understand what, if any, role their clients had in the
organization.

"It raises the issue of what the facts are, what actually happened," David said.

Defense lawyers also suspect some evidence was not preserved because no one ever
expected to need it.

"Did that soldier on the battlefield anticipate that they were going to be
involved in a criminal prosecution?," David asked. "I don't think we anticipate
a criminal prosecution of a 15-year-old."

Khadr, now 21, was 15 when captured and 16 when sent to Guantanamo.

[ Editing by Michael Christie ]

*


New York Times --

February 5, 2008

TIME RUNS OUT FOR AN AFGHAN HELD BY THE U.S.

by Carlotta Gall and Andy Worthington

http://www.nytimes.com/2008/02/05/world/asia/05gitmo.html

KABUL, Afghanistan -- Abdul Razzaq Hekmati was regarded here as a war hero,
famous for his resistance to the Russian occupation in the 1980s and later for a
daring prison break he organized for three opponents of the Taliban government
in 1999.

But in 2003, Mr. Hekmati was arrested by American forces in southern Afghanistan
when, senior Afghan officials here contend, he was falsely accused by his
enemies of being a Taliban commander himself. For the next five years he was
held at the American military base in Guantanamo Bay, Cuba, where he died of
cancer on Dec. 30.

The fate of Mr. Hekmati, the first detainee to die of natural causes at
Guantanamo, who fruitlessly recounted his story several times to American
officials, demonstrates the enduring problems of the tribunals at Guantanamo,
say Afghan officials and others who knew him.

Afghan officials, and some Americans, complain that detainees are effectively
thwarted from calling witnesses in their defense, and that the Afghan government
is never consulted on the detention cases, even when it may be able to help. Mr.
Hekmati's case, officials who knew him said, shows that sometimes the Americans
do not seem to know whom they are holding. Meanwhile, detainees wait for years
with no resolution to their cases.

In response to queries, a spokeswoman for the Pentagon, Cynthia O. Smith, said
the military tribunals at Guantanamo contained "significant process and
protections," including the right to call witnesses.

While Ms. Smith would not discuss specifics, she said that there was nothing to
indicate that Mr. Hekmati's case was handled improperly, and that detainees at
Guantanamo were given a range of protections, including "the opportunity for a
detainee to be heard in person, call witnesses and present additional
information that might benefit him."

Whether those protections are sufficient has been widely debated and is now
being considered by the United States Supreme Court. In the tribunals, which
consider only whether detainees have been properly classified as enemy
combatants, detainees are not allowed to have lawyers or see the evidence
against them. The Supreme Court case will decide whether they have the right to
broadly appeal their detentions in federal court.

Of the 275 detainees at Guantanamo, at least 180 have sought to challenge their
detentions.

Several high-ranking officials in President Hamid Karzai's government say Mr.
Hekmati's detention at Guantanamo was a gross mistake. They were mentioned by
Mr. Hekmati in his hearings and could have vouched for him. Records from the
hearings show that only a cursory effort was made to reach them.

Two of those officials were men Mr. Hekmati had helped escape from the Taliban's
top security prison in Kandahar in 1999: Ismail Khan, now the minister of
energy; and Hajji Zaher, a general in the Border Guards. Both men said they
appealed to American officials about Mr. Hekmati's case, but to no effect.

"What he did was very important for all Afghan people who were against the
Taliban," Hajji Zaher said of Mr. Hekmati's role in organizing his prison break.
"He was not a man to take to Guantanamo."

Hajji Zaher, whose father served as vice president under Mr. Karzai for six
months, warned that the case of Mr. Hekmati, who is widely known here by his
nickname, Baraso, would discourage Afghans from backing the government against
the Taliban. "No one is going to help the government," he said.

Mr. Hekmati never had a lawyer, said Zachary Katznelson of Reprieve, a British
charity that represents a number of Guantanamo detainees. At his October 2004
review hearing, Mr. Hekmati specifically asked that Hajji Zaher and Mr. Khan be
contacted to act as supporting witnesses.

The military tribunal president said the Afghan government did not respond to
requests to locate the men, and ruled that they were "not reasonably available."

Although both men are well known to the American authorities in Afghanistan,
both Hajji Zaher and Mr. Khan said the American authorities had never asked them
to appear.

UNIDENTIFIED ACCUSERS

In Mr. Hekmati's tribunal at Guantanamo in 2004 to assess his status as an enemy
combatant, American officials accused Mr. Hekmati of a variety of charges made
by unidentified sources, and referred to him only as Abdul Razzaq, his first
names, which are common in Afghanistan.

According to transcripts released by the Pentagon, the United States military
charged, among other things, that Mr. Hekmati was "high in the Al Qaeda
hierarchy," acted as a smuggler and facilitator for it, and was "part of the
main security escort for Osama bin Laden." He was also accused of attending a
terrorist training camp near Kandahar and of involvement in assassination
attempts against Afghan government officials.

He was also identified as a senior leader of a 40-man Taliban unit, and even as
supreme commander in Helmand Province.

That last allegation was rebutted by another unidentified detainee, who
explicitly stated that Mr. Hekmati looked nothing like the Taliban commander and
that the commander was "not the same person as the detainee," according to the
transcript.

Mr. Hekmati denied the charges, too, saying he did not even live in Afghanistan
after the 1999 prison break, when he ran afoul of the Taliban. He insisted that
most of the allegations had been directed against him by two of his personal
enemies.

The first was Sher Mohammed Akhundzada, the post-Taliban governor of Helmand
Province, who, Mr. Hekmati said, was directly responsible for his arrest after
he reported the governor for corruption and for protecting a number of senior
Taliban members in Helmand.

The second was Mohammed Jan, a distant cousin who had falsely denounced him as
part of a long-running family feud. "It was one person who gave them wrong
information and just because of this wrong person, I am here," Mr. Hekmati
pleaded at his October 2004 review hearing.

"They can't prove anything against me because I never did anything wrong," he
went on. "The person that was giving you all that wrong information, this is the
person that killed my two brothers, my sister, my father and two of my sons."

Mr. Akhundzada denied any part in Mr. Hekmati's arrest, attributing it to a
mistake by American Special Forces. He said they were often fed false
information.

But friends of Mr. Hekmati said he was arrested in 2003 by Afghan forces in the
provincial capital, Lashkar Gah, during Mr. Akhundzada's tenure and later turned
over to American forces.

Mr. Hekmati maintained that he was opposed to the Taliban, whom he described as
"dangerous and dirty people" who had deviated from Islam.

"Taliban and Al Qaeda are the same," he said at his review board hearing in
September 2005. "When I'm against Taliban I'm going against Al Qaeda. There's an
expression in Pashto that you cannot hold two watermelons in one hand at the
same time."

The only allegation that he accepted was that he had worked as a truck driver
for the Taliban, but he said he had been forced to work for them three months a
year, as every able-bodied man was during the Taliban's rule.

Several people in Afghanistan, including Hajji Mir Wali, a member of Parliament,
and Mullah Abdul Salam Zaeef, the former Taliban ambassador to Pakistan, who was
held in a cell next to Mr. Hekmati in Guantanamo for three months in 2003,
confirmed that he was a truck driver for the Taliban government in the 1990s.

But Mullah Zaeef said Mr. Hekmati could never have worked for the Taliban again
after 1999, such was their fury over the prison break he organized.

Hajji Wali, who knew Mr. Hekmati well, said: "It was the Americans' mistake. I
know he had no relations with the Taliban."

Yet the Americans on his tribunal and review boards seemed unaware of how
significant the prison break was, or how important were the men he had helped
escape and whom he had asked to be called as witnesses.

THE PRISON BREAK

The 1999 escape was a deep humiliation for the Taliban government, which blocked
roads and searched houses across the country for days afterward and offered $1
million for the capture of the escapees. Two of Mr. Hekmati's relatives were
badly tortured by the Taliban after the prison break as the Taliban looked for
information.

Two of the men Mr. Hekmati freed, Mr. Khan and Hajji Zaher, returned to the
battlefield to lead forces against the Taliban. They both received significant
American support in 2001 and worked with Special Forces units.

A third man who escaped with them was another commander of the anti-Taliban
Northern Alliance, Gen. Mohammed Qasim.

According to Mr. Hekmati's account in his hearing in September 2005, he
organized the escape because he opposed the Taliban's "ruthlessness and
injustice."

Mr. Hekmati said he had written a letter outlining his escape plan, which his
son, Hekmatullah, who worked as an intelligence officer at the Taliban's high
security prison, smuggled in to Mr. Khan. Mr. Khan then put Mr. Hekmati in touch
with his own son, who gave him $20,000 to buy a Toyota Land Cruiser for a
getaway vehicle.

Mr. Hekmati said that because his son was trusted by the Taliban, he was able to
walk the three prisoners out one night to where he was waiting in the dark with
the vehicle. Hekmatullah corroborated much of his father's account in an
interview in 2002.

The men escaped to Iran, where Mr. Khan provided Mr. Hekmati and his family with
a house and financial support in return for his daring. Mr. Hekmati said he
returned to Afghanistan only in 2002, after the Taliban were toppled and Mr.
Karzai's interim government was installed. Within a year, he was arrested.

THE MILITARY TRIBUNALS

In a report in February 2006 based on an analysis of documents released by the
Pentagon, researchers at Seton Hall University School of Law, in Newark,
concluded that no outside witnesses had ever been called to appear at
Guantanamo. Lt. Col. Stephen E. Abraham, a former United States intelligence
officer who had worked on the tribunals, stepped forward last June to criticize
the tribunals.

In a submission to the Supreme Court, he condemned them for relying on
generalized evidence that would have been dismissed by any competent court, and
as being devised to rubber-stamp the administration's assertion that the
detainees had been correctly designated "enemy combatants" when they were
captured and that they could be held indefinitely.

In a second submission, to the United States Court of Appeals for the District
of Columbia Circuit in November, Colonel Abraham explained that he was "not
aware of any realistic attempts" to "identify or even attempt to bring before
the tribunal witnesses or their statements," and concluded that the whole
process "was designed to conduct tribunals without witnesses other than the
accused detainee."

That is one of the reasons Afghan officials have asked that Afghan detainees be
transferred from Guantanamo to Afghanistan. "Of course a judicial process needs
witnesses and documents and evidence," Minister of Justice Mohammad Sarwar
Danish said. "Most of these cases have not come to trial, and are not
proceeding, and that is why we asked them to be moved here."

After Mr. Hekmati was arrested, two of the men he broke out of prison, Mr. Khan
and Hajji Zaher, said they appealed to American and Afghan officials for his
release. "I asked President Karzai to help, but unfortunately it did not help,"
Mr. Khan said. He said he also asked the American ambassador to Afghanistan at
the time, Zalmay Khalilzad, with no result.

"We did try but it was not working," Hajji Zaher said in a phone interview.
"When they are sending someone to Guantanamo, they have their own rules."

After Mr. Hekmati's death at Guantanamo, his body was returned to Afghanistan
and quietly buried in an unmarked grave in Kandahar on Jan. 8. His family did
not dare attend the funeral, fearful of both the Taliban and the Americans,
friends said.

As the Taliban has reasserted itself in much of southern Afghanistan, Mr.
Hekmati's son remains in hiding. Neither he nor any relative or elder of their
tribe collected his father's body.

"He is caught in the middle," said Hajji Wali, a family friend. "He is scared of
the Taliban and scared of the government and the Americans, because the
Americans took his innocent father and they could take him, too."

*


Savannah Morning News --

January 23, 2008

GUANTANAMO CHIEF BLASTS CRITICS IN COMMENTS TO SAVANNAH AUDIENCE

by Pamela Walck

http://www.savannahnow.com/node/435154

Few people can say they've caught a glimpse of life behind the wires of
Guantanamo Bay, Cuba.

But some 100 members and friends of the Savannah Council, Navy League of the
United States can brag they have seen and heard more than most.

Tuesday night, the league's guest was Rear Admiral Mark H. Buzby, commander of
the Joint Task Force based at Guantanamo. He spoke at the Hunter Club for the
council's monthly meeting.

James Keller, president of the local league chapter, said it was a chance
meeting during a commissioning ceremony that brought the admiral to Savannah -
the fact that Guantanamo has been in the news a lot lately was merely a plus.

During his remarks, Buzby shared personal insights and photos of America's
oldest naval base - including images of the holding blocks and living conditions
for 275 current detainees, all with suspected links to al-Qaida and other
terrorist cell groups who have been housed there since 2002.

"I leaped at the opportunity to speak to people who like the Navy," Buzby said,
"and because of the opportunity to speak about the most misunderstood command in
the Navy."

Offering his version of the "truth," Buzby said he and his officers have a "very
cordial" relationship with their Cuban counterparts on the other side of the
base's wires.

And since Guantanamo first started taking detainees in America's global war
against terrorism, Buzby said some of the base's detainees have been linked to
the 9/11 bombings, the attack on the USS Cole, the embassy bombings in Kenya and
Tanzania as well as the Taliban aggression in Afghanistan and Northern Africa.

"We have everyone from the higher-ups to the trigger-pullers, and everybody in
between," Buzby said. "Basically, I have a rebuilt al-Qaida cell inside my
camp."

And while some of that leadership has been holed up for the last six years,
Buzby said many have a keen working knowledge of al-Qaida and the Taliban's
current leadership because they once were underlings for many of those captured
in 2002.

Buzby and others contend that since the detainees were captured during warfare,
under the laws of conflict, those detained can be held without charges until the
war ends.

But with America's War on Terror entering another year, and with no end in
sight, Buzby doesn't see Guantanamo's purpose changing much in the future.

In fact, the base is about to enter a new era later this spring when military
commissions - similar to civilian court proceedings - will begin for as many as
100 detainees with ties to terroristic acts across the globe.

Six years later, these detainees are still providing valuable information.

Buzby said that recently, some detainees re-created detailed maps of the Tora
Bora area of Afghanistan, using poster board paper and a crayon. It was
information passed along to coalition forces in the area that enabled those
forces to wipe out safe houses, trench lines and enemy supplies.

"For a Subway BMT, they will talk a whole lot," Buzby said.

Buzby acknowledged that many question the care and conditions at the base, but
he insists it's nonsense.

He said there is one doctor for every three detainees - and many of the
physicians also see the top members of Congress as patients.

"People who question the level of care don't know what the hell they are talking
about," Buzby said to loud applause at one point.

COMMANDER DESCRIBES LIFE AT GITMO

Prior to his address, Rear Adm. Mark H. Buzby - commander of the Joint Task
Force at Guantanamo Bay, Cuba - sat down for a question and answer session with
the Savannah Morning News:

SMN: What is a "typical" day for a detainee at Guantanamo?

Buzby: "Detainees are housed for the most part in individual cells that are
about 8 feet by 10 feet roughly in size, all next to each other. They wake up
around 5 or 6 in the morning, and they are given their breakfast. They are given
three meals a day, roughly about 4,500 to 5,000 calorie a day diet total.
Morning prayer is called. They pray five times a day. Then after breakfast, it's
varied.

"Everyone will get at least two hours of recreation, we stagger that. ... After
recreation, they will shower and go back to their cells. Some may go to a
medical appointment if they have some sort of ailment that requires them to be
seen by a physician.

"Some, if willing, will go to an interview or interrogation that can last two to
four or five hours.

"Lunch gets served around 11:30 ... there's more prayer times. ... Dinner is
served usually around 6, and we turn the lights- they never go off, but they go
down at 10 p.m., and that's kind of their day."

SMN: Since you've been assigned to Guantanamo, the number of detainees has been
reduced dramatically. Is there a goal for when the base will be free of
suspected terrorists, or do you think it will always function in that capacity?

Buzby: "The process is really controlled by the deputy secretary of the
Department of Defense, Secretary (Gordon) England. He is what's known as the
designated civilian official for detainee affairs, and he reviews the stats of
all the detainees on a constant basis and makes a determination every year ...
after reviewing the records as to whether they should be retained under U.S.
government control, transferred to the control of another government - typically
the country where they were born - or outright released.

"If they fall into that transfer category, the State Department works with host
countries to arrange a transfer. Saudi Arabia, for example, has taken back
almost all their detainees because they have a very well established
rehabilitation program, which has been very, very successful. We feel very
comfortable releasing those detained back to their countries.

"(Others) such as Yemen don't have a good track record. A lot of the people they
have captured have escaped. Afghanistan is somewhere in the middle there.

"And many will go before a military commission, which is a trial. They will be
brought up on charges and tried before a military commission. (We have) about
100 or so that will go through that process.

"Depending on the outcome, they will then be prisoners and go into detention
facilities someplace. But no decision has been made whether that will remain
Guantanamo or in the U.S. prison system. That process begins this spring."

SMN: There have been reports that many detainees are fearful of returning to
their home land for fear of being tortured or killed. Was that something the
U.S. government ever expected? Is it a valid fear?

Buzby: "In some cases, we did. In some, cases we didn't. We did not with the
Algerians. We sent a lot of Moroccans back - when I say we, I mean the U.S.
government. We try very hard to ensure we are not going to put detainees back
into dangerous circumstances."

SMN: What is your opinion of waterboarding as a form of information gathering?
Do you regard it as torture?

Buzby: "Waterboarding, to the best of my knowledge, is not in accordance with
the guidance of the Army field manual concerning interrogation - which is what I
have to go by. So it would never be allowed and has never been allowed at
Guantanamo and has never been done at Guantanamo. I have never had it done to me
personally. The description of it sounds pretty gruesome, and it would not be
something I would want to endure.

SMN: How many of the 275 detainees at Guantanamo will face charges?

Buzby: "About 100 are scheduled for trials. Others we're still developing cases.

"Many are enemy combatants that were removed from the battlefield - that was
their major sin in this world: They were fighting against coalition forces.

"The law of war and conflict, which is the governing doctrine in this case,
states two warring states have the right to remove combatants from the
battlefield. You don't have to charge them with anything, and they don't have to
be guilty of anything. They just have to be caught in the process of fighting
the other guy.

"At the end of the conflict, you turn them lose. So some of them may fall into
that category - so when the fighting is over, the door is open and they go home.

"The problem is: When does the global war on terror end? Who knows? But until I
get told otherwise, I keep them behind the wire."

*


The New Yorker --

January 21, 2008

THE SPYMASTER

Can Mike McConnell fix America's intelligence community?

by Lawrence Wright

http://www.newyorker.com/reporting/2008/01/21/080121fa_fact_wright

Last May, the director of National Intelligence, a soft-spoken South Carolinian
named Mike McConnell, learned that three U.S. soldiers had been captured by
Sunni insurgents in central Iraq. As a search team of six thousand American and
Iraqi forces combed through Babil Province, analysts at the National Security
Agency, in Fort Meade, Maryland, began examining communications traffic in Iraq,
hoping to pick up conversations among the soldiers' captors. To McConnell's
consternation, such surveillance required a warrant -- not because the
kidnappers were entitled to constitutional protections but because their
communications might pass electronically through U.S. circuits.

The kidnappings could have been just another barely noticed tragedy in a long,
bloody war, but at that moment an important political debate was taking place in
Washington. Lawmakers were trying to strike a balance between respecting
citizens' privacy and helping lawenforcement and intelligence officials protect
the country against crime, terror, espionage, and treason. McConnell, who had
been in office for less than three months when the soldiers were captured, was
urging Congress to make a change in the 1978 Foreign Intelligence Surveillance
Act, or FISA, which governs the process of eavesdropping on citizens and
foreigners inside the U.S. and requires agencies to obtain a warrant within
seventy-two hours after monitoring begins. The act was a response to abuses of
the Nixon era, when the U.S. government turned its formidable surveillance
powers against peace activists, reporters, religious groups, civil-rights
workers, politicians, and even members of the Supreme Court. Over the years, the
act had been amended many times, but McConnell believed that FISA -- a law
written before the age of cell phones, e-mail, and the Web -- was dangerously
outmoded. "If we don't update FISA, the nation is significantly at risk,"
McConnell told me. He said that federal judges had recently decided, in a series
of secret rulings, that any telephone transmission or e-mail that incidentally
flowed into U.S. computer systems was potentially subject to judicial oversight.
According to McConnell, the capacity of the N.S.A. to monitor foreign-based
communications had consequently been reduced by seventy per cent. Now, he
claimed, the lives of three American soldiers had been thrown onto the scale.

McConnell is the head of the sprawling assemblage of covert agencies known as
the "intelligence community" -- a term that first appeared in the minutes of a
staff meeting of the Intelligence Advisory Committee, in 1952. That year,
President Truman signed a secret memorandum creating the N.S.A., which is still
the largest of the sixteen intelligence bureaucracies. The Pentagon has a
Defense Intelligence Agency, and each military branch has its own intelligence
shop. There are three very expensive technical agencies: the N.S.A., which is
responsible for code-breaking, code-making, communications monitoring, and
information warfare; the National Geospatial-Intelligence Agency, which makes
maps and analyzes surveillance photographs; and the National Reconnaissance
Office, which provides satellite imagery. The Central Intelligence Agency is in
charge of human intelligence on foreign targets, although the Defense
Intelligence Agency also conducts "humint" operations for the military. Domestic
intelligence is handled by the Federal Bureau of Investigation, the Drug
Enforcement Administration, and divisions of the Department of Homeland
Security. The State Department has its own intelligence-analysis bureau, as do
the Energy and Treasury Departments. The intelligence community employs more
than a hundred thousand people, including tens of thousands of private
contractors. And its official budget, which last year was $43.5 billion, omits
the military's intelligence operations, which, if included, would probably push
the total annual cost past $50 billion -- more than the government spends on
energy, scientific research, or the federal court and prison systems.

To call the disparate intelligence bureaucracies a community suggests that they
share a collegial spirit, but throughout their history these organizations have
been brutally competitive, undermining one another and even hoarding vital
information. Since the establishment of the CIA, in 1947, the fractious
intelligence community has botched many of the major tasks assigned to it. Its
failures include the Bay of Pigs invasion, the unforeseen collapse of the Soviet
Union, the inability to prevent the September 11th attacks, and the catastrophic
assessment that Iraq, under Saddam Hussein, possessed weapons of mass
destruction. There have been successes -- in 2006, American intelligence helped
lead to the arrest in England of twenty-four conspirators who were plotting to
blow up at least ten transatlantic airliners -- but they don't begin to outweigh
the damage caused by bungled operations and misguided analysis.

Over the past sixty years, frustrated Presidents and lawmakers have commissioned
more than forty studies of the nation's intelligence operations, to determine
how to rearrange, reform, or even, in some cases, abolish them. Most of these
studies have concluded that the rivalries and conflicting missions of the
warring agencies could be resolved only by placing a single figure in charge.
Yet, until September 11th, there was no political will to do so. In 2004, after
the 9/11 Commission recommended the appointment of a powerful overseer, Congress
passed the Intelligence Reform and Terrorism Prevention Act, which created the
Office of the Director of National Intelligence, or O.DNI Dissenting lawmakers
complained that the new office would simply add another tier of bureaucrats to
an already congested roster. Indeed, although the 9/11 Commission suggested that
the O.DNI needed no more than a few hundred employees, it has quickly expanded
to some fifteen hundred. Most of these additions, however, are transfers from
other agencies -- a maneuver that has rankled senior intelligence managers,
especially in the CIA, which fiercely opposed the establishment of the new
office. Until the 2004 law passed, the nominal leader of the intelligence
community was the head of the CIA Now the agency reports to the DNI, just as the
intelligence branch of the Coast Guard does.

The reforms came at a time when the basic value of intelligence-gathering was in
question. "We have such a huge infrastructure that adds so little to our
understanding and frequently gets us in trouble," says Richard Clarke, who
served as the counterterrorism coördinator under President Clinton and, until
2002, in the current Administration. "You're left with the impression that it
wouldn't make any difference if they didn't exist."

In April, 2005, Congress confirmed John Negroponte, then the U.S. Ambassador in
Iraq, as the office's first director. General Michael Hayden, the head of the
N.S.A., became his deputy. But Negroponte lasted only two years in the job
before returning to the State Department, where he clearly felt more at home.
And Hayden left to lead the CIA There were few candidates eager to replace
Negroponte in the last two years of an embattled, lame-duck Administration. And
although the 2004 reforms had given the director of National Intelligence
responsibility for overseeing the community, his powers were limited.

The President turned to Mike McConnell, a retired admiral who had directed the
N.S.A. from 1992 to 1996, but who was not well known outside the intelligence
community. Sixty-three years old at the time, McConnell was part of the
featureless parade of management consultants and security experts who work for
federal contractors based in northern Virginia, near CIA headquarters. McConnell
was a senior vice-president of Booz Allen Hamilton, the oldest of these firms.
The war on terror and the wars in Afghanistan and Iraq were generating an
economic boom in the Virginia suburbs, and McConnell, like many retired spooks,
was reaping the benefits of his government experience and his top-secret
clearance.

McConnell has pale, thin, sandy hair, blue eyes, and skin as pink as a baby's.
His back troubles him, and he walks with a slight stoop, which becomes more
pronounced as the day wears on. His friends describe him as quick-minded and
crafty, with an unusual ability to synthesize large amounts of information. A
workaholic, he regularly lugged two briefcases home each night. Yet, ten years
after leaving the government, he was finally making real money -- two million
dollars a year at Booz Allen -- and was looking toward a comfortable retirement,
perhaps in a cabin in the Carolinas, where he could build birdhouses (he and his
wife, Terry, are members of a society whose purpose is to protect the Eastern
bluebird) and listen to soft rock and rhythm and blues. He claims to be a
terrific dancer.

In September, 2006, McConnell was offered the DNI job and refused it. One of the
major limitations of the post was that eighty per cent of the intelligence
budget was controlled by the Secretary of Defense -- and at the time that was
Donald Rumsfeld, whose contempt for the CIA and other civilian intelligence
agencies was well known. Two months later, Rumsfeld resigned, and Robert M.
Gates replaced him. When Vice-President Dick Cheney approached McConnell again,
over Christmas, he asked for time to think about it.

"My first phone call was to Secretary Gates," McConnell recalls. The two men had
known each other since the first Gulf War, when Gates worked in the White House
as deputy national-security adviser and McConnell was the intelligence officer
for the Joint Chiefs of Staff. Gates, a former CIA director, had been offered
the DNI job before Negroponte, and turned it down. "Mike had a lot of the same
concerns I had with the 2004 act, in terms of the ability to get things done,"
Gates told me. "Under the legislation, the DNI had the responsibility for
executing the intelligence budget and assuring that everybody in the community
obeyed the law, but he didn't have the authority to fire anybody." The community
that both men had spent decades serving was in tumult. Morale was low,
especially after the W.M.D. disgrace, when many Americans blamed the
intelligence community for dragging the country into an unnecessary conflict. A
number of experienced officers had walked away in shame and frustration.
Moreover, the nation that had launched a war in Iraq because of faulty
intelligence was now losing the battle, in part because it was so poorly
prepared to understand the enemy. Al Qaeda, which the CIA and the military had
failed to vanquish in Afghanistan, was reconstituting itself there, as well as
in Pakistan, Iraq, Somalia, and North Africa. Meanwhile, North Korea had
exploded a low-yield nuclear bomb, and China was emerging as a rival to American
supremacy. The need for reliable intelligence was arguably greater than it had
been during the Cold War, when the enemy was easy to find, if hard to destroy;
now the enemy might be a small group of lightly armed men who could be anywhere,
and whose capacity to cause great harm had been appallingly demonstrated.

Gates informed McConnell that he had recommended McConnell's old friend
Lieutenant General James Clapper to be Under-Secretary of Defense for
Intelligence. "I thought that, between Hayden, McConnell, Clapper, and myself,
we could reach an agreement on some of the issues that hadn't been resolved by
the legislation," Gates said. If McConnell and Clapper took office, each of the
major agencies would be led by a military man. This unique alignment, Gates and
McConnell believed, would offer the best chance that the intelligence community
would ever have to reform itself. Unsurprisingly, the model they had in mind was
the American armed forces.

All four men were insiders who understood the culture of intelligence-gathering.
"There hadn't been this kind of alignment of stars in the more than forty years
of my experience in the intelligence community," Gates said. The question was
whether they could be sufficiently objective and forceful to reshape a
subterranean branch of government that had failed so deeply in its mission.

McConnell accepted the post and in February, 2007, he was sworn in. Clapper's
wife gave McConnell and her husband clocks that counted down to the last second
of the Bush Administration, on January 20, 2009. That was the amount of time,
McConnell believed, that he had to lead a revolution.

"I don't know much about you," I admitted to McConnell at the end of July, when
we met for the first of a series of discussions in his temporary office, which
is at Bolling Air Force Base, in Washington. Despite his long career, there was
little in the public record about his background.

"That's a good thing," he said. "I'm a spy."

He told me that he was born in Greenville, South Carolina, in 1943. "Working
class. My father grew up in a mill village. In the Depression, he worked sixty
hours for six bucks. His view of the world was that wasn't right. So he decided
to become a union organizer." McConnell's father campaigned against child labor
and was an outspoken proponent of civil rights, at a time when that was
genuinely dangerous. McConnell recalled, "The 'n' word was forbidden in my
house, and it wasn't uncommon for us to have black people come over to the house
for a meal. Kids I grew up with would absolutely reject any thought of that." He
said of his father, "He pushed back against everything. When I was ten, maybe
thirteen years old, he described to me bureaucratic behavior and people being
afraid of change. He said that people never accept change willingly. I remember
it as clear as day, thinking, Change will never frighten me."

McConnell's parents were poor -- "They had, basically, nothing" -- so he got a
student loan and a job and went to North Greenville Junior College, where he was
elected student-body president in his second year; he then transferred to Furman
University, a private college, living in a closet in the gym during his first
semester while he managed the basketball team. In his senior year, he married
his childhood sweetheart, Suzanne Gideon, in the first of two marriages. It was
1965, during the Vietnam War.

"Where I grew up, in South Carolina, there's a war, you're supposed to go,"
McConnell said. He joined the Navy and, in August, 1967, went to Vietnam,
spending a year on a boat patrolling the Mekong River. The lesson he learned
from Vietnam was "Be careful what you get into." He went on, "During the latter
stages of Vietnam, soldiers were fragging their own officers, and drugs were
rampant. The military was a shambles." Like the agencies of the intelligence
community, the military's various branches undermined rather than helped one
another. As McConnell put it, "The Navy has its own ground force, its own air
force, and its own ships. So the view of the Navy is: Why do we need anybody
else?"

A new generation of leaders at the Pentagon, McConnell said, decided that the
military needed to be reformed. "Guys like Colin Powell, they just made a
decision -- 'This is our Army, we're taking it back.' And they did. What that
led to was an all-volunteer force, the most professional army in history." In
1986, the Goldwater-Nichols Act restructured the military, despite resistance
from the leaders of the uniformed branches. The law established the Secretary of
Defense as the top decision-maker and awarded battlefield commanders more
control. The 1991 Gulf War, with its coördinated use of overwhelming power,
provided a stunning example of the restructured armed forces. McConnell
recalled, "Every service chief stood up and said, 'This is the greatest thing to
happen to the United States military.' "

The 2004 intelligence legislation was not nearly as comprehensive as Goldwater-
Nichols, but McConnell came into office with a slate of reforms, called the
Hundred-Day Plan, that was modelled on the streamlined military command. He
proposed a "culture of collaboration," which would require agencies to work
together. The cost of one agency hiding intelligence from others was made
dismally clear in the recent Inspector General report on the performance of the
CIA before 9/11. The report revealed that in March, 2000, between fifty and
sixty individuals within the agency had known that two future Al Qaeda hijackers
were infiltrating America, but nobody at the CIA had informed the F.B.I.

McConnell's hundred days ended in August. He set up an executive committee made
up of the heads of the most significant agencies, and took control of the budget
for the community. Some important advances were made in sharing intelligence and
in prompting career employees to serve outside their home agencies, but he
admits that his office should have been more realistic about how long it would
take to bring about such profound changes. In the fall, he established a Five-
Hundred-Day Plan, which coincided with the number of days remaining on his
countdown clock. This second phase focusses on information technology and
clearance issues. The intelligence community is literally incapable of
understanding the enemy, because substantial security barriers have been placed
in the path of Americans who are native speakers of Arabic and other critical
languages. In the six years since September 11th, very little progress has been
made in hiring people who might penetrate and disrupt Al Qaeda and its
affiliates.

McConnell was undaunted. "I grew up in this community," he said. "I served it as
a consultant. I'm passionate about it. So this job gives me the opportunity to
make a contribution, even to the consternation of the bureaucracies, because I
am going to force them to coöperate."

In August, just before the congressional recess, members of the House and the
Senate were frantically seeking a compromise on a FISA-reform bill. McConnell
explained one day over lunch at his office, "When the law was passed, in '78,
almost all international communication was wireless," meaning that it relied
mainly on satellites. "Today, ninety per cent goes through a glass pipe" -- a
fibre-optic cable. "So it went from almost all wireless to almost all wire." He
put down his sandwich and walked over to a world map on his wall. "Terrorist on
a cell phone, right here" -- he pointed at Iraq -- "talking to a tower, happens
all the time, no warrant. Tower goes up to a microwave tower, no warrant. Goes
up to a satellite, back to the ground station, no warrant. Now, let us suppose
that it goes up to a satellite, and in the process it does this" -- his finger
darted to the U.S. before angling back to Pakistan. "Gotta have a warrant! So it
was crazy."

The changes to FISA that McConnell proposed were minor, in his view. "Three
things we wanted," he told me, in characteristic bulletin language. "First, we
had to have a situation where it doesn't require us to get a warrant for a
foreign person in a foreign country. Second point, we need the coöperation of
the private sector. The private sector is being sued for allegedly coöperating
with the government." He was referring to reports that, even before 9/11, many
of America's major telecommunications companies had diverted virtually all
records of telephone and e-mail traffic from their routers into N.S.A. data
banks, where it could be stored and examined. McConnell wanted liability
protection not only for the companies' future coöperation but for their past
actions as well; however, he agreed to take the issue of retroactive immunity
off the table if Congress would reconsider the matter after its recess. ("We
were in a pissing contest with the Administration, because they wouldn't give us
the documents to show what they needed the immunity for," Silvestre Reyes, of
Texas, the chairman of the House Intelligence Committee, told me.) McConnell's
third point was uncontroversial: he wanted a warrant to be required whenever a
person in the U.S. was the object of surveillance. However, the reform bill
before Congress, which Democrats in both houses had rejected, did not protect
Americans -- travellers, soldiers, exchange students, diplomats -- who happened
to be outside the United States.

As the vote on the legislation approached, the Administration let it be known
that threats from Al Qaeda had increased in number; there had even been signs,
it claimed, of a plot to attack Congress. Many lawmakers felt manipulated and
suspicious. In a meeting with McConnell, I said, "According to Senator Harry
Reid, the legislation 'authorizes warrantless searches and surveillance of
American phone calls, e-mails, homes, offices, and -- ' "

"Totally untrue!" McConnell exclaimed. "I'm telling you, if you're in the United
States you have to have a warrant. Authorized by the court. Period!" Critics
argued, however, that the proposed law left a loophole. If the Attorney General
and the DNI decided that a foreign target was a subject of interest, the law
permitted them to conduct surveillance on any Americans who might be in touch
with that person, to break into their homes, to open their mail, to examine
their medical records -- all without a warrant. Legislators worried that the law
would permit the intelligence community to "reverse-target" Americans who
happened to be making international calls but who had nothing to do with
terrorism.

"That's a violation of the Constitution," McConnell said. "We can't do that,
wouldn't do that." Naturally, some innocent Americans would be overheard, he
conceded. "What do you do about it? It's called 'minimize.' Courts reviewed it
-- it works. You get an inadvertent collection? When you recognize what it is,
you destroy it. Exception: let's suppose it was terrorism or crime. In that
case, as a community, it is our obligation to report it. But to claim that this
community is monitoring the e-mail and telephone calls of millions of Americans,
and that we're doing reverse-targeting, is clearly absurd."

McConnell admitted that Congress had reason to be wary of the intelligence
community's intentions. "In the forties, fifties, sixties, seventies -- every
President used either law enforcement or intel to conduct activities in the
interest of national security by tapping telephones of Americans," he said. FISA
had been a useful corrective. He summed up the law's intent as follows: "You
intel guys go off and do your foreign-intel mission, but if you ever do it in
this country you gotta have a warrant, O.K.?"

The intelligence agencies have always had a murky relationship with the law. "We
have to be at the edge of legality all the time," Admiral William Studeman, who
preceded McConnell as the director of the N.S.A., told me. "Otherwise, we can't
do our job." He added, "In foreign environments, all espionage agencies break
the laws every day -- but they're somebody else's laws. Now there seems to be a
notion that because we're criminals overseas we're criminals domestically."

Six weeks after 9/11, Congress passed the U.S.A. Patriot Act. The F.B.I. was
given expanded authority to issue "national-security letters," a form of
subpoena entitling the bureau to pry into the private lives of American citizens
and visitors who were not the subject of a criminal investigation and might not
even have been suspected of being terrorists or spies. There was no judicial
oversight. Unlike a FISA warrant, a national-security letter did not permit the
government to eavesdrop on phone calls or read e-mails, but it did allow the
examination of phone records, bank accounts, Web searches, and credit-card
purchases. The F.B.I. was required to prove a specific national-security need
before serving such letters, but a recent Justice Department audit uncovered
dozens of cases in which bureau officials appeared to have violated this rule.
"We found wholesale abuse of that authority," Silvestre Reyes told me. "It
underscored the need for constitutional protections."

I asked McConnell how the new FISA law would be different. How could Americans
be sure that the intelligence community wouldn't commit even more intimate
invasions of privacy?

"A national-security letter was a whole new tool," he explained. "Now, did the
F.B.I. have the structure and experience and time to learn, the way you do in
the FISA world? In fact they did not. It was used in a sloppy way." He said that
the FISA system, by contrast, was governed by a strict protocol that had been in
place for decades. (A special FISA court in Washington, established in 1978,
confidentially weighs all requests for FISA warrants.)

On August 1st, McConnell and his staff stayed up all night preparing their
position on FISA for lawmakers. Despite his long government service, McConnell
had never been enmeshed in a partisan legislative debate. "Mike McConnell is a
first-rate professional," Senator Arlen Specter, Republican of Pennsylvania,
told me. "But he's a little out of his element in politics."

The next afternoon, the top Democratic leaders, including Reid and Reyes,
gathered in the office of Nancy Pelosi, the Speaker of the House, and placed a
call to McConnell. The Democrats presented him with their proposal, which
stated, among other things, that if Congress was going to allow the President to
conduct warrantless surveillance the power had to be limited to matters of
terrorism. McConnell responded that this would hamper the ability of the
intelligence community to collect information about dangerous foreign powers
such as Iran and North Korea. He also rejected language in the bill requiring
the Attorney General and the FISA court to establish guidelines for which kinds
of contact between a targeted foreigner and a U.S. person merited a warrant; he
called the idea a "poison pill." The Democrats ceded on both points. He pledged
to get back to the leaders half an hour later, with a new draft of their bill
which reflected his concerns.

When McConnell didn't call back, the Democrats telephoned his office. His
assistant told them that he was talking to the White House. McConnell called
back at around seven. According to two people present in Pelosi's office,
McConnell apologized, saying that he had been on the phone with "the other side"
and that he could no longer abide by their compromise. He told the Democrats,
"I've spent forty years of my life in this business, and I've been shot at
during war. I've never felt so much pressure in my life."

Late that evening, McConnell's office sent the legislators a sweeping revision
that bore little resemblance to their bill. Reyes, among others, felt betrayed.
"We had thought we were dealing in good faith," he said. (McConnell denies that
he and the Democrats had a firm agreement.)

On Friday, August 3rd, in a furious scramble, the Democrats and the Republicans
pushed rival bills to the floor. McConnell happened to be on Capitol Hill,
explaining some of the technical language to the senators, and was surprised to
discover that the Senate was about to vote. "At that point, I had seen neither
version," he said. He was in the Vice-President's office in the Senate, watching
the debate on a monitor, as each side claimed to be sponsoring "McConnell's
bill." McConnell wrote a note officially rejecting the Democratic version,
saying that it "creates significant uncertainty."

The Republican bill, called the Protect America Act, passed that night. The next
day, the House, desperate to adjourn, passed the legislation, which was
designated a placeholder that would expire in six months, allowing lawmakers to
deliberate more fully after their break.

"Then all the press stuff started," McConnell said. " 'The White House rolled
McConnell!' 'The naïve admiral learns a hard political lesson.' I guess the part
that bothered me a bit was the rhetoric coming off the Hill, impugning my
integrity, saying I was less than honest." When asked if he had bowed to the
White House, McConnell said, "Nothing could be further from the truth."

Six mornings a week, McConnell awakens at four, does twenty minutes of back
exercises, then prepares for his daily briefing of President Bush -- a task that
was formerly the jealously guarded prerogative of the CIA The night before each
meeting, McConnell receives a draft of the Presidential Daily Brief, a
compendium of topical items. At 6 A.M., a dark armored Suburban arrives at his
house, in northern Virginia, and takes him to the White House. On the way, he
says, he reads a summary of operational and intelligence traffic -- "messages,
e-mails, or whatever" -- from the past twenty-four hours.

The Presidential briefing starts between seven-thirty and eight and rarely lasts
longer than an hour. In addition to Bush and Cheney, the core group includes
Joshua Bolten, Bush's chief of staff, and Stephen Hadley, the national-security
adviser. "We take analysts into the Oval Office three or four times a week for
what we call a 'deep dive,' " McConnell said. Once a week, the deep dive
concerns Iraq. The Secretaries of State and Defense usually attend. "Sometimes
we'll go right out of the briefing in the Oval to the Situation Room, where
we'll meet with the National Security Council." A screen in the room displays
live video feeds of Ryan Crocker, the Ambassador to Iraq; General David
Petraeus, the U.S. commander there; and Admiral William J. Fallon, the CENTCOM
commander. McConnell went on, "Another day, we do Homeland Security, so in the
room will be the core group, plus the Attorney General, the director of the
F.B.I., the Secretary of Homeland Security, and the adviser to the President for
Homeland Security. Another day, we could do a deep dive on the former
Yugoslavia, Georgia, Russia, China -- whatever the issue is."

By nine-thirty, McConnell is back in the Suburban, headed to Bolling Air Force
Base. His temporary office is in the Defense Intelligence Agency building there,
a chilly steel-and-glass structure with a Scud missile erected beside the
elevator bank and a pair of Saddam Hussein's gold-plated automatic weapons
displayed in the lobby. His office is spare, except for a photograph of his
children and a few treasured artifacts -- a Yemeni dagger and a blue vase from
the People's Liberation Army of China. Through the large windows, one can see
planes landing at Washington's National Airport and marines running around a
track. He frequently leaves the office to testify before Congress, or flies off
for a speech. He usually arrives home around eight. "My wife gets about fifteen
minutes a day," he said. "She's not a happy camper. Now, I'm not complaining.
This is a demanding job, but I love doing it."

McConnell claims to be "apolitical," by which he means nonpartisan. "I'm not a
Republican or a Democrat," he told me. "My worry is good government." On another
occasion, he said, "I always vote, and I've voted for both parties." His
political heroes are Lincoln, Churchill, and Franklin Roosevelt. "The thing that
always impressed me was the pressure on Lincoln, and how he stood up to it," he
said. He noted the discord surrounding Lincoln's decision to suspend habeas
corpus during the Civil War. "There are a lot of parallels. The current
Administration is accused of spying on Americans. And I'm right in the middle of
that."

McConnell often speaks admiringly of General Colin Powell, who, as chairman of
the Joint Chiefs of Staff in 1990, hired McConnell, then a Navy captain, to be
his intelligence officer. "I was impressed by his reputation and by his
interview," Powell told me. McConnell was well versed in technical intelligence,
but not in other important areas, such as ground warfare. That didn't seem like
such a liability at the time. "It was going to be a quiet summer, so I hired
him," Powell said, laughing. Four days later, Saddam Hussein's troops invaded
Kuwait.

It was McConnell who informed Powell that Iraqi troops had massed on the border.
At a speech last fall at the Woodrow Wilson International Center for Scholars,
in Washington, he recalled, "I'm anticipating the question was going to be 'How
many divisions.' He said, 'Mike, how many maneuver brigades?' I didn't even know
what a maneuver brigade was.... So I now feel about two inches tall. I said,
'Sir, I don't know, but I'll find out.' " Powell was not bothered by the reply.
He instructed McConnell in his rules for an intelligence agent: "Tell me what
you know, then tell me what you don't know, and only then can you tell me what
you think. Always keep those three separated." Powell says that McConnell spent
weeks carrying around flash cards of Army terms.

The government was desperate to determine whether Iraqi troops were merely on a
maneuver or were poised for invasion. Cheney, then the Secretary of Defense, was
demanding a verdict, and the intelligence community was typically reluctant to
render one. Twenty-two hours before the invasion, McConnell correctly judged
that Saddam intended to move into Kuwait. His willingness to take a stand earned
Cheney's admiration. Soon after the onset of Desert Storm, the American-led
effort that repelled the Iraqi invasion, Powell had so much confidence in
McConnell's grasp of ground warfare that he charged him with delivering daily
press briefings. "He got so good that he started being parodied by 'Saturday
Night Live,' " Powell recalled. "That's when I knew we'd made a good decision."

In 1992, both Powell and Cheney sponsored McConnell's candidacy to become the
head of the N.S.A., even though McConnell had been promoted to a one-star
admiral only nine months earlier. By law, the N.S.A. position requires three
stars; thanks to his powerful patrons, McConnell received two additional ones.

When he took over the N.S.A., the Cold War had just ended and Congress had
decided to extract a "peace dividend" from the intelligence community. New
hiring came to a near-halt just as the security challenges became far more
diverse. There was a surfeit of Russian linguists but scarcely anyone who, for
instance, could speak Serbo-Croatian, during the breakup of the former
Yugoslavia, or the Creole dialect of Haiti, when the Clinton Administration sent
troops there to restore order. The agency had to hire Haitian menial laborers in
Washington and put them to work listening to intercepts in N.S.A. headquarters.

There was, however, an even greater challenge for the N.S.A. than hiring new
linguists. The Internet and e-mail were radically expanding the abilities of
terrorists and rogue states to communicate. "When I went there in '92, the
Internet existed -- it was called Arpanet -- but the World Wide Web did not,"
McConnell recalled. "Then the Web made the Internet accessible for everybody. My
world exploded."

One afternoon, as McConnell and I were walking back to his office from the
cafeteria, in the basement, we passed the security room, where a pair of guards
monitored half a dozen screens displaying a video of the building's grounds. The
setup was, by Hollywood standards, disappointingly low-tech. I asked McConnell
if he'd seen "The Bourne Ultimatum," in which Matt Damon's character is pursued
by CIA officers with instant global access to surveillance cameras, banking
transactions, and passport controls. "Yeah, we can't do that," McConnell
admitted. "That's all horse pucky."

The intelligence community has lagged significantly behind private industry in
the development and use of innovative technology. "There have been
breakthroughs," General Clapper, the Defense Under-Secretary, told me, citing
the use of cell phones and computers on the battlefield, although he
acknowledges that Al Qaeda has also made creative use of those technologies. By
comparison, during the Second World War the U.S. government developed advanced
radar and jet engines, and invented the atomic bomb. Six years of the war on
terror have brought nothing nearly as significant; instead, the intelligence
community has only warily appropriated models whose usefulness is blindingly
obvious. In 2006, the community adopted Intellipedia, a secure version of
Wikipedia. Blogging is now permitted on internal servers, giving contrarian
opinion a voice. There is a new "A-Space" -- based on sites such as MySpace and
Facebook -- in which analysts post their current projects as a way of creating
social networks. The Library of National Intelligence is an online digest of
official reports that will soon provide analysts who use it with tips, much the
way Amazon and iTunes offer recommendations to their customers. These
innovations have not yet made their way to the analysts and agents in the field,
however.

Despite such attempts to bring together resources and staff, the community still
relies on more than thirty online networks and eighty databases, most of which
are largely inaccessible to one another. After the 2004 reforms, which mandated
greater information sharing, the community turned to private industry for help
in creating the National Counter-Terrorism Center, which is in northern
Virginia, at an undisclosed location. An engineer from Walt Disney Imagineering,
the theme-park developer, designed it. "Even the chairs in the lunchroom are the
same ones we had at the Disney Studios," a former Disney executive, who now
works at the center, told me. "The only difference is these chairs don't have
the mouse ears." She was one of several former Disney employees who signed up
for government service after 9/11. The fantasy worlds that Disney creates have a
surprising amount in common with the ideal universe envisaged by the
intelligence community, in which environments are carefully controlled and
people are closely observed, and no one seems to mind.

The center has a futuristic videoconference room, featuring a table that can
change its shape and has pop-up computer consoles. Three times a day, analysts
gather around it to discuss the "threat matrix." The heart of the building is
the operations center, a dim room where analysts from various agencies are
illuminated by the lights of multiple computer monitors. When I was there, Fox
News was playing on a huge television screen at the front of the room.

Disney Imagineering also provided the O.DNI's first science-and-technology
director, Eric Haseltine, who joined the N.S.A. after September 11th. He was
dismayed by the lumbering pace of innovation, the absence of collaboration, and
the lack of thought about how new products might be employed. "Insufficient
attention was being paid to the end user," he said. Much of the intelligence
community is technophobic and is also hamstrung by security concerns. Only
recently have BlackBerrys made their way into some agencies, and many offices
don't even have Internet connections. "At Disney, we had to make technology work
for a four-year-old and a grandmother instantly, and be fun," Haseltine said.

Haseltine and his successor, Steve Nixon, have set up an intelligence version of
DARPA, the Defense Advanced Research Projects Agency, which was created in 1958,
after the Soviet launch of Sputnik, and led to the development of the Internet,
the Global Positioning System, night-vision goggles, Predator drones, and
Stealth aircraft. (After 9/11, DARPA also gave birth to Total Information
Awareness, a program designed to sort through vast sets of data about
individuals, including Americans, in order to identify potential terrorists.
Congress killed the program in 2003, but many of its capabilities were passed
along to other departments.) Like DARPA, the O.DNI version sponsors radical
innovation -- "game-changing breakthroughs," as Nixon puts it. The program has
only a few dozen employees, but it expects to collaborate with private
businesses, nonprofits, and universities. The most significant product of this
effort so far is Argus, a program that monitors foreign news reports and other
open sources looking for evidence of bird die-offs, crop failures, an unusual
number of death notices -- anything that could provide an early warning of an
epidemic, nuclear accident, or environmental catastrophe. The program, which
began in 2004, spotted the appearance of avian flu in 2006 and a recent outbreak
of Ebola in Angola. During flu season last year, the program tracked more than a
thousand socially disruptive diseases simultaneously. Argus now monitors a
million Web pages in twenty-eight languages and in nearly every country in the
world -- except the U.S., where such scrutiny would stir concerns about domestic
spying.

The intelligence community is also marshalling insights from the social
sciences. Psychologists, for example, are studying how terrorists behave when
they are attempting to avoid detection; agents will then be trained to look for
examples of such behavior. Nixon said, "We're also looking at virtual worlds and
gaming -- immersive environments in which to train agents," such as Second Life.
He conceded that such efforts were derivative. "Our brightest people are working
on things in the commercial environment. The problem is that we don't have a
lock on that. Technology is a two-edged sword for the intelligence community.
For instance, with biology, there could be a time in the not distant future when
teen-agers can design biological components just as they do computer viruses
today. That's why I think intelligence is as critical now as at any time in our
nation's history."

At the N.S.A., McConnell set up a new office to conduct information warfare
against potential enemies, but he eventually realized that America, with its
huge computer networks, was far more vulnerable to such attacks than its
adversaries. Ed Giorgio, a security consultant who worked at the N.S.A. under
McConnell, and who is the only person to have been both the nation's chief code
breaker and its chief code maker, said, "Early on, Mike had what many directors
of the N.S.A. have near the end of their tenure -- that is, an info-sec
epiphany. 'If only I had paid more attention to our own systems!' " Practically
nothing was being done to secure American computer networks, which the entire
world routinely depended upon. Information security became McConnell's passion.

In the nineties, new encryption software that could protect telephone
conversations, faxes, and e-mails from unwarranted monitoring was coming on the
market, but the programs could also block entirely legal efforts to eavesdrop on
criminals or potential terrorists. Under McConnell's direction, the N.S.A.
developed a sophisticated device, the Clipper Chip, with a superior ability to
encrypt any electronic transmission; it also allowed law-enforcement officials,
given the proper authority, to decipher and eavesdrop on the encrypted
communications of others. Privacy advocates criticized the device, though, and
the Clipper was abandoned by 1996. "They convinced the folks on the Hill that
they couldn't trust the government to do what it said it was going to do,"
Richard Wilhelm, who was in charge of information warfare under McConnell, says.

At Booz Allen, McConnell helped develop a program designed to protect the global
financial network. He and a team of veterans from the New York Stock Exchange
and information-technology officers from major financial institutions put
together a report that surveyed the system's vulnerabilities, and submitted it
to the President's Commission on Critical Infrastructure Protection. "Our study,
which was unclassified, was so compelling that they classified it!" McConnell
says, laughing. McConnell's team eventually won nearly three hundred million
dollars in government contracts for Booz Allen.

Every day, the Defense Department detects three million unauthorized probes of
its computer networks; the State Department fends off two million. Sometimes,
these turn into full-scale attacks, such as an assault last spring on the
Pentagon that required fifteen hundred computers to be taken off-line. In May,
the German government discovered that a spyware program had been planted inside
government computers in several key ministries, and also in the office of
Chancellor Angela Merkel. The Germans blamed the Chinese Army. The head of
Britain's M.I.5, the domestic intelligence agency, recently said that Chinese
and Russian spying was at such a high level that combatting it was diverting
government resources from counterterrorism. McConnell says that the U.S. faces
similar problems. "Chinese spying has gone up significantly, and Russian spying
hasn't decreased at all since the Cold War," he says. (A spokesman for the
Chinese consulate called the German and American accusations "preposterous.") Ed
Giorgio explained the situation to me: "There are forty thousand Chinese hackers
who are collecting intelligence off U.S. information systems and those of our
partners. How many of them can read English? Almost every one of them. If you
ask how many intelligence-gathering people are doing similar things in Mike's
vast empire, the answer would be tiny. And you won't find any who understand
Mandarin. We should never get into a hacking war with the Chinese."

One day in May, at a meeting with the President and several cabinet members,
McConnell asked for authority to wage information warfare against the tech-savvy
insurgents in Iraq. First, he described the three aspects of information-warfare
operations. Computer-network exploitation -- that is, the theft or manipulation
of information -- is done by the N.S.A. Computer-network attacks are the
province of the Department of Defense. The third element, computer-network
defense, was not the specialty of any agency. According to someone who was in
the Oval Office, McConnell then said, "If the 9/11 perpetrators had focussed on
a single U.S. bank through cyber-attack and it had been successful, it would
have an order-of-magnitude greater impact on the U.S. economy." The President
blanched and turned to the Secretary of the Treasury, Henry Paulson. "Is that
true, Hank?" he said. Paulson said that it was. The President then charged
McConnell to come up with a security strategy, not only for government systems
but also for American industry and private individuals.

One proposal of McConnell's Cyber-Security Policy, which is still in the draft
stage, is to reduce the access points between government computers and the
Internet from two thousand to fifty. "The real question is what to do about
industry," McConnell told me. "Ninety-five per cent of this is a private-sector
problem." He claimed that cyber-theft accounted for as much as a hundred billion
dollars in annual losses to the American economy. "The real problem is the
perpetrator who doesn't care about stealing -- he just wants to destroy." The
plan will propose restrictions that are certain to be unpopular. In order for
cyberspace to be policed, Internet activity will have to be closely monitored.
Ed Giorgio, who is working with McConnell on the plan, said that would mean
giving government the authority to examine the content of any e-mail, file
transfer, or Web search. "Google has records that could help in a cyber-
investigation," he said. Giorgio warned me, "We have a saying in this business:
'Privacy and security are a zero-sum game.' "

With the cyber-security initiative, McConnell is asking the country to confront
a dilemma: Americans will have to trust the government not to abuse the
authority it must have in order to protect our networks, and yet, historically,
the government has not proved worthy of that trust. "FISA reform will be a walk
in the park compared to this," McConnell said. "This is going to be a goat rope
on the Hill. My prediction is that we're going to screw around with this until
something horrendous happens."

For all McConnell's insistence on change, he often thinks like a traditional
spy. During one conversation, I asked McConnell, "Have we gotten meaningful
information through torture?"

"We don't torture," he responded automatically.

"O.K., through aggressive interrogation techniques."

" 'Aggressive' is your word," he said. "Have we gotten meaningful information?
You betcha. Tons! Does it save lives? Tons! We've gotten incredible information.
Khalid Sheikh Mohammed. K.S.M. No. 3. Go pull his testimony. A lot of what we
know about Al Qaeda and what we shut down came out of that." (The reliability of
the confession of Mohammed, who after sustained abuse claimed a role in more
than thirty criminal plots, has been widely questioned.) He peered over his
glasses. "And this was a test for Mike McConnell. When Abu Ghraib happened, my
view was that we had lost the moral high ground."

McConnell had not yet returned to government when the Abu Ghraib scandal broke,
but after becoming director of National Intelligence he received the still
secret protocol that the White House had devised to govern future
interrogations. Shortly after Attorney General Alberto Gonzales came into
office, in February, 2005, he issued an opinion endorsing the most brutal
interrogation techniques that the CIA had ever used. According to the Times, the
agency had learned some of these methods from Egyptian and Saudi intelligence
officials; others were drawn from old Soviet techniques. The methods included
stripping a suspect naked and placing him in a cold cell; manacling him in a
painful posture; subjecting him to deafening rock music; head slapping; and
waterboarding, an act of simulated drowning that was used in the Spanish
Inquisition. Any one of these techniques would likely violate the international
legal standards banning torture, such as the Geneva Conventions. The CIA had
used "special methods of questioning" on about thirty people, McConnell learned.

"I had to sign off on that program," McConnell told me. "The President said we
don't torture anyone, but I had to convince myself by going through the whole
process." He pored over the procedures that had been secretly authorized by the
Bush Administration. "I sat down with the doctors and the medical personnel who
oversee the process," he said. "Our policies are not torture."

I asked how he defined torture.

"There's a history of people making claims that it's not torture if you don't
force the failure of a major organ," McConnell said, referring to the infamous
2002 memo by John Yoo, a Justice Department lawyer, who argued that an
interrogation technique was torture only when it was as painful as organ failure
or death. "My view is, that's kind of absurd. It's pretty simple. Is it
excruciatingly painful to the point of forcing someone to say something because
of the pain?" McConnell leaned forward confidentially. "Now, how descriptive do
I want to be with you? I don't want to tell you everything, and why is that?
Look, these guys talk because, among other things, they're scared."

McConnell asserted that it was not difficult to evaluate the truthfulness of a
confession, even a coerced one. "And as soon as they start to talk we can tell
in minutes if they are lying," he said. "One, you know a lot. And you know when
someone is giving you information that is not connecting up to what you know.
You also know when to use a polygraph."

McConnell refused to specify what new methods had been approved for the CIA
"There are techniques to get the information, and when they get the information
it has saved lives," he said vaguely. "We have people walking around in this
country that are alive today because this process happened."

Couldn't the information be obtained through other means?

"No," McConnell said. "You can say that absolutely." He again cited the case of
Khalid Sheikh Mohammed. "He would not have talked to us in a hundred years.
Tough guy. Absolutely committed. He had this mental image of himself as a
warrior and a martyr. No way he would talk to us." Among the things that
Mohammed confessed to was the murder of Daniel Pearl. And yet few people
involved in the investigation of Pearl's death believe that Mohammed had
anything to do with the crime; another man, Ahmed Omar Saeed Sheikh, was
convicted of killing Pearl.

I mentioned McConnell's hero, General Powell, whose disastrous speech to the
United Nations, in February, 2003, made the case to the world for invading Iraq
-- a case founded on faulty intelligence. Part of Powell's presentation was
based on the testimony of Ibn al-Sheikh al-Libi, an Al Qaeda operative who was
captured by Pakistani forces in December, 2001. The Pakistanis turned him over
to the Americans. According to Jack Cloonan, a former F.B.I. agent involved in
the interrogation, Libi was providing useful and accurate intelligence until the
CIA took custody of him and placed him inside a plywood box for transport. He
was reportedly sent to Egypt and tortured. (An agency spokesman said, "The CIA
does not transport individuals anywhere to be tortured.") Libi allegedly told
his interrogators that the Iraqi military had trained two Al Qaeda associates in
chemical and biological warfare. This was the essence of Colin Powell's claim:
Saddam had weapons of mass destruction and was working with Al Qaeda. Neither
assertion was true. How could we ever trust information obtained under torture
when such methods had already led us into a catastrophic war?

"Now, wait a minute," McConnell said. "You allege torture. I don't know. Maybe
it was. I don't know." He wasn't in office at the time.

I asked what personal experiences informed his views.

McConnell recalled that before going to Vietnam he had participated in the
military's Survival, Evasion, Resistance and Escape program. "You had to go
through jungle training, get slapped around, knocked down, put in a box,
physically abused," he said. "That's to prepare you for what the enemy might do
to you." McConnell was thrown into a covered pit with a snake. There was no room
to stand or move around. "They would open up the thing and whack you a few times
and close it down," he said. "They beat us up reasonably well." However, he knew
that he was not going to die.

Waterboarding was not a part of the training when McConnell went through SERE,
although it sometimes has been. "You know what waterboarding is?" he asked. "You
lay somebody on this table, or put them in an inclined position, and put a
washcloth over their face, and you just drip water right here" -- he pointed to
his nostrils. "Try it! What happens is, water will go up your nose. And so you
will get the sensation of potentially drowning. That's all waterboarding is."

I asked if he considered that torture.

McConnell refused to answer directly, but he said, "My own definition of torture
is something that would cause excruciating pain."

Did waterboarding fit that description?

Referring to his teen-age days as a lifeguard, he said, "I know one thing. I'm a
water-safety instructor, but I cannot swim without covering my nose. I don't
know if it's some deviated septum or mucus membrane, but water just rushes in."
For him, he said, "waterboarding would be excruciating. If I had water draining
into my nose, oh God, I just can't imagine how painful! Whether it's torture by
anybody else's definition, for me it would be torture."

I queried McConnell again, later, about his views on waterboarding, since this
exchange seemed to suggest that he personally condemned it. He rejected that
interpretation. "You can do waterboarding lots of different ways," he said. "I
assume you can get to the point that a person is actually drowning." That would
certainly be torture, he said. The definition didn't seem very different from
John Yoo's. The reason that he couldn't be more specific, McConnell said, is
that "if it ever is determined to be torture, there will be a huge penalty to be
paid for anyone engaging in it."

In early September, German authorities arrested three Islamic radicals who were
allegedly planning terrorist strikes against an American military base and the
Frankfurt airport. In a hearing of the Senate Homeland Security and Governmental
Affairs Committee, on September 10th, Senator Joseph Lieberman asked McConnell
if the temporary FISA legislation that Congress had just passed contributed to
the arrests of those men. "Yes, sir, it did," McConnell replied, explaining
that, by monitoring the communications of the underground cell, the U.S. learned
that the men had already obtained explosive liquids. "The German authorities
decided to move," he said.

In fact, the information about the German cell had been obtained under the
previous FISA law. McConnell conceded the point two days later, after an article
in the Times questioned his claim.

Later that month, McConnell appeared before congressional committees, seeking to
make the provisional Protect America Act a permanent law. He underscored the
need for FISA reform by citing the example of the three kidnapped American
soldiers in Iraq. (The body of one serviceman has since been discovered; the
other two men remain missing.) In a hearing of the House Intelligence Committee,
McConnell asserted that bureaucratic delays caused by requesting a FISA warrant
had slowed the search in the critical moments after the soldiers' capture. This
argument made a deep impression on the legislators. Representative Heather
Wilson, of New Mexico, said to McConnell, "We had U.S. soldiers who were
captured in Iraq by insurgents and . . . we weren't able to listen to their
communications. Is that correct?" She asked, "If it was your kid, is that good
enough?"

I asked McConnell about the relevance of the soldiers' kidnapping, since the
FISA law allowed a three-day grace period, after the start of monitoring, to
obtain a warrant. "When people hear that story, they say, 'Well, don't you have
emergency authority?' " McConnell said. "Sure we do. But the emergency authority
still has to go through a process. Somebody's gotta approve it."

He refused to be more specific about what, if anything, had prevented the
intelligence community from monitoring the kidnappers immediately. "If you
understand it, and you write it down, then the bad guys understand it," he said
cryptically. "I've told you that this debate, this debate is going to cost
American lives." He tapped the table for emphasis. "This debate is going to cost
American lives!"

McConnell returned for another hearing on September 25th. Many Democrats
remained angry with him over his retreat from the compromise bill during the
August FISA debate. "You gave assurances that were not fulfilled, and made
agreements that were not kept," Senator Jay Rockefeller, of West Virginia, had
written him during the summer recess. Senator Sheldon Whitehouse, of Rhode
Island, echoed these complaints. "The stampede worked," he wrote in a note. "You
won. But you did so at a substantial price, one that will be paid in rancor,
suspicion, and distrust."

Such emotions were very much in evidence as McConnell sat at the witness table
in a wood-panelled hearing room. The glowering face of Senator Patrick Leahy, of
Vermont, loomed over the dais. Before administering the oath to McConnell, he
chided, "I hope we'll not hear any more irresponsible rhetoric about
congressional inquiries risking American lives."

Many Democrats clearly regretted passing the temporary FISA bill. Leahy, in his
introduction, said that the act "provides no meaningful check by the FISA court,
or by the Congress for that matter." Shortly after McConnell began his opening
statement, Leahy testily cut him off. He mentioned McConnell's mistaken
testimony about the relevance of the Protect America Act to the recent arrests
in Germany. "Now, I'm just wondering, why did you testify to something that was
false?" McConnell's ears turned bright red. He said that he had been referring
to FISA in general, not the new reforms.

Leahy mentioned an attorney in his home state who is representing a client
detained at the American-run prison in Guantánamo Bay, Cuba. "He's worried that
his calls regarding his client are being monitored by the government," Leahy
said. "He makes calls overseas, including to Afghanistan, on behalf of his
client.... You can see why people worry."

That month, McConnell's office was forced to make another embarrassing
disclosure. Silvestre Reyes, the House Intelligence Committee chairman, demanded
that the O.DNI release a time line of the kidnapping of the American soldiers in
Iraq. McConnell had earlier testified that it took "somewhere in the
neighborhood of twelve hours" to get the Attorney General to authorize an
emergency FISA wiretap on insurgents.

The O.DNI's time line showed that the soldiers were kidnapped south of Baghdad
on May 12th. Over the next two days, intelligence officials picked up signals
that they believed were coming from the kidnappers, and they received FISA
authorization to target the communications of insurgents. The record shows that
the intelligence community had immediately assigned all available assets to
search for the missing soldiers.

Then, on May 15th, at 10 A.M., leaders from several key intelligence agencies
met to discuss other options for "enhanced" surveillance. (McConnell would not
disclose what form of additional monitoring was being explored.) By 1 P.M., the
N.S.A. had determined that all the requirements for an emergency FISA
authorization had been met. But intelligence officials and lawyers continued to
debate minute legal issues for four more hours. At 5:15 P.M., hours after the
N.S.A. made its determination, and three days after the soldiers disappeared,
Justice Department lawyers delayed the process further by deciding that they
needed to obtain direct authorization from Attorney General Gonzales, who was in
Texas making a speech. Gonzales finally called back, at 7:18 P.M., and within
twenty minutes the enhanced surveillance began. It was not the FISA law that
retarded the intensified monitoring of the insurgents but, rather, internal
wrangling between the Justice Department and the intelligence community. That
said, the confusion over the limits of American law when applied to a desperate
situation in a foreign country underscored the need for legal clarity.

Despite his missteps, McConnell has so far succeeded in winning every important
point in the FISA debate. The bills that are now under consideration award the
intelligence community nearly as much authority as it enjoyed under the
President's secret wiretapping program, although with somewhat more supervision
and with the stipulation that warrants be obtained to monitor Americans inside
the country. The battle has harmed McConnell's reputation, however. "It is
convenient to say, 'McConnell was a bad guy, McConnell broke faith' -- it's easy
to say that because they lost!" McConnell said. "We went to the mat, and they
lost."

McConnell forced a debate upon the country that it was reluctant to have. In
agreeing to reform FISA along the lines that McConnell proposed, Congress has
acknowledged that technology has created new tools for terrorists and made a
salad out of existing laws that distinguish between foreign and domestic
intelligence. Instantaneous global communications, cell phones, the free flow of
commercial data, an untethered Internet, and the unprecedented ease of travel
have erased the once rigid distinction between what is native and what is
foreign. American law needed to reflect these changes. But the reforms leave it
up to the intelligence community to decide whether to monitor an American's
international communications without a warrant and what to do with that
knowledge. Moreover, by giving immunity to telecommunications companies for
future actions, the legislation pressures them to turn over to the government
any and all communication records, whenever they are asked for.

Unfortunately, intelligence officials have a poor record of safeguarding civil
liberties within the country, nor do Americans have any obvious recourse if they
learn that they have been spied upon.

When McConnell and I first met, he defended the President's warrantless-
wiretapping initiative. To many, the program seemed to violate the spirit of
FISA, because Americans were clearly involved in the conversations. McConnell
didn't see it that way. "There's no spying on Americans," he had told me. "The
issue was if a known bad guy, somebody associated with Al Qaeda, calls into the
United States, the President authorized the community to monitor that call. If
you have a different political point of view, you turn that into 'spying on
Americans.' "

"Let me make a disclosure," I said. "I have been monitored." I told him that,
while I was researching "The Looming Tower," a book about Al Qaeda, the F.B.I.
had come to my house, in Austin, Texas, to ask about some calls that I had made
from my home office. I also said that a source in the intelligence community had
read a summary of a telephone conversation that I had from my home with a source
in Egypt.

"I'm not surprised at that," McConnell said. "Because you were getting a phone
call from some telephone number that's associated with some known outfit --
O.K., that's monitored. In my view, it should be."

Actually, I had placed the call.

On another occasion, at McConnell's prompting, I described more fully what had
happened. After I published a Profile of Ayman al-Zawahiri, the deputy of bin
Laden, in this magazine, in February, 2002, I was asked by one of his relatives,
a respected architect in Cairo who had been a useful source, if I could learn
whether all of Zawahiri's children were dead. An F.B.I. source told me that they
were, and that there was no reason the family shouldn't know that. I relayed the
news to the architect. (The F.B.I. official turned out to be wrong.) Recently, a
source in the intelligence community told me that a summary of that conversation
was archived in an internal database. I was surprised, because the FISA law
stated that my part of the conversation should have been "minimized" -- redacted
or rendered anonymous -- because I am an American citizen.

"He's a terrorist, or he's associated with terrorists," McConnell said of my
Egyptian contact. "Now, if I'm targeting, I'm looking at his number. If he
places a call, I listen. If he gets called, I listen. I don't know who is going
to call him, but once I got it, I gotta deal with it. Turns out it is Larry
Wright. You would have been reported as 'U.S. Person 1.' You would never have
been identified, except if the F.B.I. learns that this unidentified U.S. person
is talking to a known terrorist. Then the F.B.I. would go in and request the
identity of U.S. 1. The N.S.A. would have to go through a process to determine
if the request was legitimate. So here's what I think -- I'm guessing. You
called a bad guy, the system listened, tried to sort it out, and they did an
intel report because it had foreign-intelligence value. That's our mission."

I then told him about the F.B.I. officials who visited my house. "They were
members of the Joint Terrorism Task Force," I said. They wanted to know about
phone calls made to a solicitor in England who represented several jihadis I had
interviewed for my book. "The actual calls involved her telling me, 'Please
don't talk to my clients,' " I said.

"Now if you ever became a target for surveillance, they would go get a warrant
and tap your telephone," McConnell said. "But they would have to have probable
cause to do that."

"What bothers me is that my daughter's name came up in this," I said. The agents
had told me they believed that she was the one making the calls. That was
ridiculous, but it placed her on the F.B.I.'s link chart as an Al Qaeda
connection. "Her name is not on any of our phones," I continued. "So how did her
name arise?"

"I don't know," McConnell admitted. "Maybe you mentioned her name."

"That troubles me," I said.

"It may be troublesome, it may not be," McConnell said. "You don't know."

"That would make a great target," McConnell observed in early October as his
government jet passed over the two cooling towers of a power plant in
Pennsylvania. I had joined him on a trip to speak to a group of government
contractors in Farmington, in the southwest corner of the state. The twin stacks
looked dismayingly vulnerable from the air, and I recalled that the 9/11
plotters had considered attacking nuclear plants before settling on the World
Trade Center, the Pentagon, and the Capitol.

In July, the O.DNI had released a National Intelligence Estimate titled "The
Terrorist Threat to the U.S. Homeland." The N.I.E., the most authoritative
document that the intelligence community produces, represents the agencies'
coördinated judgments about the various perils the nation faces. The reputation
of the N.I.E. was seriously damaged, though, by the notoriously mistaken 2002
assessment that Saddam Hussein had weapons of mass destruction. This N.I.E. had
been in the works for three years, an indication of how cautious the community
had become in issuing consequential new findings. The new report declared that
Al Qaeda was stronger than at any time since September 11th, and that it was
"likely to continue to focus on prominent political, economic, and
infrastructure targets with the goal of producing mass casualties, visually
dramatic destruction, significant economic aftershocks, and /or fear among the
U.S. population." It went on to say that the war in Iraq had helped the
terrorist organization find new recruits.

The report reflects the continuing failure to capture or kill bin Laden and
dismantle his organization. "The trail is cold," David Shedd, the deputy
director of the O.DNI for Policy, Plans and Requirements, admitted. "It's as
hard a target as we've ever faced."

McConnell bridled when I used the word "failure" to describe the bin Laden
situation. He said, "We're coming up on the sixth anniversary" -- of 9/11 --
"and we have not had a major terrorist event in the country." He claimed that
the intelligence community had stopped "many, many" attacks on America in that
span of time, but that most of those successful efforts were classified.

In late 2005, the director of the CIA at the time, Porter Goss, shuttered Alec
Station, a counterterrorism unit devoted exclusively to tracking down bin Laden.
The CIA now maintains that the unit was not actually disbanded but, rather,
folded into the Counter-Terrorism Center. And yet former agency officials
criticize the absence of a clear leader in the fight against Al Qaeda. "There's
a sense that there's not a quarterback," one of them told me. "Part of me
believes the people involved like this arrangement -- there's no one really to
blame."

Bruce Riedel, a fellow at the Brookings Institution, who had a long career in
the CIA and also served in the current Administration as the senior director for
Near East Affairs at the National Security Council, pointed to some recent
successes: the capture in Afghanistan of Mir Amal Kansi, who murdered two CIA
employees outside the gates of the agency in January, 1993, and the arrest in
Pakistan of Ramzi Yousef, the mastermind behind the February, 1993, bombing of
the World Trade Center. "They were in some ways harder targets," Riedel said.
"The reason we haven't captured bin Laden, I think, is Iraq. We took needed
resources and transferred them out of the hunt for bin Laden." This happened, he
told me, as early as the spring of 2002, when the Bush Administration was
already secretly preparing for war in Iraq. "Who in American government is now
responsible for the apprehension of Osama bin Laden?" Riedel asked. "There's the
director of the National Counter-Terrorism Center, but I doubt that's his job.
The DNI? Who does the President think is responsible?"

McConnell, when asked this question, said, "If the President picked a single
person, he'd probably point to Mike Hayden, the CIA director. At another level,
he might say Secretary of Defense. Depends on where bin Laden might be."

And where was that?

"He's in the border region of Pakistan and Afghanistan," McConnell replied.

McConnell was referring, in part, to the Federally Administered Tribal Areas, a
mountainous expanse about the size of Massachusetts. Between 2004 and 2006,
President Pervez Musharraf of Pakistan struck deals with the chieftains inside
the tribal areas which permitted them to police their own territory. Al Qaeda
and the Taliban quickly reconstituted themselves there. Capturing bin Laden,
then, would possibly mean invading Pakistan, with the likely consequence of
destabilizing an already volatile country. "You cannot indiscriminately attack a
sovereign nation," McConnell observed, though he promised that if American
officials pinpoint bin Laden's location "we'll bring it to closure."

For more than six years, Predator drones have crisscrossed the tribal areas,
scanning the terrain for anyone who might resemble bin Laden. In February, 2002,
a Predator near the border fired a Hellfire missile at a man because he was
tall, killing him. The United States has paid the Pakistani government more than
ten billion dollars since September 11th for its help in tracking down bin Laden
and other Al Qaeda leaders. But for the past four years the special relationship
with Pakistan has been unproductive; in a recent interview with CBS, President
Musharraf said of bin Laden, "We are not particularly looking for him." John
McLaughlin, the former deputy director of the CIA, told me, "It's not too hard
to figure out why we haven't gotten bin Laden. We're not there."

Moreover, there is the quandary of what to do with bin Laden if he was actually
captured. Killing him would only insure his "martyrdom" and seal his legacy;
putting him on trial grants him a priceless venue for promoting his cause and
invites acts of terror in response, including kidnappings designed to ransom the
Al Qaeda leader. Wayne Murphy, the assistant director of the F.B.I. for
Intelligence, told me that the radicalization of young Muslims will continue,
regardless of bin Laden's mortal fate. "In the end, I don't know if the benefits
of getting bin Laden would balance out," he said. "And I don't know if it buys
us anything. Think about what we just went through with Saddam Hussein."

There is another reason that we haven't captured bin Laden. "Given the quality
of Al Qaeda's operational security, you need trusted people who can penetrate
the organization," Thomas Fingar, the deputy director of the O.DNI for Analysis,
said. Yet the American intelligence community has traditionally been a white-
male enclave. Few agents can even pronounce Arabic names correctly. On September
11th, there were only eight fluent Arabic-speaking agents in the F.B.I.; now
there are nine. The U.S. government ranks language proficiency on a zero-to-five
scale, in which five is the equivalent of a native speaker. "Training a person
up to a four-plus is almost impossible," Philip Mudd, who is in charge of
staffing and training two thousand analysts for the F.B.I.'s National Security
Branch, told me. "The people you want are first-generation immigrants. But the
security guys will say, 'Wait!' "

Although McConnell recognizes the need to hire Americans with native foreign-
language skills, the Office of Management and Budget oversees the government
security-clearance process, which takes months or even years to complete,
especially for candidates who are intimately familiar with the cultures deemed
most critical in terms of America's safety. "We have mounted an unprecedented
effort to recruit affinity groups," Michael Morell, the associate deputy
director of the CIA, told me. The agency recently helped sponsor the Arab
International Festival, in Dearborn, Michigan, the heart of the American-Arab
community. But few of those possible recruits are willing to put their lives on
hold for a year or more as they await clearance. Michael Hayden, the CIA
director, told me that he could circumvent the security backlog in special
cases, and he has done so on several occasions.

McConnell, upon landing in Farmington, delivered his speech before the
government contractors. "There was a study done in 1955," he told them. "One
conclusion it came to was that it was an abomination that the government takes
fifteen months to clear someone! I'm happy to tell you we got that down to
eighteen months." The contractors laughed in recognition. "When I agreed to take
the DNI post, the first surprise was being told, 'Fill out the form,' "
McConnell continued. "I've been cleared for forty years! Then the agent shows
up. He wants to know if I am a Communist and do I advocate the violent overthrow
of the U.S."

That experience prompted McConnell to reflect on what causes members of the
intelligence community to turn into traitors. "Look back at all the spies we've
had in our history," he said. "About a hundred and thirty. How many did it for
money? A hundred and twenty-eight." He contrasted the government's security-
clearing process with the vetting that multinational banks do for American and
foreign employees -- the process can take less than ten working days. The
opportunities for fraud at such a bank are obvious, he noted: "If I can slow
down the movement of money by one single second, I can make millions through
arbitrage." How do companies prevent such losses? "Every keystroke can be
monitored." McConnell advocates a simplified clearance procedure that will take
a month or less. Under his plan, it will be much easier for first- and second-
generation Americans to enter the intelligence community. The trade-off will be
that they will be subjected to what he calls "life-cycle monitoring" -- that is,
constant surveillance.

Flying back to Washington after the speech in Pennsylvania, McConnell said, "I'm
trying to change the rules, saying if you want to be in this community, here are
the conditions of employment." He mentioned Jonathan Pollard, a former civilian
analyst for U.S. Naval Intelligence, who pleaded guilty to espionage in 1986.
"He transferred reams and reams and reams of data to the Israelis! Well, in
today's world that stuff is not sitting on a shelf somewhere -- it's in a
database. So if you want to transfer it you've got to print it or get an
electronic copy or whatever. That's what I mean by monitoring."

I asked McConnell if he believed that Al Qaeda was really the greatest threat
America faces.

"No, no, no, not at all," he said. "Terrorism can kill a lot of people, but it
can't fundamentally challenge the ability of the nation to exist. Fascism could
have done that. Communism could have. I think our issue going forward is more
engagement with the world in terms of keeping it on a reasonable path, so
another ism doesn't come along and drive it to one extreme or another. And we
have to have some balance in terms of equitable distribution of wealth,
containment of contagious disease, access to energy supplies, and development of
free markets. There are national-security ramifications to global warming."

He looked down at the patchwork quilt of the Pennsylvania countryside. His
thoughts quickly turned back to terrorism. "One of the things I worry about most
would be something like a pandemic, particularly if it could be weaponized, like
avian flu," he continued. "You could turn that into a human virus. You could
have fifty million to five hundred million deaths."

In 2005, the intelligence community informed President Bush that the greatest
danger in the Middle East came from Iran. An N.I.E. on the subject declared that
Iran intended to build a nuclear weapon. Some of that information came from a
purloined laptop containing drawings of an implosion device and information
about the history of the Iranian nuclear effort. But there was little supporting
evidence, and the President was frustrated that reliable intelligence was so
difficult to obtain. Soon afterward, the CIA created an Iran Operations
Division. There was already an Iran mission manager in the O.DNI, whose job was
to coördinate all the available resources in the community.

Those efforts were being folded into a new N.I.E. on Iran, which had been
demanded by Congress; the report, expected last spring, was mysteriously
delayed. In mid-November, McConnell said that he did not intend to declassify
any part of the N.I.E. On occasion, the key judgments of N.I.E. reports have
been made public, though they are generally kept secret so that analysts can
present their findings with candor. "But here's the real reason," McConnell
said. "If I have to inform the public, I am informing the adversary." He used
the example of code breakers in the Second World War. "On Nebraska Avenue, where
the Department of Homeland Security is located now, there was a girls' school.
The nation recruited many young women gifted in science and math to that girls'
school. They were brought in and told, 'If you ever tell anybody what you are
doing, you will go to prison for the rest of your life.' " The women operated
the machinery that deciphered the German naval code, shaving months off the war.
"Now, that is secrecy in its most powerful form," McConnell said. "Changed the
course of history, I would argue, for the good."

Secrecy imposes its own risks, however. After the collapse of the Soviet Union,
in 1991, Daniel Patrick Moynihan, who was a distinguished social scientist
before becoming a U.S. senator from New York, sought to understand why the
American intelligence community had failed to anticipate the event. Examining
the history of the Cold War, Moynihan saw a series of misguided adventures
steered by incorrect or poorly understood intelligence -- from the purported
"missile gap" that never existed to the confident assumption that the Cuban
people would rise up against Fidel Castro following an American-sponsored
invasion. In such instances, the community supported its findings with National
Intelligence Estimates or authoritative studies that led American policymakers
astray. In a 1998 book titled "Secrecy," Moynihan wrote that "too much of the
information was secret, not sufficiently open to critique by persons outside
government." Having served on the Senate Intelligence Committee, he had seen how
the community hoarded secrets and overvalued them to the point of excluding
common sense. He spoke of a "culture of secrecy" that inevitably gave rise to
conspiracy thinking and loyalty tests, and recommended that the CIA be shut
down.

McConnell strongly disputed Moynihan's analysis. Moreover, he told me that he
intended to prosecute anyone who leaks classified information, such as the Iran
N.I.E. That has rarely been done in the past, largely because a trial would have
the unwanted consequence of exposing secret sources and methods. "I think we
ought to step up and pay the price of going through an investigation, an
indictment, and a trial -- and, hopefully, from my point of view, a conviction,"
he said.

Like many reporters, I've received classified information in the past; it was
often full of errors. "Because it was secret, it had never been tested," I said.
"The secrecy was actually self-destructive."

"I disagree with that completely," McConnell said. "There's as much
misinformation and trash in the system on the outside as there is on the
inside." Many newspaper articles about him, he noted, contained errors of fact
and of interpretation. "So it doesn't surprise me that you would see a
classified document that had some incorrect information in it."

"You'd want to prosecute a guy that leaked something to me?"

"Absolutely," McConnell said. "He ought to be put in the slammer."

"You'd want to prosecute me as well?"

"Depending on what you did with it."

And yet, three weeks after our discussion, McConnell abruptly decided to
declassify the key judgments of the N.I.E., which was titled "Iran: Nuclear
Intentions and Capabilities." Among the revelations was that Iran had decided in
the fall of 2003 to halt a secret program to design nuclear weapons. This
finding reversed the 2005 assessment that had portrayed the Iranian regime as
determined to build a nuclear arsenal. If the former document had supported the
Bush Administration's aggressive posture toward Iran, the new one introduced a
confounding note of uncertainty. "We assess with moderate confidence that Tehran
had not restarted its nuclear program as of mid-2007," the N.I.E. stated, in the
probabilistic language of intelligence. "But we do not know whether it currently
intends to develop nuclear weapons."

The report came at a time when the Bush Administration was gathering
international support at the United Nations to strengthen sanctions against the
Iranian regime -- an effort that appears to have been quietly tabled. John
Bolton, the former U.S. Ambassador to the U.N., told the German magazine Der
Spiegel that the N.I.E. was "politics disguised as intelligence," and that the
release of the document amounted to a "quasi-putsch" by the intelligence
community. Many Democratic political figures in Washington, however, welcomed
McConnell's decision. "The key judgments show that the intelligence community
has learned its lessons from the Iraq debacle," Senator Rockefeller stated.
"This demonstrates a new willingness to question assumptions internally, and a
level of independence from political leadership that was lacking in the recent
past."

I asked McConnell what had changed his mind.

"The fear that, if we didn't release it, it would leak, and the Administration
at that point would be accused of hiding information," he said. He had a
personal conflict as well: the new information was at odds with his own
testimony about Iran before Congress, and with remarks that he had made in a
background press briefing. He knew how that might look if he kept the
intelligence classified.

The N.I.E. had been nearly completed when, in July, new information caused the
intelligence community to reëvaluate its findings. Iranian nuclear officials
were overheard complaining about the suspension of the military program.
Analysis of photographs taken during a 2005 visit to Iran's uraniumenrichment
plant, in Natanz, suggested that it was not designed for the high level of
enrichment required to make nuclear weapons.

"We had to stop and consider the new information, run it to ground, compare it
to hundreds of sources of data," McConnell said. "Does it correlate? Is it
misinformation? Is this a counterintelligence plan?" He compared the process to
a trial: the data are evaluated in terms of the level of confidence the
community places in their veracity. "We also examine what's missing," McConnell
continued. "What are the gaps? What would let us know more?" From July to late
November, Iran analysts vetted the information. "Every source is challenged,"
McConnell said. "We do alternative analysis. We take a set of smart people and
say, 'All right, your mission is to figure out why we got this wrong. What could
be an alternative?' We finish that, we have a Red Team. Red Team will attack and
see if there are weaknesses. Did we challenge our hypotheses in the right way?
Did we put too much emphasis on some evidence?" All this was done in the
reflected glare of the failures of the past. "This community is consumed with
not repeating the mistakes that were made in 2002," McConnell said. "I will tell
you, the tradecraft and the professionalism that went into this N.I.E. was
probably the best we have ever known."

While the intelligence community was digesting the new intelligence, the
Administration continued its belligerent rhetoric toward Iran. In October, Vice-
President Cheney warned, "We will not allow Iran to have a nuclear weapon," and
President Bush invoked the spectre of a Third World War if Iran continued its
supposed secret weapons program. Bush later said that McConnell had told him in
August that there was new intelligence about Iran: "He didn't tell me what the
information was. He did tell me it was going to take a while to analyze." Later,
Dana Perino, the White House press secretary, admitted that the President was
also told in the August meeting that Iran might have halted its nuclear-weapons
program. "The President could have been more precise in that language," Perino
told reporters. "But the President was being truthful."

McConnell wondered why, if Iran had a nuclear-weapons program up until the fall
of 2003, it suddenly placed it on hold. He said, "They're still pursuing fissile
material, they're still building and testing and weaponizing missiles, so why
did they do it?" He pointed to the invasion of Iraq earlier that year. "Although
we don't have senior Iranian officials telling us, 'We did this because we were
worried about where you crazy Westerners were going to go with this invasion,' I
believe, as an analyst, that certainly had some bearing on the decision."

On Wednesday, November 28th, McConnell went to the White House for the daily
briefing and shared the N.I.E.'s key judgments with President Bush. He took with
him the three principal analysts who had done the assessment. Cheney was also
present, as were members of the National Security Council. "We handed the
President the key judgments to read, which he skimmed through," McConnell said.
"You could see him thinking about what this meant, how do we manage this
information."

Secretary Gates was present at the meeting. "Mike was a little uneasy about
releasing it," he said. "He doesn't want his analysts to write key judgments
with the notion that they are going to be declassified." Gates said that he was
strongly in favor of releasing the findings, and, in the end, the decision was
unanimous.

The decision to declassify the key judgments was painful not only for the
Administration but also for the intelligence community, both because the new
N.I.E. refuted a previous assessment and because it inevitably raised the
question of whether this one was any more reliable. McConnell also worried that
the effect of the release would be to diminish the serious threat that he
believes Iran still poses. "What's the difference between being on hold and not
being on hold?" he asked rhetorically. "The Supreme Leader could say, 'Turn it
back on.' "

When we last spoke, McConnell said, "There's no doubt in this observer's mind
that Iran is on the path to get a nuclear weapon. It will force an arms race in
the region." That would place the U.S. in a dangerous spot, for it stands as the
security guarantor for many major oil producers.

I asked McConnell if he believed that, in releasing the key judgments of the
N.I.E., he had compromised sources and methods, which was the reason he had
given previously for withholding the document. "Our job is to steal the secrets
of foreign governments, or foreign terrorist organizations, and so the more they
know about the effectiveness of our tradecraft the more difficult it's going to
be for us," he said. "I think putting it out was the right thing, but, as the
leader of this community, I've got to tell you, we're going to need better
information in the future. We got to go back and verify, 'Did they re-start it?'
For the community I represent, I just made our life a lot harder."

The clock on his desk showed that he had four hundred and two days, fifteen
hours, seventeen minutes, and forty-five seconds left.

*


Wall Street Journal --

January 19, 2008

TERRORIST TORT TRAVESTY

by John Yoo

http://online.wsj.com/article/SB120070333580301911.html

War is a continuation of politics by other means, the German strategist Carl von
Clausewitz famously observed in his 19th-century treatise, "On War." Clausewitz
surely could never have imagined that politics, pursued through our own courts,
would be the continuation of war.

Last week, I (a former Bush administration official) was sued by Jose Padilla --
a 37-year-old al Qaeda operative convicted last summer of setting up a terrorist
cell in Miami. Padilla wants a declaration that his detention by the U.S.
government was unconstitutional, $1 in damages, and all of the fees charged by
his own attorneys.
Jose Padilla

The lawsuit by Padilla and his Yale Law School lawyers is an effort to open
another front against U.S. anti-terrorism policies. If he succeeds, it won't be
long before opponents of the war on terror use the courtroom to reverse the
wartime measures needed to defeat those responsible for killing 3,000 Americans
on 9/11.

On Thursday, a federal judge moved closer to sentencing Padilla to life in
prison. After being recruited by al Qaeda agents in the late 1990s, Padilla left
for Egypt in 1998 and reached terrorist training camps in Afghanistan in 2000.
American officials stopped him at Chicago O'Hare airport in 2002, based on
intelligence gained from captured al Qaeda leaders that he was plotting a dirty
bomb attack.

President Bush declared Padilla an enemy combatant and ordered him sent to a
naval brig in South Carolina. After a federal appeals court rejected Padilla's
plea for release, the government transferred him to Miami for trial for al Qaeda
conspiracies unrelated to the dirty bomb plot. Federal prosecutors described
Padilla as "a trained al-Qaeda killer," and a jury convicted him of conspiring
to commit murder, kidnapping and maiming, and of providing material support to
terrorists.

Now Padilla and his lawyers are trying to use our own courts to attack the
government officials who stopped him. They claim that the government cannot
detain Padilla as an enemy combatant, but instead can only hold and try him as a
criminal. Padilla alleges that he was abused in military custody -- based
primarily on his claim that he was held in isolation and not allowed to meet
with lawyers.

But enemy prisoners in wartime never before received the right to counsel or a
civilian trial because, as the Supreme Court observed in 2004, the purpose of
detention is not to punish, but to prevent the enemy from returning to the
fight.

Under Padilla's theory, the U.S. is not at war, so any citizen killed or
captured by the CIA or the military can sue. In November 2002, according to
press reports, a Predator drone killed two al Qaeda leaders driving in the Yemen
desert. One was an American, Kamal Derwish, who was suspected of leading a
terrorist cell near Buffalo. If Padilla's lawsuit were to prevail, Derwish's
survivors could sue everyone up the chain of command -- from the agent who
pressed the button, personally -- for damages.

Padilla's complaints mirror the left's campaign against the war. To them, the
9/11 attacks did not start a war, but instead were simply a catastrophe, like a
crime or even a natural disaster. They would limit the U.S. response only to
criminal law enforcement managed by courts, not the military. Every terrorist
captured away from the Afghanistan battlefield would have the right to counsel,
Miranda warnings, and a criminal trial that could force the government to reveal
its vital intelligence secrets.

America used this approach in the 1990s with al Qaeda. It did not work. Both the
executive and legislative branches rejected this failed strategy. In the first
week after 9/11, Congress passed a law authorizing the use of military force
against any person, group or nation connected to the attacks, and recognized the
President's constitutional authority "to deter and prevent acts of international
terrorism against the United States."

In the spring of 2002, I was a Justice Department lawyer asked about the
legality of Padilla's detention. There is ample constitutional precedent to
support the detention of a suspected al Qaeda agent, even an American citizen,
who plans to carry out terrorist attacks on our soil. During World War II, eight
Nazi saboteurs secretly landed in New York to attack factories and plants. Two
of them were American citizens.

After their capture, FDR sent them to military detention, where they were tried
and most of them executed. In Ex Parte Quirin, the Supreme Court upheld the
detention and trial by military authorities of American citizens who "associate"
with "the military arm of the enemy" and "enter this country bent on hostile
acts." If FDR were president today, Padilla might have fared far worse than he
has.

None of that matters to the anti-war left. They failed to beat President Bush in
the 2004 elections. Their efforts in Congress to repeal the administration's
policies have gone nowhere. They lost their court challenges to Padilla's
detention. The American public did not buy their argument that the struggle
against al Qaeda is not really a war.

So instead they have turned to the tort system to harass those who served their
government in wartime. I am not the only target. The war's critics have sued
personally Donald Rumsfeld, John Ashcroft, Robert Gates, Paul Wolfowitz and
other top government officials for their decisions in the war on terrorism.
Other lawsuits have resorted to the courts to attack the telecommunications
companies that helped the government intercept suspected terrorist calls.

It is easy to understand why CIA agents, who are working on the front lines to
protect the nation from attack, are so concerned about their legal liability
that they have taken out insurance against lawsuits.

Worrying about personal liability will distort the thinking of federal
officials, who should be focusing on the costs and benefits of their decisions
to the nation as a whole, not to their own pockets. Even in the wake of
Watergate, the Supreme Court recognized that government decisions should not be
governed by the tort bar.

In a case about warrantless national security wiretaps ordered by Nixon's
attorney general, John Mitchell, the court declared that executive branch
officials should benefit from qualified immunity. Officials cannot be sued
personally unless they had intentionally violated someone's clearly established
constitutional rights.

The Padilla case shows that qualified immunity is not enough. Even though
Supreme Court precedent clearly permitted Padilla's detention, he and his
academic supporters can still file harassing lawsuits that promise high
attorneys' fees. The legal system should not be used as a bludgeon against
individuals targeted by political activists to impose policy preferences they
have failed to implement via the ballot box.

The prospect of having to waste large sums of money on lawyers will deter
talented people from entering public service, leading to more mediocrity in our
bureaucracies. It will also lead to a risk-averse government that doesn't
innovate or think creatively. Government by lawsuit is no way to run, or win, a
war.

[ Mr. Yoo is a professor of law at the University of California at Berkeley and
a visiting scholar at the American Enterprise Institute. He is the author of
"War By Other Means" (Grove/Atlantic 2006). ]

*


New York Times --

January 17, 2008

ACCOUNT OF CIA TAPES IS CHALLENGED

by Mark Mazzetti and Scott Shane

http://www.nytimes.com/2008/01/17/washington/17intel.html

WASHINGTON -- The former Central Intelligence Agency official who authorized the
destruction in 2005 of videotapes documenting harsh interrogation of detainees
from Al Qaeda gave the order despite apparently being directed to preserve the
tapes, the senior Republican on the House Intelligence Committee said Wednesday.

Representative Peter Hoekstra, Republican of Michigan, said Jose A. Rodriguez
Jr., head of the CIA's clandestine service at the time, had not "gotten
authority from anyone" to destroy the tapes.

"Matter of fact, it appears that he got direction to make sure the tapes were
not destroyed," he said.

Mr. Hoekstra spoke after hearing testimony from John A. Rizzo, the CIA's top
lawyer, who addressed the committee on Wednesday during a closed session lasting
nearly four hours.

Mr. Hoekstra did not provide details, including who may have told Mr. Rodriguez
not to destroy the tapes. The lawmaker said it was important to have Mr.
Rodriguez testify before the committee to get his version of events.

A lawyer for Mr. Rodriguez, Robert S. Bennett, challenged Mr. Hoekstra's
comments about what agency officials told his client.

"Nobody, to our knowledge, ever instructed him not to destroy the tapes," Mr.
Bennett said. "Had the director or deputy director or general counsel told him
not to destroy the tapes, they would not have been destroyed."

Mr. Rizzo was the first CIA official with direct knowledge of the events
surrounding the destruction of the tapes to appear before the House Intelligence
Committee, which is in the midst of an investigation that could last for several
months. Gen. Michael V. Hayden, the CIA director, testified before the committee
last month, and lawmakers have said they intend to call several current and
former officials from the CIA and the White House to appear before the House
panel.

A federal prosecutor, John H. Durham, is currently leading a separate criminal
investigation to determine whether Mr. Rodriguez or other officials may have
broken any laws by destroying the tapes or concealing them from the courts and
the national Sept. 11 commission. The tapes showed agency operatives using harsh
interrogation methods on two Qaeda detainees, Abu Zubaydah and Abd al-Rahim al-
Nashiri.

Agency officers began taping detainees in April 2002 and stopped the videotaping
by the end of that year out of concern the tapes could leak and put CIA
operatives at physical and legal risk.

Mr. Rodriguez has told former colleagues that he consulted with two CIA lawyers
before giving the destruction order. Several intelligence officials have said
that the lawyers, Steven Hermes and Robert Eatinger, told Mr. Rodriguez that he
had the authority to destroy the tapes and that it would not be illegal to do
so.

The intelligence officials cautioned, however, that the lawyers did not give Mr.
Rodriguez approval to dispose of the tapes and that senior agency officials
expected him to get their permission before acting. Senior White House officials
were consulted about the tapes several times over three years, but it remains
unclear if anyone at the White House favored the destruction of the tapes.

Mr. Rodriguez, who is under subpoena from the House committee, has declined to
testify without a grant of immunity.

Mr. Bennett acknowledged that Mr. Rodriguez did not seek permission from Mr.
Rizzo, Porter J. Goss, then the CIA director, or from any other CIA official
before giving the destruction order.

Representative Silvestre Reyes, the Texas Democrat who is chairman of the
intelligence committee, called it "simply unacceptable" that members of Congress
were not informed promptly after the videotapes were destroyed.

*


Philadelphia Inquirer --

January 16, 2008

TERROR SUSPECTS ARE WAGING 'LAWFARE' ON U.S.

by John Yoo

http://www.philly.com/inquirer/opinion/
20080116_Terror_suspects_are_waging_lawfare_on_U_S_.html

Walk down Broad Street and you pass by a brown mansion, squeezed in between a
music store and a Banana Republic. With its statues of proud soldiers in front,
the Union League stands as a symbol of the sacrifices necessary to win the Civil
War.

After being sued by convicted terrorist Jose Padilla, I wonder whether our
nation today has the same unity and tenacity to defeat the great security
challenge of our day, the rise of fundamentalist Islamic terrorism. Even as our
brave young soldiers fight in Afghanistan and Iraq, and our intelligence agents
succeed in disrupting follow-ups to the 9/11 attacks, terrorists are using our
own legal system as a weapon against us.

They use cases such as Padilla's to harass the men and women in our government,
force the revelation of valuable intelligence and press novel theories that have
failed at the ballot box and before the president and Congress.

"Lawfare" has become another dimension of warfare.

Padilla is no innocent. Last summer a Miami jury convicted him of participating
in an al-Qaeda support cell in the United States. Prosecutors now are asking the
court to sentence Padilla to life in prison. The conviction did not even address
his detention in 2002 at Chicago's O'Hare Airport on allegations that he had
returned from Afghanistan to carry out a "dirty" bomb attack on a major U.S.
city. According to the Bush administration at the time, Padilla had received the
green light from Khalid Shaikh Mohammed, the planner of the 9/11 attacks.

At the time, I was an official in the Bush administration Justice Department
working on the response to the 9/11 attacks. Our lives had taken very different
paths. Padilla had turned to drugs and crime in Chicago and was convicted of
murder as a juvenile. He became a radical follower of fundamentalist Islam, left
for Egypt in 1998 and journeyed in 2000 to Afghanistan, where he trained to
become a terrorist at al-Qaeda and Taliban camps.

I had the good fortune to grow up in the Philadelphia area, attend the Episcopal
Academy for high school, and go off to Harvard for college and Yale for law
school. I studied and eventually taught war powers, a subject that always
interested me because of Philadelphia's rich history with the Revolutionary and
Civil Wars and my family's origins in South Korea, the scene of one of America's
more recent conflicts.

I worked on the legality of the decision to place Padilla in the hands of
military authorities in June 2002. The 9/11 attacks on our nation's capital and
financial center, and the loss of 3,000 American lives, placed the United States
at war with al-Qaeda, a fact that Padilla's lawyers do not accept. They have
always asserted that Padilla could be considered only a criminal defendant and
must enjoy the benefits of the civilian criminal-justice system.

They are wrong. Both the president and Congress have agreed that the United
States is at war, and Congress passed an authorization for using force against
any groups, nations or people responsible for the 9/11 attacks. Capturing
prisoners has been a permanent feature of war throughout human history; hundreds
of thousands were detained during World War II alone. Sometimes, unfortunately,
the enemy has included U.S. citizens - in the Civil War, every Confederate
soldier was a citizen, and in World War II some Americans fought in the Axis
armed forces. They never had a right to sue the soldiers who caught them.

We are in a difficult war against an unprecedented enemy. Its members
deliberately disguise themselves as civilians and carry out surprise attacks on
innocent civilian targets. They do not have a territory, city or population.
They are trained to claim abuse when captured and to appeal to the legal system
to tie up democracies in knots.

It is a difficult job for our government and armed forces to adapt the rules for
war to such an unconventional, non-state opponent.

But Padilla and his Yale Law School attorneys think that these decisions are
better second-guessed by plaintiffs' lawyers and judges rather than our elected
leaders. They challenged Padilla's detention and lost in the federal Court of
Appeals in South Carolina, before the government sent him to Miami for
prosecution.

Think about what it would mean if Padilla were to win. Government officials and
military personnel have to devise better ways to protect the country from more
deadly surprise attacks. Padilla and his lawyers want them, from the president
down to lowest private, to worry about being sued when they make their
decisions. Officials will worry about all of the attorneys' fees they will rack
up to defend themselves from groundless lawsuits.

My situation is better than most, since I am a lawyer with many lawyer friends
(that is not the oxymoron it seems). I can fend for myself; fine attorneys have
volunteered to represent me, and the government may defend me. But what about
the soldiers, agents and officers who have to respond to the next 9/11 or
foreign threat? They will have to worry about personal liability, hiring
lawyers.

Would we have wanted President Abraham Lincoln to worry about his personal
liability for issuing the Emancipation Proclamation freeing the slaves (done on
his sole authority as commander-in-chief)?

If so, then we will have a government that will avoid any and all risks, shun
making any move that is not an exact repetition of locked-in procedure of 20th-
century vintage, and keep plodding along the same path regardless of
contemporary circumstances. These are exactly the conditions that make a nation
susceptible to a surprise attack, whether a Pearl Harbor or a 9/11.

[ John Yoo, a former Bush administration Justice Department official, is the
author of "War by Other Means." ]

*


Washington Post --

January 16, 2008

STATION CHIEF MADE APPEAL TO DESTROY CIA TAPES
Lawyer Says Top Official Had Implicit Approval

By Joby Warrick and Walter Pincus

http://www.washingtonpost.com/wp-dyn/content/
article/2008/01/15/AR2008011504090.html

In late 2005, the retiring CIA station chief in Bangkok sent a classified cable
to his superiors in Langley asking if he could destroy videotapes recorded at a
secret CIA prison in Thailand that in part portrayed intelligence officers using
simulated drowning to extract information from suspected al-Qaeda members.

The tapes had been sitting in the station chief's safe, in the U.S. Embassy
compound, for nearly three years. Although those involved in the interrogations
had pushed for the tapes' destruction in those years and a secret debate about
it had twice reached the White House, CIA officials had not acted on those
requests. This time was different.

The CIA had a new director and an acting general counsel, neither of whom sought
to block the destruction of the tapes, according to agency officials. The
station chief was insistent because he was retiring and wanted to resolve the
matter before he left, the officials said. And in November 2005, a published
report that detailed a secret CIA prison system provoked an international
outcry.

Those three circumstances pushed the CIA's then-director of clandestine
operations, Jose A. Rodriguez Jr., to act against the earlier advice of at least
five senior CIA and White House officials, who had counseled the agency since
2003 that the tapes should be preserved. Rodriguez consulted CIA lawyers and
officials, who told him that he had the legal right to order the destruction. In
his view, he received their implicit support to do so, according to his
attorney, Robert S. Bennett.

In a classified response to the station chief, Rodriguez ordered the tapes'
destruction, CIA officials say. The Justice Department and the House
intelligence committee are now investigating whether that deed constituted a
violation of law or an obstruction of justice. John A. Rizzo, the CIA's acting
general counsel, is scheduled to discuss the matter in a closed House
intelligence committee hearing scheduled for today.

According to interviews with more than two dozen current and former U.S.
officials familiar with the debate, the taping was conducted from August to
December 2002 to demonstrate that interrogators were following the detailed
rules set by lawyers and medical experts in Washington, and were not causing a
detainee's death.

The principal motive for the tapes' destruction was the clandestine operations
division's worry that the tapes' fate could be snatched out of their hands, the
officials said. They feared that the agency could be publicly shamed and that
those involved in waterboarding and other extreme interrogation techniques would
be hauled before a grand jury or a congressional inquiry -- a circumstance now
partly unfolding anyway.

"The professionals said that we must destroy the tapes because they didn't want
to see the pictures all over television, and they knew they eventually would
leak," said a former agency official who took part in the discussions before the
tapes were pulverized. The presence of the tapes in Bangkok and the CIA's
communications with the station chief there were described by current and former
officials.

Congressional investigators have turned up no evidence that anyone in the Bush
administration openly advocated the tapes' destruction, according to officials
familiar with a set of classified documents forwarded to Capitol Hill. "It was
an agency decision -- you can take it to the bank," CIA Director Michael V.
Hayden said in an interview on Friday. "Other speculations that it may have been
made in other compounds, in other parts of the capital region, are simply
wrong."

Many of those involved recalled conversations in which senior CIA and White
House officials advised against destroying the tapes, but without expressly
prohibiting it, leaving an odd vacuum of specific instructions on a such a
politically sensitive matter. They said that Rodriguez then interpreted this
silence -- the absence of a decision to order the tapes' preservation -- as a
tacit approval of their destruction.

"Jose could not get any specific direction out of his leadership" in 2005, one
senior official said. Word of the resulting destruction, one former official
said, was greeted by widespread relief among clandestine officers, and Rodriguez
was neither penalized nor reprimanded, publicly or privately, by then-CIA
Director Porter J. Goss, according to two officials briefed on exchanges between
the two men.

"Frankly, there were more important issues that needed to be focused on, such as
trying to preserve a critical [interrogation] program and salvage relationships
that had been damaged because of the leaks" about the existence of the secret
prisons, said a former agency official familiar with Goss's position at the
time.

Rodriguez, whom the CIA honored with a medal in August for "Extraordinary
Fidelity and Essential Service," declined requests for an interview. But his
attorney said he acted in the belief that he was carrying out the agency's
stated intention for nearly three years. "Since 2002, the CIA wanted to destroy
the tapes to protect the identity and lives of its officers and for other
counterintelligence reasons," Bennett said in a written response to questions
from The Washington Post.

"In 2003 the leadership of intelligence committees were told about the CIA's
intent to destroy the tapes. In 2005, CIA lawyers again advised the National
Clandestine Service that they had the authority to destroy the tapes and it was
legal to do so. It is unfortunate," Bennett continued, "that under the pressure
of a Congressional and criminal investigation, history is now being revised, and
some people are running for cover."

Recorded on the tapes was the coercive questioning of two senior al-Qaeda
suspects: Zayn al-Abidin Muhammed Hussein, known as Abu Zubaida, and Abd al-
Rahim al-Nashiri, who were captured by U.S. forces in 2002. They show Zubaida
undergoing waterboarding, which involved strapping him to a board and pouring
water over his nose and mouth, creating the sensation of imminent drowning.
Nashiri later also underwent the same treatment.

Some CIA officials say the agency's use of waterboarding helped extract
information that led to the capture of other key al-Qaeda members and prevented
attacks. But others, including former CIA, FBI and military officials, say the
practice constitutes torture.

The destruction of the tapes was not the first occasion in which Rodriguez got
in trouble for taking a provocative action to help a colleague. While serving as
the CIA's Latin America division chief in 1996, he appealed to local Dominican
Republic authorities to prevent a childhood friend, and CIA contractor, who had
been arrested in a drug investigation, from being beaten up, according to a
former CIA official familiar with the episode.

Such an intervention was forbidden by CIA rules, and so Rodriguez was stripped
of his management post and reprimanded in an inspector general's report. But
shortly after the reprimand, he was named station chief in Mexico City and,
after the Sept. 11, 2001, terrorist attacks, was promoted to deputy director of
the fast-expanding counterterrorism center. He served under the center's
director then, J. Cofer Black, who had been his subordinate in the Latin America
division.

When Black -- who played a key role in setting up the secret prisons and
instituting the interrogation policy -- left the CIA in December 2002, Rodriguez
took his place. Colleagues recall that even in the deputy's slot, Rodriguez was
aware of the videotaping of Zubaida, and that he later told several it was
necessary so that experts, such as psychologists not present during
interrogations, could view Zubaida's physical reactions to questions.

By December 2002, the taping was no longer needed, according to three former
intelligence officials. "Zubaida's health was better, and he was providing
information that we could check out," one said.

An internal probe of the interrogations by the CIA's inspector general began in
early 2003 for reasons that have not been disclosed. In February of that year,
then-CIA General Counsel Scott W. Muller told lawmakers that the agency planned
to destroy the tapes after the completion of the investigation. That year, all
waterboarding was halted; and at an undisclosed time, several of the inspector
general's deputies traveled to Bangkok to view the tapes, officials said.

In May 2004, CIA operatives became concerned when a Washington Post article
disclosed that the CIA had conducted its interrogations under a new, looser Bush
administration definition of what legally constituted torture, several former
CIA officials said. The disclosure sparked an internal Justice Department review
of that definition and led to a suspension of the CIA's harsh interrogation
program.

The tapes were discussed with White House lawyers twice, according to a senior
U.S. official. The first occasion was a meeting convened by Muller and senior
lawyers of the White House and the Justice Department specifically to discuss
their fate. The other discussion was described by one participant as "fleeting,"
when the existence of the tapes came up during a spring 2004 meeting to discuss
the Abu Ghraib prison abuse scandal, the official said.

Those known to have counseled against the tapes' destruction include John B.
Bellinger III, while serving as the National Security Council's top legal
adviser; Harriet E. Miers, while serving as the top White House counsel; George
J. Tenet, while serving as CIA director; Muller, while serving as the CIA's
general counsel; and John D. Negroponte, while serving as director of national
intelligence.

Hayden, in an interview, said the advice expressed by administration lawyers was
consistent. "To the degree this was discussed outside the agency, everyone
counseled caution," he said. But he said that, in 2005, it was "the agency's
view that there were no legal impediments" to the tapes' destruction. There also
was "genuine concern about agency people being identified," were the tapes ever
to be made public.

Hayden, who became CIA director last year, acknowledged that the questions
raised about the tapes' destruction, then and now, are legitimate. "One can ask
if it was a good idea, or if there was a better way to do it," he said. "We are
very happy to let the facts take us where they will."

[ Staff researcher Julie Tate contributed to this report. ]

*


Jurist --

January 15, 2008

BREAKING THE CODE: A CALL FOR CANDOR AT THE CIA

by John Radsan

http://jurist.law.pitt.edu/forumy/2008/01/
breaking-code-call-for-candor-at-cia.php

A month before the news broke about the destruction of CIA tapes, I was back in
Washington to speak on a panel. After the event, one of my former colleagues
came over to discuss something in hushed tones. ("Jay", let's call him, used to
be the top lawyer at the CIA's Counterterrorist Center.) He made it clear to me
that he disapproved of those who broke the Company's code of silence. "Be
careful," was his message.

As justification, I told Jay that former officials should enlighten the public
about intelligence issues. Then, as a jibe, I said that current officials should
do more than say "no comment" about every story. Jay nodded in a way I wishfully
interpreted as an acknowledgement. But since then, perhaps because he was
involved in the tapes, Jay keeps the code. Undeterred, I offer some tidbits --
"unclassified" -- that Jay doesn't want you to know.

· THE CIA WAS ALREADY UNDER INVESTIGATION.

Attorney General Michael Mukasey, on January 2, announced a full criminal
investigation into the tapes. Before his announcement, the Justice Department
(DOJ) and the CIA's Inspector General (IG) had reviewed the matter for close to
a month in a "preliminary inquiry." But that was not the first time DOJ and the
IG had joined forces. According to the press, DOJ / IG have been investigating
many other CIA programs.

An investigation that spanned the 9/11 divide was "Peru shootdown." In April
2001, missionaries traveling in a float plane in Peru were mistaken for drug
traffickers and shot from the sky. Two people died. Although Peruvian officers
operated the plane that fired the shots, they acted on information from another
plane, staffed by CIA contractors.

The joint DOJ/IG investigation into the Peru incident took several years while
they determined whether the drug interdiction program had deviated from
President Clinton's original plan. Plus, DOJ/IG investigated whether American
officials had made any false statements about the April 2001 shootdown. One
irony from Peru is that the investigation was most intense at the same time the
White House was assuring the CIA it had nothing to fear from being aggressive
after 9/11.

Two years ago, DOJ announced that it had closed the criminal case into Peru. But
the IG investigation probably continues. Although our government paid millions
to settle with the Peru survivors, many CIA officers still worry about the IG's
final report. They hope this report, due out soon, will not be as tough as the
IG's findings about 9/11, released a few months ago.

In any event, the CIA's Inspector General, John Helgerson, perhaps learning from
the complications on Peru, will not assist DOJ on the criminal investigation of
the tapes. This time DOJ will try to do things without him. And time will tell
whether a career prosecutor from Connecticut completes the investigation or
whether Mukasey succumbs to those who want a special prosecutor.

· THERE ONCE WAS A LAWYER NAMED MULLER.

DOJ, of course, is interested in John Rizzo, the CIA's top lawyer. Rizzo is set
to testify before the House Intelligence Committee on January 16. A major
question is whether he participated in, or was aware of, the tapes' destruction
in 2005. So far, however, less attention has been paid to Scott Muller, the
CIA's General Counsel from 2002-2004.

Muller, having litigated at Davis Polk before he joined the Agency, viewed his
job through the lens of a criminal defense lawyer. Rather than always serve the
Agency's best interests, Muller incorporated the personal agendas of senior
officers. For instance, some complained at DOJ -- and within the IG -- that
Muller improperly applied pressure to shut down the Peru investigation. Thus,
Muller's aggressiveness on Peru parallels reports of his aggressiveness, far
earlier than 2005, in seeking to destroy the tapes. In all, DOJ should not
forget what Muller has done.

· RIZZO ADDS SO MUCH IRONY.

Even though Rizzo was not central in approving the CIA's interrogation program,
he paid the political price. During his confirmation hearing in the summer of
2007, the Senate intelligence committee was dissatisfied that he did not disavow
the Justice Department's 2002 "torture memorandum." Rizzo, realizing the votes
were not there for him, withdrew his nomination.

Now, less than a year after the confirmation debacle, Rizzo is trusted as
"Acting" General Counsel to clean up the mess concerning the tapes with DOJ, the
IG -- and with the oversight committees. For all, Rizzo is both intermediary and
a subject of investigation.

At the CIA, so much depends on the nuances. One person's hypocrisy is another
person's irony. And Jay's code has become this man's call for a bit of candor.

[ John Radsan, associate professor at William Mitchell College of Law, is a
former federal prosecutor and a former assistant general counsel at the CIA from
2002-2004 ]

*


New York Times --

January 7, 2008

DEFYING US PLAN, PRISON EXPANDS IN AFGHANISTAN

by Tim Golden

http://www.nytimes.com/2008/01/07/world/asia/07bagram.html

WASHINGTON -- As the Bush administration struggles for a way to close the
military prison at Guantanamo Bay, Cuba, a similar effort to scale down a larger
and more secretive American detention center in Afghanistan has been troubled by
political, legal and security problems, officials say.

The American detention center, established at the Bagram military base as a
temporary screening site after the invasion of Afghanistan in 2001, is now
teeming with some 630 prisoners -- more than twice the 275 being held at
Guantanamo.

The administration has spent nearly three years and more than $30 million on a
plan to transfer Afghan prisoners held by the United States to a refurbished
high-security detention center run by the Afghan military outside Kabul.

But almost a year after the Afghan detention center opened, American officials
say it can hold only about half the prisoners they once planned to put there. As
a result, the makeshift American site at Bagram will probably continue to
operate with hundreds of detainees for the foreseeable future, the officials
said.

Meanwhile, the treatment of some prisoners on the Bagram base has prompted a
strong complaint to the Pentagon from the International Committee of the Red
Cross, the only outside group allowed in the detention center.

In a confidential memorandum last summer, the Red Cross said dozens of prisoners
had been held incommunicado for weeks or even months in a previously undisclosed
warren of isolation cells at Bagram, two American officials said. The Red Cross
said the prisoners were kept from its inspectors and sometimes subjected to
cruel treatment in violation of the Geneva Conventions, one of the officials
said.

The senior Pentagon official for detention policy, Sandra L. Hodgkinson, would
not discuss the complaint, citing the confidentiality of communications with the
Red Cross. She said that the organization had access to "all Department of
Defense detainees" in Afghanistan, after they were formally registered, and that
the military "makes every effort to register detainees as soon as practicable
after capture, normally within two weeks.

"In some cases, due to a variety of logistical and operational circumstances, it
may take longer," Ms. Hodgkinson added.

The obstacles American officials have faced in their plan to "transition out" of
the Bagram detention center underscore the complexity of their challenges in
dealing with prisoners overseas. Yet even as Bagram has expanded over the last
three years, it has received a fraction of the attention that policy makers,
Congress and human rights groups have devoted to Guantanamo.

"The problem at Bagram hasn't gone away," said Tina M. Foster, a New York human
rights lawyer who has filed federal lawsuits on behalf of the detainees at
Bagram. "The government has just done a better job of keeping it secret."

The rising number of detainees at Bagram -- up from barely 100 in early 2004 and
about 500 early last year -- has been driven primarily by the deepening war in
Afghanistan. American officials said that all but about 30 of those prisoners
are Afghans, most of them Taliban fighters captured in raids or on the
battlefield.

But the surging detainee population also reflects a series of unforeseen
problems in the United States' effort to turn over prisoners to the Afghan
government.

In a confidential diplomatic agreement in August 2005, a draft of which was
obtained by The New York Times, the Bush administration said it would transfer
the detainees if the Kabul government gave written assurances that it would
treat the detainees humanely and abide by elaborate security conditions. As part
of the accord, the United States said it would finance the rebuilding of an
Afghan prison block and help equip and train an Afghan guard force.

Yet even before the construction began in early 2006, the creation of the new
Afghan National Detention Center was complicated by turf battles among Afghan
government ministries, some of which resisted the American strategy, officials
of both countries said.

A push by some Defense Department officials to have Kabul authorize the
indefinite military detention of "enemy combatants" -- adopting a legal
framework like that of Guantanamo -- foundered in 2006 when aides to President
Hamid Karzai persuaded him not to sign a decree that had been written with
American help.

Then, last May, the transfer plan was disrupted again when the two American
servicemen overseeing the project were shot to death by a man suspected of being
a Taliban militant who had infiltrated the guard force.

The Pentagon initially reported only that the two Americans, Col. James W.
Harrison Jr. and Master Sgt. Wilberto Sabalu Jr., were killed May 6 by "small-
arms fire." But American officials said the Afghan guard had opened fire with a
semiautomatic rifle as two vehicles carrying senior officers waited to pass
through the prison gate. The killings forced more than a month of further
vetting of the Afghan guards and the dismissal of almost two dozen trained
recruits, Pentagon officials said.

A SPARTAN SITE OF METAL PENS

The Bagram Theater Internment Facility, as it is called, has held prisoners
captured as far away as Central Africa and Southeast Asia, many of whom were
sent on to Guantanamo. Since the flow of detainees to Cuba was largely shut off
in September 2004, the Bagram detention center has become primarily a repository
for more dangerous prisoners captured in Afghanistan.

Despite some expansion and renovation, the detention center remains a crude
place where most prisoners are fenced into large metal pens, military officers
and former detainees have said.

Military personnel who know both Bagram and Guantanamo describe the Afghan site,
on an American-controlled military base 40 miles north of Kabul, as far more
spartan. Bagram prisoners have fewer privileges, less ability to contest their
detention and no access to lawyers. Some detainees have been held without charge
for more than five years, officials said.

The treatment of prisoners at Bagram has generally improved in recent years,
human rights groups and former detainees say, particularly since two Afghan
detainees died there in December 2002 after being beaten by their American
captors. Two American officials familiar with the Red Cross complaint that was
forwarded to the Pentagon over the summer described it as a notable exception.

A Red Cross spokesman in Washington, Simon Schorno, said the organization would
not comment on its discussions with the Defense Department. But in remarks about
the organization's work in Afghanistan, its director of operations, Pierre
Kraehenbuehl, emphasized on Dec. 13 that "not all places of detention and
detainees" are made available to the group's inspectors.

"The fact that the ICRC does not publicize its findings does not indicate
satisfaction with the conditions of any given detention place," he said on the
group's Web site.

The two United States officials, who insisted on anonymity because of the
confidentiality of Red Cross communications, suggested that the organization had
been more forceful in private. They said the group had complained that detainees
in the isolation area were sometimes subjected to harsh interrogations and were
not reported to Red Cross inspectors until after they were moved into the main
Bagram detention center and formally registered -- after being held
incommunicado for as long as several months.

One former Bush administration official said the Pentagon told Congressional
leaders in September 2006 that a small number of prisoners held by Special
Operations forces might not be registered within the 14-day period cited in a
Defense Department directive issued that month. The exceptions were to be
"approved at the highest levels," the former official said.

DISCOUNTING COMPLAINTS

Bush administration officials have at times discounted complaints about the
crowding and harsh conditions at Bagram by saying the detention center was never
meant to be permanent and that its prisoners would soon be turned over to
Afghanistan.

Hundreds of Bagram detainees have been released outright as part of an Afghan
national reconciliation program. But by early 2006, internal Defense Department
statistics showed that the average internment at Bagram was 14.5 months, and one
Pentagon official said that figure had since risen.

After a White House agreement by President Bush and Mr. Karzai in May 2005, the
plan to transfer the prisoners was drawn up by administration officials and
outlined in an exchange of confidential diplomatic notes that August.

The two-page Washington note -- the first document to become public showing the
terms that Washington has sought from other governments for the transfer of
detainees from Guantanamo and Bagram -- asks the Kabul administration to share
any intelligence information from the prisoners, "utilize all methods
appropriate and permissible under Afghan law to surveil or monitor their
activities following any release," and "confiscate or deny passports and take
measures to prevent each national from traveling outside Afghanistan."

At the time, some Bush administration officials predicted that transfers from
Bagram could begin within six months. Col. Manuel Supervielle, who worked on
legal aspects of the transfers as the senior United States military lawyer in
Afghanistan, recalled that officials in Washington expected the primary
difficulty to be the rebuilding of a cellblock at Afghanistan's decrepit Pul-i-
Charkhi prison to meet international standards of humane treatment.

"We've got a bunch of guys we want to hand over to the Afghans," Colonel
Supervielle said, recalling the prevailing view. "Build a jail and hand them
over."

But complications emerged at almost every turn.

Afghan officials rejected pressure from Washington to adopt a detention system
modeled on the Bush administration's "enemy combatant" legal framework, American
officials said. Some Defense Department officials even urged the Afghan military
to set up military commissions like those at Guantanamo, the officials said.

Officials of both countries said the defense minister, Abdul Rahim Wardak, was
reluctant to take responsibility for the new detention center as the Pentagon
wanted, fearing he would be besieged by tribal leaders trying to secure the
release of captives. The minister of justice, Sarwar Danish, opposed sharing his
control over prisons, the officials said.

American officials finally brokered an agreement between the ministries,
internal documents show. But that did not resolve more basic questions about the
legal basis under which Afghanistan would hold the detainees.

For nearly a year, American military officials and diplomats worked with the
Afghan government to draft a plan for how it would detain and prosecute all
prisoners captured in Afghanistan. Colonel Supervielle, who had helped set up
legal operations at Guantanamo, said the effort in Afghanistan was in some ways
more complex. "You weren't dealing just with a U.S. interagency process," he
said. "It involved the interagency process, bilateral relations with
Afghanistan, the military coalition and other international interests."

The draft law was finally delivered to Mr. Karzai in August 2006. Despite
American entreaties, he decided not to sign it after opposition from senior
aides, officials said.

The construction of a new detention center at Pul-i-Charkhi also proved more
complicated than United States officials had anticipated.

A NEW PROJECT IS FLAWED

When Afghan contractors broke ground on the $20 million project in 2006, United
States officials estimated that the center would hold as many as 670 prisoners.
But as the military police colonel overseeing the project toured the site with
Afghan and Red Cross officials, they pointed to a significant flaw. In other
parts of Pul-i-Charkhi, men were crammed as many as eight to a cell, and used
toilets down the hall. To improve security and hygiene, the Americans equipped
each two-man cell in the new block with its own toilet.

But because the cultural modesty of Afghan men would make them uncomfortable
sharing an open toilet, it was subsequently decided that the prisoners should be
held individually, two former officials involved in the project said. That
immediately reduced the optimal capacity of the main prison to about 330
detainees, they said, although a Pentagon spokeswoman said its "maximum
capacity" was 628 prisoners.

The training of Afghan military personnel to guard and administer the new prison
has posed other challenges. After initially budgeting $6 million for guard
training, the Defense Department decided it would need about $18 million for
training and "mentoring" of guards over three years, officials said.

A first group of 12 Bagram detainees was moved into the Pul-i-Charkhi prison on
April 3. Over the next nine months, that number rose to 157 prisoners, including
32 from Guantanamo, official statistics show. Afghan officials decided to
release 12 of those detainees soon after their transfer.

American officials said the modest flow had been dictated mainly by the Afghan
military, which has wanted to make sure its guards could handle the new
arrivals. But some United States officials say they have also had to reassess
the Afghans' ability to hold more dangerous detainees. They said the detention
center at Bagram would probably continue to hold hundreds of prisoners
indefinitely. "The idea is that over time, some of our detainees at Bagram --
especially those at the lower end of the threat scale -- will be passed on to
Afghanistan," one senior military official said last year. "But not all. Bagram
will remain an intelligence asset and a screening area."

Ms. Hodgkinson, the deputy assistant secretary of defense for detainee affairs,
acknowledged that the military was holding more detainees at Bagram than it had
anticipated two years ago and that the Pentagon had no plan to assist the
Afghans with further prison-building. But, she added, "A final decision on the
higher-threat detainees has not yet been made."

And even now, the legal basis under which prisoners are being held at the Afghan
detention center remains unclear. Another Defense Department official, who
insisted on anonymity because she was not authorized to publicly discuss the
issue, said the detentions had been authorized "in a note from the attorney
general stating that he recognizes that they have the legal authority under the
law of war to hold enemy combatants as security threats if they choose to do
so."

Afghan officials said they were still expecting virtually all of the Afghan
prisoners held by the United States -- with the possible exception of a few
especially dangerous detainees at Guantanamo -- to be handed over to them.

A spokesman for the Afghan Defense Ministry, Gen. Zaher Azimi, said, "What is
agreed is that all the detainees should be transferred."

*


New York Times --

January 2, 2008

STONEWALLED BY THE CIA

by Thomas H. Kean and Lee H. Hamilton

http://www.nytimes.com/2008/01/02/opinion/02kean.html

Washington

MORE than five years ago, Congress and President Bush created the 9/11
commission. The goal was to provide the American people with the fullest
possible account of the "facts and circumstances relating to the terrorist
attacks of September 11, 2001" -- and to offer recommendations to prevent future
attacks. Soon after its creation, the president's chief of staff directed all
executive branch agencies to cooperate with the commission.

The commission's mandate was sweeping and it explicitly included the
intelligence agencies. But the recent revelations that the CIA destroyed
videotaped interrogations of Qaeda operatives leads us to conclude that the
agency failed to respond to our lawful requests for information about the 9/11
plot. Those who knew about those videotapes -- and did not tell us about them --
obstructed our investigation.

There could have been absolutely no doubt in the mind of anyone at the CIA -- or
the White House -- of the commission's interest in any and all information
related to Qaeda detainees involved in the 9/11 plot. Yet no one in the
administration ever told the commission of the existence of videotapes of
detainee interrogations.

When the press reported that, in 2002 and maybe at other times, the CIA had
recorded hundreds of hours of interrogations of at least two Qaeda detainees, we
went back to check our records. We found that we did ask, repeatedly, for the
kind of information that would have been contained in such videotapes.

The commission did not have a mandate to investigate how detainees were treated;
our role was to investigate the history and evolution of Al Qaeda and the 9/11
plot. Beginning in June 2003, we requested all reports of intelligence
information on these broad topics that had been gleaned from the interrogations
of 118 named individuals, including both Abu Zubaydah and Abd al Rahim al-
Nashiri, two senior Qaeda operatives, portions of whose interrogations were
apparently recorded and then destroyed.

The CIA gave us many reports summarizing information gained in the
interrogations. But the reports raised almost as many questions as they
answered. Agency officials assured us that, if we posed specific questions, they
would do all they could to answer them.

So, in October 2003, we sent another wave of questions to the CIA's general
counsel. One set posed dozens of specific questions about the reports, including
those about Abu Zubaydah. A second set, even more important in our view, asked
for details about the translation process in the interrogations; the background
of the interrogators; the way the interrogators handled inconsistencies in the
detainees' stories; the particular questions that had been asked to elicit
reported information; the way interrogators had followed up on certain lines of
questioning; the context of the interrogations so we could assess the
credibility and demeanor of the detainees when they made the reported
statements; and the views or assessments of the interrogators themselves.

The general counsel responded in writing with non-specific replies. The agency
did not disclose that any interrogations had ever been recorded or that it had
held any further relevant information, in any form. Not satisfied with this
response, we decided that we needed to question the detainees directly,
including Abu Zubaydah and a few other key captives.

In a lunch meeting on December 23, 2003, George Tenet, the CIA director, told us
point blank that we would have no such access. During the meeting, we emphasized
to him that the CIA should provide any documents responsive to our requests,
even if the commission had not specifically asked for them. Mr. Tenet replied by
alluding to several documents he thought would be helpful to us, but neither he,
nor anyone else in the meeting, mentioned videotapes.

A meeting on January 21, 2004, with Mr. Tenet, the White House counsel, the
secretary of defense and a representative from the Justice Department also
resulted in the denial of commission access to the detainees. Once again,
videotapes were not mentioned.

As a result of this January meeting, the CIA agreed to pose some of our
questions to detainees and report back to us. The commission concluded this was
all the administration could give us. But the commission never felt that its
earlier questions had been satisfactorily answered. So the public would be aware
of our concerns, we highlighted our caveats on page 146 in the commission
report.

As a legal matter, it is not up to us to examine the CIA's failure to disclose
the existence of these tapes. That is for others. What we do know is that
government officials decided not to inform a lawfully constituted body, created
by Congress and the president, to investigate one the greatest tragedies to
confront this country. We call that obstruction.

[ Thomas H. Kean and Lee H. Hamilton served as chairman and vice chairman,
respectively, of the 9/11 commission. ]

*


The Age (Melbourne) --

January 1, 2008

SECRET REUNION BRINGS A HUG FOR HICKS AND FATHER

By Penelope Debelle

http://www.theage.com.au/articles/2007/12/31/1198949746682.html

FORMER Guantanamo Bay detainee David Hicks was secretly reunited with his father
yesterday, then spoke publicly for the first time, offering just a handful of
words: "I'm doing fine."

The 32-year-old hugged his father, Terry, after meeting him for the first time
since he was taken from prison to a secret suburban location.

Terry Hicks introduced his son to The Age after the newspaper discovered the
meeting. Hicks was pale-faced and well-spoken with a deep voice. He shook hands
in greeting. But in what is believed to have been his first meeting with a
reporter since his arrest in Afghanistan six years ago, he also appeared
intense, nervous and distrustful around someone he did not know.

Since his release from an Adelaide prison on Saturday, Hicks has been adjusting
to life as a free man, trying to enjoy it while also moving from house to house
and trying to avoid being recognised. In the middle of an Adelaide heatwave, he
has been for a swim, one of the things, along with a beer on the beach, he had
most looked forward to.

He has been moving cautiously around the community and has gone out more than
once wearing a cap without being recognised, although he has attracted a couple
of glances.

"He has had a chance to get out and do his own thing," Terry Hicks said. "He
hasn't harmed anyone."

Hicks deferred to his father during the meetings, telling The Age he was doing
well but declining to answer questions because of fears about the repercussions
of breaching the gag order imposed on him as part of the plea deal he made with
the US military.

Terry Hicks said the US military had embedded a deep fear in his son --
irrational considering it is unlikely that the US could enforce its demands --
and he feared being sent back to Guantanamo Bay.

Mr Hicks said his son, who was released from Yatala after serving a nine-month
sentence imposed on him by the US military, needed more "breathing space" before
other media learned of his whereabouts.

He asked that people not try to track his son down. "David is asking for time.
He is not confident enough to talk fully to the media as yet -- this (meeting)
was just a lucky coincidence."

Mr Hicks said he had asked not to be told where his son was staying and had
received a phone call seeking the reunion.

Hicks was expected to go to the Port Adelaide police station yesterday for his
first day of reporting under the terms of an Australian Federal Police control
order, but he evaded media and reported elsewhere. On Saturday he slipped
undetected into the Port Adelaide station to be fingerprinted hours after being
released, but after reporters gathered at the station from 6am yesterday -- the
time Hicks' night curfew ended -- his plans were changed.

Hicks is being shielded by supporters and may be moved from house to house to
prevent detection while he rebuilds trust in people and confidence in himself.

His former lawyer, Stephen Kenny, who was the first lawyer allowed to visit a
detainee inside the US military's Guantanamo Bay prison in Cuba, said procedures
used there breached the Geneva Convention and were intended to break people.

"The real issue was the manipulative control exercised by the jailers that were
designed to break people, and have done quite successfully," Mr Kenny said.
"They exercised minute control over people and the biggest and most damaging
thing they could do was put them in solitary confinement."

Mr Kenny said he had witnessed Hicks' deterioration at Guantanamo Bay after he
was placed in solitary confinement.

Hicks, who withdrew formal allegations that he had been tortured as part of his
plea agreement with the US military, spent almost half of his 5½ years at
Guantanamo Bay in solitary confinement and will receive counselling to deal with
its effects.

Mr Hicks said his son told him yesterday he was taking small steps but knew he
needed psychiatric support, which he would begin early this year.

He said his son's concern to avoid detection was based on his lack of confidence
and poor social skills after being held in military detention for so long.

He said his son was to be taken to another location last night. "I still don't
know where he is. You people came across us by accident."

Mr Hicks, who spoke quietly and calmly to his son, who shares his stocky build
and piercing blue eyes, said David suffered from anxiety and had taken three
days to recover from an incident in early November when he was taken by federal
police to the Holden Hill police station in the back of a van. Mr Hicks said
David had suffered extreme anxiety in the van and had felt as though he was back
at Guantanamo Bay. As a result of his anxiety, the trip was aborted.

Hicks had hoped to read a statement of thanks on his release on Saturday but was
unable to go through with it, leaving it to his lawyer David McLeod to read it
to the media.

"The best way for David to handle all this is to lay low for a bit longer," Mr
Hicks said. "I know there are people out there who want to talk to him but it's
going to achieve nothing."

Hicks is understood to be concerned about the circumstances of a reunion with
his children, Bonnie, 14, and Terry, 12, whose mother, Jodie Sparrow, has hired
an agent and is believed to be keen to make money out of her connections. Ms
Sparrow appeared with her children on Channel Nine's Sixty Minutes program in
May and was reported to have done another deal with Nine.

Hicks is keen to see his children, whose photos he had in his cell at Guantanamo
Bay and who have visited him in prison, but he is wary of being exposed to the
media if he does so.

Mr Hicks said his son would face the media eventually but needed time to heal.
"It will take some time and the media and the public have got to be aware of
that," he said. "He wants at the moment to just lay as low as possible without
the media knowing where he is."

Hicks will not appear in court when the interim control order obtained by
federal police returns to the Federal Magistrates Court for confirmation on
February 18 but it is understood his lawyers will seek to reduce the reporting
provisions from three times a week to once.

* * *