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NEWS DIGEST 2008.02.09 - 2008.04.30
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The New Yorker --

April 28, 2008

STATE SECRETS
A government misstep in a wiretapping case.

by Patrick Radden Keefe

http://www.newyorker.com/reporting/2008/04/28/080428fa_fact_keefe?printable=true

One Friday afternoon in August, 2004, a Washington, D.C., attorney named Lynne
Bernabei received a package from the Department of the Treasury. The government
was investigating one of her clients, the American branch of a Saudi charity
called the Al Haramain Islamic Foundation, which had been active in fifty
countries. Al Haramain had come under scrutiny, as had many other Islamic
charities, after the attacks of September 11, 2001, and Treasury Department
investigators believed that Al Haramain's American branch, which was based in
Oregon, had connections to Al Qaeda. In response to a request from Bernabei for
evidence against her client, the government had turned over two sets of
documents, primarily media reports that referred to other branches of Al
Haramain. None of the materials demonstrated a direct connection between the
Oregon branch and Al Qaeda.

Bernabei asked for any classified evidence the government might have, arguing
that it was impossible to rebut evidence that she couldn't see. When a third
batch of evidence arrived, that August afternoon, the cover letter noted that
the enclosed materials were "unclassified," so Bernabei didn't give much thought
to the last item, a four-page document stamped "Top Secret." "My impression was
that it might have been something that was declassified," she told me recently.

Bernabei photocopied the materials and forwarded them to the half-dozen clients
and attorneys associated with the case. Several weeks later, the Treasury
Department concluded its investigation, and declared the Oregon branch of Al
Haramain a Specially Designated Global Terrorist entity, citing "direct links"
with Osama bin Laden.

Soon afterward, two F.B.I. agents visited Bernabei's office and informed her
that a classified document had accidentally been turned over to her. Bernabei
told them that she had received only "unclassified" information, but she agreed
to retrieve the document from her files. According to Bernabei, one of the
agents suggested that as she looked for the document she should try not to think
about what it contained. In the following weeks, F.B.I. agents tracked down the
copies that she had distributed. One lawyer for Al Haramain had an electronic
copy. The F.B.I. asked to purge it from his computers.

Bernabei said that she and her associates did not appreciate the significance of
the document, and the government's efforts to recover it, until December, 2005,
when the New York Times revealed that the Bush Administration had authorized the
National Security Agency to employ wiretaps inside the United States without
first getting a warrant. The document that the Treasury Department had turned
over to Bernabei appears to have been a summary of intercepted telephone
conversations between two of Al Haramain's American lawyers, in Washington, and
one of the charity's officers, in Saudi Arabia. The government had evidently
passed along proof of surveillance to the targets of that surveillance, and
supplied the Oregon branch of Al Haramain -- a suspected terrorist organization
-- with ammunition to challenge the constitutionality of the warrantless-
wiretapping program.


Well before September 11th, U.S. intelligence agencies had suspicions about the
connections between Islamic charities and terrorism. Zakat, or charitable
tithing, is one of the five pillars of Islam, a duty for observant Muslims, and,
by some estimates, Saudi charities raise four billion dollars a year. They
establish mosques and community centers, distribute religious literature, and
dispatch clerics to spread Wahhabism, the severe strain of fundamentalist Islam
that is the official religion of the kingdom. "This is an element of Saudi
foreign policy," Lee Wolosky, a member of the National Security Council in the
Clinton and Bush Administrations, told me. "It's very well coördinated. It
happens at the highest levels of the Saudi state." In 2004, David Aufhauser, who
as the Treasury Department's general counsel oversaw its counterterrorism
efforts after September 11th, estimated that in recent decades the kingdom had
spent "north of seventy-five billion dollars" on Islamic evangelism.

Al Haramain was established, with help from the Saudi royal family, in 1991. Its
headquarters were in Riyadh, with offices in foreign countries. Within a few
years, the charity was suspected by the C.I.A. of involvement in terrorism. In
1996, a C.I.A. report suggested that a third of Islamic N.G.O.s "support
terrorist groups or employ individuals who are suspected of having terrorist
connections"; it named Al Haramain as an example. In 1997, a C.I.A. informant in
Nairobi said that the local branch of Al Haramain planned to blow up the U.S.
Embassy. According to the Times, a C.I.A. inquiry turned up no evidence of a
plot, but after the bombings of the American Embassies in Tanzania and Kenya,
the following year, Kenyan authorities ordered Al Haramain from the country. In
a trial on the bombings in New York in 2001, prosecutors introduced a collection
of business cards that had been seized from the Nairobi home of Wadih el-Hage,
an Al Qaeda operative who was eventually convicted for his role. One belonged to
Mansour al-Kadi, an Al Haramain official in Riyadh, who was the titular vice-
president of the Oregon branch (though he never played an active role there, and
no further connection was made between the charity and the bombings).

Aqeel al-Aqil, who was Al Haramain's director during the nineties, told me by e-
mail that he could not control aid and donations once they arrived in areas of
conflict, such as Bosnia and Chechnya. "If you give a sack of flour to a needy
family," he said, "you cannot guarantee that some of their mujahideen sons will
not eat some of the bread made of that flour." U.S. authorities, however,
believed that the charities must be held accountable. "Historically, Al Qaeda
and other terrorist groups have set up or exploited some charities," Stuart
Levey, the Treasury Department's Under-Secretary for Terrorism and Financial
Intelligence, told the Senate Finance Committee earlier this month. "Those who
reach for their wallets to fund terrorism must be pursued and punished in the
same way as those who reach for a bomb or a gun."

After September 11th, the F.B.I. assigned Dennis Lormel, a veteran financial
investigator, to look into how Al Qaeda secured its funding. "We latched on to
charities immediately," he told me. On September 23, 2001, President Bush signed
an executive order authorizing the Treasury Department to "designate"
individuals or entities believed to be supporting or "otherwise associated" with
terrorism, in order to help shut down what Bush called "the financial foundation
of the global terror network."

Designations amount to a kind of economic embargo: anyone who does business with
a designated person risks criminal or civil penalties. The Treasury Department
can act more quickly than the police or the F.B.I., who may take action only
after an investigation. By preëmptively freezing a suspect's assets, "the
government does not have to watch these dollars continue to flow over a period
of months or years as it investigates whether it will pursue criminal charges,"
a department spokesman, Andrew DeSouza, told me.

Authorities also need less evidence for a designation than they would for
prosecution, and they can rely on evidence that would not be admissible in a
criminal trial. Matthew Levitt, who until last year was deputy assistant
secretary for intelligence and analysis at the Treasury Department, says that
designations involve "an extremely robust process. This is not something that
can be done easily or willy-nilly." But Lormel, who retired from the F.B.I. in
2003, says he would have been "hard pressed" to act on some of the material that
Treasury officials used. "Oftentimes, I think they base their evidence on media
stories or public-source information, whereas we would never use only that," he
told me.

In addition, the Treasury Department may use classified evidence that is never
disclosed to the designated party, despite an established principle of the
American legal system that the accused should have an opportunity to confront
evidence against him. Designations can be challenged before a federal judge, but
lawyers for the designated party are not shown all the government's evidence and
cannot introduce their own. Nearly five hundred individuals and groups have been
labelled Specially Designated Global Terrorists since 2001; there has never been
a successful challenge in court. A designation "effectively denies people
province over their own property in a largely unreviewable way," Aufhauser, the
department's former general counsel, told me. "Such an extraordinary power needs
to be exercised with discretion, because it could be constitutionally suspect."

Al Haramain was an early target. Foreign branches -- including those in Somalia
and Bosnia, which, according to officials, had been directing funds to terrorist
groups -- were the first to be designated. Lormel dispatched F.B.I. agents to
Ashland, Oregon, to investigate the American branch.


Situated in the Rogue Valley, and surrounded by the dramatic foothills of the
Siskiyou and Cascade Mountains, Ashland is a semirural community of some twenty
thousand people. Main Street is lined with organic restaurants, coffee shops,
and independent bookstores, and locals describe the town as unusually liberal
for conservative southern Oregon.

Al Haramain Oregon was run by a longtime Ashland resident named Pirouz
Sedaghaty, who is known as Pete Seda. Now fifty years old, he grew up in a
secular household in Iran, where his father was a general under the Shah. In
1976, when he was eighteen, Seda followed an older brother to Ashland. He
enrolled at the local college, but struggled with reading and writing in
English, and never graduated. He drifted into environmental activism,
demonstrating against the spraying of herbicides in national forests.

In the nineteen-eighties, Seda went into business as the Arborist, transplanting
trees and doing landscaping projects. He became more religious, and converted
several friends to Islam, outdoorsmen who dressed like lumberjacks -- one
Ashland resident described them as "Muslim rednecks." He arranged places for
Friday prayers, and established a nonprofit group, the Qur'an Foundation, which
mailed religious literature to Muslims in prison.

Seda became a fixture at peace rallies and multicultural fairs in Ashland. "He
was the go-to guy if you wanted to have an interreligious dialogue," the
Reverend Caren Caldwell, a local Protestant minister who has known Seda for
twenty years, said. "I'm not a Muslim minister," Seda told worshippers at a
local synagogue, where the rabbi often invited him to speak. "I'm just a common
brother in our community." He spoke of the importance of monotheism and prayer,
and of how terrorism is inimical to the teachings of the Koran. He bought a
camel, which he named Mandub ("emissary" in Arabic). He led it down Main Street
in the Fourth of July parade.

In 1993, Seda met and married an Iranian woman named Laleh; he lived with her
and another woman -- whom he considered a second wife -- in Ashland. (Seda has
two sons, from an earlier marriage.) That woman eventually left, and a college
student named Summer Rife moved in. "I met Pete at an academic presentation he
was giving on Islam," Rife, who is now twenty-seven, said in an e-mail. (Seda's
lawyer advised him against talking to me, but Rife agreed to respond to written
questions.) She seems somewhat in thrall to Seda. "If Pete had the means and
opportunity, he could really make a positive difference in the world," she
wrote. "He is Nobel Prize material."

Soliman al-Buthi, a Saudi who worked for Al Haramain as its treasurer, and who
was interested in establishing an American branch, visited Seda in Ashland in
1997. Seda, who was born a Shiite and wore a neatly trimmed beard and fleece
jackets, seemed an unlikely partner for Buthi, a Sunni who wore long robes and
kaffiyehs. Buthi told me recently that he had heard of Seda's Qur'an Foundation
from a mutual friend, and that he chose the Rogue Valley, where there were only
a few dozen Muslims, because he wanted to "start small." Buthi offered to turn
Seda's shoestring operation into a well-financed arm of Al Haramain. "He told me
that he had become a Sunni," Buthi said, adding, "I don't think there would be
any coöperating with a Shia." (Rife told me that Seda "does not believe in
sectarianism. We like to say we are Muslim.")

Al Haramain Oregon was incorporated in 1999. Aqeel al-Aqil, in Riyadh, was
listed as the titular president, and Seda and Buthi as officers. With a hundred
and eighty-eight thousand dollars from Riyadh, Seda bought a split-level house
to serve as a prayer space for local Muslims and as a warehouse for literature.
He hired a young Wake Forest graduate named Daveed Gartenstein-Ross, who had
grown up Jewish in Ashland and converted to Islam in college, to assist him.

At times, Seda seemed to be adopting a more militant set of beliefs. "He said
he'd like to go over and fight with the Chechens," Abdullah Cabral, a retired
truck driver who in 1999 accompanied Seda on the hajj, told me. "I took it with
a grain of salt. You want to leave your business, two young sons, a couple of
wives?" But by all accounts Seda was devastated by the events of September 11th.
He wrote to Al Haramain headquarters demanding a million dollars for outreach
work, and offered to assist the F.B.I. in any way he could. He told a reporter
that he was fearful that "all these years of helping with the education and
understanding may have come down with the twin towers."

By the summer of 2004, the Treasury Department had designated eleven foreign
branches of Al Haramain as supporters of terrorism, along with Aqil, the
director, who still lives in Saudi Arabia. "It was under the cloak of charity
that Aqeel al-Aqil used the Al Haramain organization to benefit himself and Al
Qaeda," Juan Zarate, a deputy assistant secretary in the department, announced
in June, 2004.

Three months later, the Treasury Department singled out the Oregon branch. A
statement pointed to links with Al Qaeda, asserting that the charity had
diverted funds to support "Chechen leaders affiliated with the al-Qaida
network." Treasury officials would not elaborate, citing the classified nature
of the evidence; Cari Stinebower, a lawyer who until 2005 worked on designations
at the Treasury Department, told me that the process relied on information that
was too sensitive to be revealed. "In the intelligence community, people love to
collect, but they hate to disseminate," she said.

Buthi was labelled a Specially Designated Global Terrorist. (He was in Riyadh,
where he still works as a municipal-government official.) Pete Seda was not
designated; a year and a half earlier, he had left the country, ostensibly to go
on the hajj, and had not returned.


Under normal circumstances, Seda, Buthi, and the lawyers representing Al
Haramain would never have known that the Treasury Department, in its
investigation, had relied on telephone conversations secretly intercepted by the
N.S.A. Yet, according to court filings by attorneys who have seen it, the
document that the department mistakenly sent Bernabei described intercepted
conversations between Buthi, in Riyadh, and two of Al Haramain's attorneys, Asim
Ghafoor and Wendell Belew, in Washington. The document was dated May 24, 2004;
the conversations took place in March and April -- just as the Treasury
Department was investigating the charity.

On February 28, 2006, Al Haramain filed suit against the Bush Administration in
Oregon federal court, claiming that the government had violated the First,
Fourth, and Sixth Amendments, along with the Foreign Intelligence Surveillance
Act of 1978, which makes it illegal for the government to use wiretaps in the
U.S. without a warrant. The warrantless-wiretapping program has been challenged
in numerous lawsuits over the past two years, many brought on behalf of
journalists and activists, who make sympathetic plaintiffs but struggle to
demonstrate that the government actually listened to them. In 2006, a federal
court in Michigan found warrantless surveillance unconstitutional, but an
appeals court overturned the ruling, concluding that the plaintiff, the
A.C.L.U., could not prove that any individual had been targeted by the program.

In the classified document, Al Haramain appeared to have the proof that the
other cases lacked. Although the F.B.I. had retrieved the copies that Bernabei
distributed to her fellow-lawyers, it made no effort to recover those which went
to Seda and Buthi, who were both living in the Middle East. When Al Haramain's
attorneys filed their lawsuit with the court, they included an envelope
containing a copy of the document.

Justice Department lawyers objected that the document was too sensitive to be
kept at the court. A classified document remains classified even if the
government has inadvertently disclosed it, they argued, and the document turned
over to Al Haramain was classified at the highest level; it contained Sensitive
Compartmented Information, which must be kept in a special facility, called a
SCIF. The government maintained that the document should be turned over to the
F.B.I. "What if I say I will not deliver it to the F.B.I.?" the judge, Garr
King, asked, according to a transcript of the proceedings. "We obviously don't
want to have any kind of confrontation with you," a government lawyer, Anthony
Coppolino, replied. "But it has to be secured in a proper fashion." Judge King
eventually agreed to transfer the document to a nearby SCIF, at the U.S.
Attorney's office in Seattle.

The Bush Administration then moved to dismiss Al Haramain's case, citing the
"state-secrets privilege," a controversial legal doctrine that can be used to
prevent the introduction of evidence that might jeopardize national security.
Judges tend to show deference when the executive branch invokes state secrets;
courts have rejected the privilege on fewer than six occasions since it was
first recognized by the Supreme Court, in 1953. In that case, U.S. v. Reynolds,
the widows of three civilian engineers who died in the crash of an Air Force
B-29 sued for negligence. The government would not turn over the accident
report, asserting that it contained information about the plane's secret
electronic equipment. However, when the report was declassified, in the
nineties, there was no mention of secret electronic equipment. It did reveal
that the plane lacked standard safeguards to prevent the engine from overheating
-- the very negligence that the widows had alleged.

Nevertheless, government lawyers still cite Reynolds to argue that the courts
should trust the executive on matters of national security. According to a 2005
study by William Weaver and Robert Pallitto, political scientists at the
University of Texas at El Paso, the Bush Administration has claimed the state-
secrets privilege in recent years with "offhanded abandon." By Weaver and
Pallitto's count of reported instances, the privilege was invoked fifty-five
times in the half century before 2001; it has been used more than two dozen
times in the years since. Its heavy use has drawn criticism from members of
Congress, including Senator Arlen Specter, the senior Republican on the
Judiciary Committee. "We're going to look back at this period of time two
decades from now and see a vast expansion of executive authority," Specter told
me this month. "And a big part of it is done by the state-secrets doctrine. Do I
think in some cases that the government uses it inappropriately? Absolutely."

In recent years, Justice Department lawyers have used the privilege not only to
eliminate key pieces of evidence but also to dismiss potential legal challenges
altogether. Last year, a federal appeals court ruled that a German citizen,
Khaled el-Masri, who alleges that, in a case of mistaken identity, he was
kidnapped and tortured by the C.I.A., cannot sue the United States, because the
"very subject matter" of his lawsuit -- America's extraordinary-rendition
program -- is secret. Some, like Senator Patrick Leahy, the chairman of the
Senate Judiciary Committee, contend that the Administration is using the state-
secrets doctrine to prevent the courts from assessing the legality of
controversial programs. The White House "has taken a legal doctrine that was
intended to protect sensitive national-security information and seems to be
using it to evade accountability for its own misdeeds," Leahy said in February,
during a Senate hearing on the privilege.

A senior Justice Department official who was authorized to comment told me that
the Bush Administration is trying to protect national-security secrets, not to
shield its activities from scrutiny. A challenge to the wiretapping program
could proceed, he said, provided the surveillance was "sufficiently well
disclosed." But a government document describing that surveillance, such as the
one Al Haramain received, would not qualify as disclosure. Only a formal
acknowledgment by the government would suffice.

Still, in September, 2006, Judge King refused to throw out Al Haramain's case on
state-secrets grounds, noting that President Bush and other officials had
already confirmed the existence of the surveillance program. King agreed to bar
the classified document from the case, but proposed that the attorneys for Al
Haramain file affidavits describing their memories of it, which could be used to
prove that Al Haramain had been subjected to surveillance.


None of the lawyers for the charity who have seen the document would describe
its contents. But Soliman al-Buthi and the two Washington lawyers, Asim Ghafoor
and Wendell Belew, agreed to tell me what they were discussing on the telephone
during March and April of 2004, when the surveillance appears to have taken
place.

In 2002, scores of prominent Saudis, including Buthi, were named as defendants
in a lawsuit brought on behalf of the victims of September 11th. Ghafoor had
agreed to represent the Saudis, and Belew was lobbying in Washington on their
behalf; the three men had several conversations about the payment of the
lawyers' fees, which Buthi was helping to coördinate. I asked whether Buthi
might have mentioned any defendants who could have been of interest to U.S.
intelligence. Buthi, Belew, and Ghafoor all volunteered the same names: Safar
al-Hawali and Salman al-Auda, two radical clerics who have been publicly praised
by Osama bin Laden; and Mohammed Jamal Khalifa, a Jidda businessman who was bin
Laden's brother-in-law and onetime best friend.

"There's an argument to be made that designating Al Haramain was a mistake," Jon
Eisenberg, an appellate lawyer who is representing the charity in its
wiretapping lawsuit, and who has seen the document, told me. Still, he said, "it
is not my role to figure out if they are terrorists or not." In court filings,
Al Haramain's lawyers have said that something in the document suggests that the
surveillance was conducted without a warrant. In Eisenberg's view, the more
suspicious Al Haramain seemed, the easier it should have been to obtain one.

When Judge King did not dismiss Al Haramain's case, the Bush Administration
appealed. Along with public filings to the federal appeals court in San
Francisco, government lawyers included a set of secret arguments that Eisenberg
was not allowed to see. Based on his knowledge of the document, Eisenberg
decided to guess at these arguments, and counter them.

Because the document was still classified, anything Eisenberg wrote about its
contents would become "derivatively classified," so he was obliged to write his
brief under supervision -- not of the court but of the Litigation Security
Section of the Justice Department, his adversary. A security officer, Erin
Hogarty, explained the special procedures for the drafting: it must take place
at the department's offices in San Francisco; Eisenberg could bring no notes
with him, and must use a government computer. Hogarty also said that Steven
Goldberg, one of Eisenberg's colleagues, could join him but that Tom Nelson,
another lawyer for Al Haramain, could not. According to Eisenberg, Hogarty later
told him that the order about Nelson came directly from one of the government
lawyers working on the case.

The senior Justice Department official told me that Hogarty had never been
explicitly instructed that Nelson could not participate. Rather, she was told
that because Nelson had not allowed government technicians to purge his computer
of classified information he raised "different security concerns." The
Litigation Security Section is ostensibly neutral and independent, but Eisenberg
contends that Hogarty, as a Justice Department employee taking orders from
government lawyers working on the case, had a conflict of interest, and that
allowing his opponents to determine who could contribute to a court filing
undermines the fairness of the adversarial process. The official disagreed. "I
don't think this episode even begins to raise a serious issue," he said.

Last June, Eisenberg and Goldberg met Hogarty at the Justice Department offices
in San Francisco and were escorted to a windowless room. Hogarty took their cell
phones and the battery from Eisenberg's laptop. She supplied them with a
government computer. The drafting lasted three hours. Eisenberg got hungry, and
Hogarty offered him a banana from her lunch. When the brief was completed,
Eisenberg and Goldberg printed out copies for the judges and for the government
lawyers; because Al Haramain's lawyers did not have security clearance, they
were not allowed to keep a copy of the brief they had just written. Hogarty
assembled the preliminary drafts and said that she would shred them -- and
Eisenberg's banana peel, too.

After the drafting session, Hogarty and Eisenberg met once more, to wipe his
computer of any classified information. As it happened, the laptop had died of
its own accord; Eisenberg and Hogarty agreed to destroy the hard drive. Hogarty
had brought a technician with her, and he extracted the hard drive and memory
board from the laptop. Then he and Hogarty placed the hard drive on the floor
and pounded it with a table leg.

Oral arguments before the Ninth Circuit Court of Appeals in Al Haramain Islamic
Foundation, Inc. v. George W. Bush took place in August, 2007, and focussed
almost exclusively on the document. Al Haramain's lawyers might think that the
document was proof of surveillance, Thomas Bondy, the government's lawyer,
argued, but they could be wrong. "Although they think or believe or claim they
were surveilled," Bondy concluded, "it's possible that they weren't."

"Basically," Eisenberg told me later, the government is "saying that when it
comes to matters of national security there is no truth. We will not confirm or
deny. So it doesn't matter what you know."

The appeals-court judges ruled in November that, because of the "cascade of
acknowledgments" of the wiretapping program, Al Haramain's case could not be
thrown out on the ground that its subject matter was a secret. But, after
inspecting the document themselves, they rejected Judge King's suggestion that
affidavits describing it could be used in court, calling that solution a "back
door around the privilege."

The judges sent the case to a district court to decide one final issue. Without
the document or the affidavits describing it, Al Haramain will have trouble
proving that it was subject to surveillance. But Eisenberg insisted that he was
optimistic. "We're still alive," he said.


On August 15th, as Eisenberg was delivering his oral arguments in the appeals
court in California, Pete Seda returned to Oregon. He had been a fugitive for
two and a half years, travelling with his wives from Saudi Arabia to the United
Arab Emirates, Iran, and Syria. In his absence, federal prosecutors had indicted
him, along with Buthi, and when he arrived at the airport in Portland he was
arrested. The indictment focussed on an incident in 2000, in which Buthi had
converted a hundred-and-fifty-thousand-dollar donation to Al Haramain Oregon
into cashier's and traveller's checks, and had carried the money to Riyadh
without declaring it at the airport. The foundation allegedly lied on its tax
return to hide the funds. Authorities implied that the donation was intended for
the rebels in Chechnya. (Seda has pleaded not guilty; Al Haramain's lawyers say
that the money did go to Chechnya, but in support of refugees.) There were no
charges of terrorism or terrorist financing.

Ibrahim Warde, a professor at the Fletcher School of Law and Diplomacy, at
Tufts, and the author of "The Price of Fear," a critique of the war on terrorist
financing, said that the Al Haramain case is typical of the Administration's
approach to Islamic charities. "It was a giant bait-and-switch game," he told
me. The government "would initially tout the connection with Al Qaeda, and then
in the end would nail them on some unrelated infraction having to do with tax
evasion or immigration." But Matthew Levitt, the former Treasury Department
official, told me that when a designation is followed by a criminal indictment
without charges of terrorism defense attorneys are too quick to conclude that
their clients are innocent. "The fact that someone is designated and then not
charged for that activity means nothing," he said.

One consideration for prosecutors is that winning convictions on terrorism
charges can be difficult. In October, 2007, a major case brought by the
government against the Holy Land Foundation, which before it was designated, in
2001, was the largest Islamic charity in the U.S., concluded without a single
conviction. Prosecutors had charged the group with providing "material support"
for terrorism. One of the jurors described the government's evidence as "strung
together with macaroni noodles."

Jeffrey Breinholt, a senior Justice Department official who is currently on
leave at the International Assessment and Strategy Center, in Washington,
observes that charging suspects with supporting terrorism might require
disclosing secret information in court. Seda's case signifies a change in
tactics for federal prosecutors, Breinholt told me, toward "Al Capone-ing"
suspects -- charging them on whatever will secure a conviction.

"If you charge them for things like we charged the guys in Oregon with, there's
necessarily going to be less national-security disclosure of information,"
Breinholt said. "It's a calculated decision to go after them for smaller
things." Breinholt and a Justice Department spokesman both noted the success of
a case that was decided in Boston in January, in which officials from Care
International, another Islamic charity accused of terrorism (and not affiliated
with the well-known humanitarian organization of the same name), were convicted
on tax charges.

One flaw of this approach is that although it may bring convictions, it seldom
results in substantial jail time. When Seda returned to Oregon, the U.S.
Attorney's office argued that he should be kept behind bars pending his trial on
tax charges. The prosecutor, Chris Cardani, insisted that Seda subscribed to a
militant brand of Wahhabi Islam and represented a flight risk. "This is a case
about radical forms of religion and the effects it has on people," he said in a
detention hearing last summer.

To demonstrate that Seda was a threat, Cardani called on Daveed Gartenstein-
Ross, the young Ashland convert who had worked for Seda in the late nineties.
Gartenstein-Ross had since converted again, to Christianity. He began
coöperating with authorities, supplying them with information on Al Haramain,
and eventually wrote a book, "My Year Inside Radical Islam."

Gartenstein-Ross testified that Seda had been opposed to terrorism. But he also
pointed to disturbing passages in the Islamic literature that Al Haramain
distributed: an appendix in one edition of the Koran that featured a "Call to
Jihad"; a book of Islamic guidelines, which declared, "The Last Hour will not
appear unless the Muslims fight the Jews and kill them." Still, it was not clear
that Seda personally subscribed to these views. "He's a Koranic literalist,"
Gartenstein-Ross told me. "But if the question is how much he actually read the
Koran, the answer is almost never. He didn't read Arabic, and he had trouble
reading English. And all of our translations were English-Arabic."


In the hunt for terrorists and those who support them, intelligence analysts
construct "link charts" to connect a suspicious individual to his known
acquaintances, to their known acquaintances, and so on -- an exercise in six
degrees of separation. (In 2000, Army intelligence analysts trying to "map" Al
Qaeda reportedly described the effort as "the Kevin Bacon game.") In designating
Al Haramain Oregon, Treasury Department officials cited "direct links" with Al
Qaeda, but have never revealed the precise nature of those links. Stinebower,
the former Treasury lawyer, said she was unaware of any internal definition of
"direct links." She wouldn't discuss the particulars of the Al Haramain
designation, but did say, "It wouldn't have been sufficient that A picks up a
phone and calls B, and B picks up a phone and talks to C, therefore A knows C.
There would have to be more of a connection than that."

It seems inevitable that, in seeking to identify and disrupt possible terrorist
threats, U.S. intelligence will rely on a suspect's circle of associates and his
religious beliefs. But the First Amendment prevents authorities from prosecuting
people solely on the basis of association or ideology, and espousing radical
beliefs is not in itself a criminal act.

"We've put ourselves in a situation where the Department of Justice has jumped
into this, saying, If they could be a terrorist, then they're guilty," Karen
Greenberg, the executive director of the Center on Law and Security at New York
University's law school, told me. "We don't have a body of law that says, If you
could be, then you are. If we want to move to that, then we have to think very
long and hard. Because the risks are immense."

On November 30th, the government lost its bid to keep Pete Seda detained. "I
hope that I can again be a positive part of the community and continue working
to bring peace through understanding," Seda said in a statement. He is now under
house arrest; his trial will begin this fall.

Last August, the American Bar Association published a report calling for reform
of the state-secrets privilege. "There will finally be an instance where you've
cried ‘state secrets' so many times that a court will not believe it anymore,
and potentially something that is a state secret will get out," Carrie Newton
Lyons, a former C.I.A. officer who chairs the national-security committee of the
A.B.A.'s Section of International Law, told me. In January, Senators Ted Kennedy
and Arlen Specter introduced a bill to curtail the Administration's use of state
secrets by obliging judges to determine themselves whether evidence is too
sensitive to be used in court, and requiring the government to submit classified
evidence in redacted or summarized form, rather than barring it completely.
Specter objects to the notion that judges must defer to the executive on matters
of secret evidence. "It's beyond arrogant," he told me. "It's insulting."

In the meantime, Eisenberg is trying to figure out how Al Haramain can prove
that it was wiretapped without reference to either the document or the
affidavits describing it. This week, a district judge in San Francisco will
consider the only remaining issue in the case, an abstruse legal question about
the origins of the state-secrets privilege. The government has submitted a
series of classified filings, leaving Eisenberg to guess at what they might
contain.

"This is the difficulty with classified evidence," David Cole, a law professor
at Georgetown who is assisting Lynne Bernabei in her efforts to have Al
Haramain's designation lifted, told me. "At the end of the day, you're fighting
shadows. How do you defend against what you can't see?"

In October, Bernabei wrote a letter to the Justice Department. The attorneys
representing Al Haramain had been dealing with a novel quandary of legal ethics.
If they had a reasonable belief that any telephone conversation with Seda or
Buthi might be monitored by the N.S.A., could they talk to their clients without
violating attorney-client confidentiality? Bernabei requested confirmation that
the government was not intercepting her "written or oral communications" with
her clients. Two weeks later, she received a response from the lawyers at the
Justice Department. They wouldn't confirm or deny.

*


New York Times --

April 27, 2008

LETTERS GIVE CIA TACTICS A LEGAL RATIONALE

By Mark Mazzetti

http://www.nytimes.com/2008/04/27/washington/27intel.html

WASHINGTON -- The Justice Department has told Congress that American
intelligence operatives attempting to thwart terrorist attacks can legally use
interrogation methods that might otherwise be prohibited under international
law. Related Detainees' Mental Health Is Latest Legal Battle (April 26, 2008)

The legal interpretation, outlined in recent letters, sheds new light on the
still-secret rules for interrogations by the Central Intelligence Agency. It
shows that the administration is arguing that the boundaries for interrogations
should be subject to some latitude, even under an executive order issued last
summer that President Bush said meant that the CIA would comply with
international strictures against harsh treatment of detainees.

While the Geneva Conventions prohibit "outrages upon personal dignity," a letter
sent by the Justice Department to Congress on March 5 makes clear that the
administration has not drawn a precise line in deciding which interrogation
methods would violate that standard, and is reserving the right to make case-by-
case judgments.

"The fact that an act is undertaken to prevent a threatened terrorist attack,
rather than for the purpose of humiliation or abuse, would be relevant to a
reasonable observer in measuring the outrageousness of the act," said Brian A.
Benczkowski, a deputy assistant attorney general, in the letter, which had not
previously been made public.

Mr. Bush issued the executive order last summer to comply with restrictions
imposed by the Supreme Court and Congress. The order spelled out new standards
for interrogation techniques, requiring that they comply with international
standards for humane treatment, but it did not identify any approved techniques.

It has been clear that the order preserved at least some of the latitude that
Mr. Bush has permitted the CIA in using harsher interrogation techniques than
those permitted by the military or other agencies. But the new documents provide
more details about how the administration intends to determine whether a
specific technique would be legal, depending on the circumstances involved.

The letters from the Justice Department to Congress were provided by the staff
of Senator Ron Wyden, an Oregon Democrat who is a member of the Intelligence
Committee and had sought more information from the department.

Some legal experts critical of the Justice Department interpretation said the
department seemed to be arguing that the prospect of thwarting a terror attack
could be used to justify interrogation methods that would otherwise be illegal.

"What they are saying is that if my intent is to defend the United States rather
than to humiliate you, than I have not committed an offense," said Scott L.
Silliman, who teaches national security law at Duke University.

But a senior Justice Department official strongly challenged this interpretation
on Friday, saying that the purpose of the interrogation would be just one among
many factors weighed in determining whether a specific procedure could be used.

"I certainly don't want to suggest that if there's a good purpose you can head
off and humiliate and degrade someone," said the official, speaking on the
condition of anonymity because he was describing some legal judgments that
remain classified.

"The fact that you are doing something for a legitimate security purpose would
be relevant, but there are things that a reasonable observer would deem to be
outrageous," he said.

At the same time, the official said, "there are certainly things that can be
insulting that would not raise to the level of an outrage on personal dignity."

The humiliating and degrading treatment of prisoners is prohibited by Common
Article 3 of the Geneva Conventions.

Determining the legal boundaries for interrogating terrorism suspects has been a
struggle for the Bush administration. Some of those captured in the first two
years after the Sept. 11, 2001, attacks were subjected to particularly severe
methods, including waterboarding, which induces a feeling of drowning.

But the rules for interrogations became more restrictive beginning in 2004, when
the Justice Department rescinded a number of classified legal opinions,
including a memorandum written in August 2002 that argued that nothing short of
the pain associated with organ failure constituted illegal torture. The
executive order that Mr. Bush issued in July 2007 was a further restriction, in
response to a Supreme Court ruling in 2006 that holding that all prisoners in
American captivity must be treated in accordance with Common Article 3.

Mr. Benczkowski's letters were in response to questions from Mr. Wyden, whose
committee had received classified briefings about the executive order.

That order specifies some conduct that it says would be prohibited in any
interrogation, including forcing an individual to perform sexual acts, or
threatening an individual with sexual mutilation. But it does not say which
techniques could still be permitted.

Legislation that was approved this year by the House and the Senate would have
imposed further on CIA interrogations, by requiring that they conform to rules
spelled out in the Army handbook for military interrogations that bans coercive
procedures. But Mr. Bush vetoed that bill, saying that the use of harsh
interrogation methods had been effective in preventing terrorist attacks.

The legal reasoning included in the latest Justice Department letters is less
expansive than what department lawyers offered as recently as 2005 in defending
the use of aggressive techniques. But they show that the Bush administration
lawyers are citing the sometimes vague language of the Geneva Conventions to
support the idea that interrogators should not be bound by ironclad rules.

In one letter written Sept. 27, 2007, Mr. Benczkowski argued that "to rise to
the level of an outrage" and thus be prohibited under the Geneva Conventions,
conduct "must be so deplorable that the reasonable observer would recognize it
as something that should be universally condemned."

Mr. Wyden said he was concerned that, under the new rules, the Bush
administration had put Geneva Convention restrictions on a "sliding scale."

If the United States used subjective standards in applying its interrogation
rules, he said, then potential enemies might adopt different standards of
treatment for American detainees based on an officer's rank or other factors.

"The cumulative effect in my interpretation is to put American troops at risk,"
Mr. Wyden said.

*


Washington Post --

April 24, 2008

CIA FORESAW INTERROGATION ISSUES
Agency Considered Investigations 'Virtually Inevitable'

by Dan Eggen

http://www.washingtonpost.com/wp-dyn/content/
article/2008/04/23/AR2008042303249.html

The CIA concluded that criminal, administrative or civil investigations stemming
from harsh interrogation tactics were "virtually inevitable," leading the agency
to seek legal support from the Justice Department, according to a CIA official's
statement in court documents filed yesterday.

The CIA said it had identified more than 7,000 pages of classified memos, e-
mails and other records relating to its secret prison and interrogation program,
but maintained that the materials cannot be released because they relate to, in
part, communications between CIA and Justice Department attorneys or discussions
with the White House.

Nineteen of those documents were withheld from disclosure specifically because
the Bush administration decided they are covered by a "presidential
communications privilege," according to the filings, made in federal court in
Manhattan. Some were "authored or solicited and received by the President's
senior advisors in connection with a decision, or potential decision, to be made
by the president."

Although the precise content of the documents is unknown, the agency's
statements illustrate the extent to which senior White House officials were
involved in decision-making on CIA detentions, interrogations, and renditions, a
term for forced transfers of prisoners. These topics were the targets of a
Freedom of Information Act lawsuit by liberal advocacy groups that compelled the
CIA's disclosures.

The flow of documents, by itself, also suggests that the CIA's unorthodox
interrogation program was the focus of behind-the-scenes debate at the highest
levels of the Bush administration after the Sept. 11, 2001, attacks. The
documents indicate that lawyers at the CIA and elsewhere were aware that CIA
personnel might be subject to criminal prosecution or other legal sanctions.

After the CIA's use of harsh interrogation tactics, including a form of
simulated drowning, became known, the agency said they were authorized by a
series of secret Justice Department legal opinions. President Bush has strongly
defended the legality and efficacy of the program, and recently acknowledged
that he approved of high-level White House meetings on precise interrogation
practices.

The records submitted to the court list and briefly describe dozens of
communications between the CIA and the Justice Department's Office of Legal
Counsel, or OLC. At least 10 were in 2004, five were in 2005, and seven were in
2006; virtually all were classified "top secret" or even more restricted.

"The CIA's purpose in requesting advice from OLC was the very likely prospect of
criminal, civil, or administrative litigation against the CIA and CIA personnel
who participate in the Program," said a declaration from Ralph S. DiMaio,
information review officer for the CIA's clandestine service. He added that the
CIA considered such proceedings "to be virtually inevitable."

Asked for comment, CIA spokesman George Little said, "Weighing relevant legal
factors at the start of any new program is not only logical but is the
responsible thing to do. Unfortunately, the fact that people and organizations
follow the law does not prevent them from becoming the subject of litigation
later on."

But Curt Goering, senior deputy executive director of Amnesty International USA,
which is involved in the lawsuit, said the flow of documents shows that the Bush
administration "didn't go into this system blind and they didn't build this
system blind," adding: "It appears to be a calculated and calibrated effort to
justify the unjustifiable."

[ Staff researcher Julie Tate contributed to this report. ]

*

Associated Press --

April 23, 2008

FBI: INTERROGATION TACTICS MIGHT BE INAPPROPRIATE

by Lara Jakes Jordan

http://ap.google.com/article/ALeqM5iA8mY9rbbDdKUe1Y9KObwHhqr9YgD907Q1N00

WASHINGTON (AP) -- FBI Director Robert Mueller on Wednesday recalled warning the
Justice Department and the Pentagon that some U.S. interrogation methods used
against terrorists might be inappropriate, if not illegal.

Mueller's comments came under pointed questioning by House Democrats demanding
to know if the FBI tried to stop interrogations in 2002 that critics define as
torture.

Mueller said the FBI does not use coercive techniques when questioning suspects
or witnesses, and he reportedly pulled his agents out of CIA or military
interrogations several years ago to protect them from legal consequences.

FBI protocol "wouldn't engage in torture," said Rep. Stephen Cohen, D-Tenn. "But
if you find out that other agencies may engage in torture, that you believe is
illegal -- does your protocol include informing those agencies that you believe
their actions are illegal?"

"Yes," Mueller answered.

"Who did you inform?" Cohen asked.

"At points in time, we have reached out to DoD, DoJ, in terms of activity that
we were concerned might not be appropriate, let me put it that way," Mueller
said. DoD refers to the Department of Defense and DoJ to the Department of
Justice.

Mueller said some of the FBI's concerns dated back to 2002, when top al-Qaida
detainees were waterboarded by CIA interrogators. Waterboarding involves
strapping a person down and pouring water over his or her cloth-covered face to
create the sensation of drowning. Critics call it a form of torture.

Asked how the Justice Department and Pentagon responded to the FBI's advice,
Mueller declined to discuss it publicly, citing concerns about releasing
classified information. He also referred to the Justice Department's legal
guidance at the time that waterboarding and other harsh interrogation methods
were legal as long as they did not result in organ failure or death.

That guidance, contained in a series of memos by the department's Office of
legal Counsel, since has been rescinded.

"If you could give us a response as to which agencies did not listen to you,
Director, and engaged in torture, I think that would be very important for this
committee to know," Cohen said. "If there's departments -- of Defense and
Justice, or CIA -- that don't listen to the director of the FBI."

The brief exchange came during a House Judiciary Committee hearing. It
highlighted Congress' interest in whether the Bush administration violated
international laws against torture when allowing waterboarding against terror
suspects in the years following the Sept. 11, 2001, attacks.

The Justice Department is investigating internally whether its attorneys crossed
a line in authorizing the tactics. Both the CIA and the Pentagon banned
personnel from using waterboarding in 2006.

Committee Chairman John Conyers, D-Mich., said he was "shocked" that the FBI's
refusal to coerce suspects during interrogations was not followed by the CIA or
Pentagon

"The FBI deserves credit for those standards," Conyers said, "but they should be
followed by all federal government agencies, not just the FBI."

*


The New Republic --

April 22, 2008

THE TNR Q & A: PHILLIPPE SANDS

by Scott Horton

The author of 'The Torture Tapes' describes how coercive interrogation came to
be the policy of the United States government.

http://tnr.com/politics/story.html?id=80cf3ce9-d5c0-43d8-a5f3-5dbff7210220

British writer and international lawyer Philippe Sands is the author of The
Torture Team , in stores May 5, which chronicles the role lawyers played in the
introduction of the Bush administration's program of coercive interrogation
techniques. Here, Scott Horton talks to Sands about his findings.

TNR: In The Torture Team, you focus on a single document, Donald Rumsfeld's
December 2, 2002 approval of extraordinarily aggressive interrogation
techniques. You give us the document's genesis, and the revolt within the
Pentagon that led to its being formally withdrawn. But what you show is a
process as much as a document, and that process appears to me to be a conscious,
studied circumvention of the normal procedure followed by the U.S. military. Do
you agree?

Sands: When the administration released the December 2002 and other memos, it
told a story that essentially said this: The new interrogation techniques came
from the bottom up and had nothing to do with policy decisions driven from the
top. I wanted to explore the truth of that account, by trying to talk to as many
of the people involved in the decision as I could. I journeyed around America,
tracking down the key players--amongst many others, Diane Beaver and Mike
Dunlavey at Guantanamo; General Tom Hill at SOUTHCOM; General Dick Myers at
Joint Chiefs and his lawyer, Jane Dalton; Doug Feith at the Pentagon; and Jim
Haynes at the general counsel's office. I racked up hundreds of hours of
interviews with them, from which emerged a clear account of the process that was
actually followed--though, of course, there are many more points of detail still
to come out. The pressure for the new techniques came from the top and there was
input from the top into the identification of the techniques. In pushing forward
the decision-making process normal approval process was circumvented, as General
Dick Myers at Joint Chiefs confirmed to me, saying, "This was not the way this
should have come about." Jim Haynes is one of the key players in this story. He
was general counsel at the DoD throughout the period, Donald Rumsfeld's Harvard
Law School-trained lawyer who, it turned out, was intimately involved in the key
decisions from a far earlier stage than his public accounts suggest. He may not
have been the "brains" behind the whole operation--that designation must surely
go to David Addington, Vice President Cheney's lawyer at the time, and Haynes'
mentor. But Haynes was deeply and constantly involved.

The man likely to go down in the history books as "Rumsfeld's general" is
Richard Myers, who served as chairman of the Joint Chiefs of Staff from 2001-05.
You are impressed with his candor, and seem to like him personally, yet you
write that he was "well and truly hoodwinked" in connection with the
introduction of the torture techniques.

I spoke with General Myers for several hours, and I was grateful to him for
meeting with me. He struck me as a man of decency and integrity, but one who was
out of his depth on these issues and seemed not to have turned his mind to
crucial points of detail. It was painfully clear that he had failed to
understand the implications of President Bush's February 7, 2002, decision on
the Geneva Conventions (a decision that removed from all detainees at
Guantnanamo the right to invoke any rights under those conventions and which
removed constraints on interrogation). It was equally clear that he thought the
new techniques of interrogation had come from the U.S. Army Field Manual. In
fact, the Field Manual plainly prohibited all the techniques recommended by
Haynes on November 27, 2002 and approved by Rumsfeld on December 2, 2002,
reflecting President Lincoln's determination, dating back to 1863, that the U.S.
military would never engage in cruelty. These were two of the more surprising--
shocking, actually--moments during hundreds of hours of interviews that I
conducted. I was astonished that the most senior military man in the U.S.,
perhaps in the world, could have had so little grasp of the import of what had
been decided.

The administration's narrative has been that a harsh set of interrogation
techniques, including waterboarding and stress positions, was introduced in
response to demands from interrogators in the field who concluded that what they
had didn't work. How did you reach the conclusion that, in fact, the pressure
for the new techniques came from high up in the administration and worked its
way down?

I have no doubt about the early, close, and active involvement of the upper
echelons of the administration in the decision to request, approve and then use
harsh techniques of interrogation on "Detainee 063," Mohammed Al Qahtani. The
story that emerged from the interviews was clear and it was consistent (plus, I
had the opportunity to put my findings to Jim Haynes, who was the final piece of
the jigsaw). The administration's 'bottom-up' narrative--as spun by Mr. Haynes
and others--is false, inaccurate, and misleading, and I believe it was knowingly
intended to be so. The administration has scapegoated individuals who were on
the ground at Guantanamo in order to protect itself. Names that could have been
blacked out were not. That is deplorable, and the cover-up of what really
happened will likely expose those who engaged in it to even greater difficulty.

The lawyer whose legal analysis underpins the Rumsfeld memo is Diane Beaver,
whom you describe as completely out of her depth dealing with a complex set of
international law questions. But you also note, rather amazingly, how Beaver's
description of plot points from the TV show "24" directly influenced the
introduction of new techniques at Guantanamo, techniques that later were
replicated by American interrogators around the world. How could that happen?

The administration told a story which claimed that Diane Beaver's legal advice
was the basis for the Haynes recommendation and the Rumsfeld approval of the new
techniques. That is false. When Jim Haynes wrote his memo of November 27, 2002,
recommending blanket approval for 15 new techniques of interrogation, and
leaving three others open for future use (including waterboarding), he had
knowledge of the contents of the Department of Justice legal memo from August 1,
2002, signed by Jay Bybee and written with the assistance of John Yoo. That
document provided Jim Haynes with the cover he sought, not Diane Beaver's legal
advice. She was hung out to dry by Jim Haynes, in a manner that was unbecoming
of his office, deeply unfair to her and reflected what will look to many  like a
deliberate effort to cover up what actually happened.


Even if I don't agree with her October 11, 2002 legal memo, I found Diane Beaver
to be straight and honest. I met with her for many, many hours. In the course of
our conversations it emerged that "24" had played an important role, in the
sense of contributing to a climate in which the governing assumption was that
'torture works.' The second season of "24" went to air--and was broadcast around
Guantanamo--at the very moment in which the new techniques of interrogation were
being authorized. It sent out the signal that "torture works". She told me the
program had "many friends" at Guantanamo. Of course, it turns out it also had
many friends in D.C.


One of the lawyers you focus on is Doug Feith--though he makes clear in his
interview with you that he was not functioning in the Pentagon as a lawyer. The
exchange you record with Feith suggests he was distant from the decision
process, and that he had a high opinion of and supported application of the
Geneva Conventions. I remember speaking with military lawyers in 2003 repeatedly
and hearing of their concern about Feith: his heavy hand, his pressure tactics,
and his contempt for the Geneva Conventions and anyone who attempted to stand up
for their application. What's your assessment of Feith and his claims?

In our system of modern democratic societies, lawyers have a key role to play.
They are the guardians--the gatekeepers--of legality. The rule of law requires
lawyers to exercise independent judgment, and to give dispassionate,
professional advice. That did not happen, at least in the upper echelons of the
administration, in the Departments of Justice and Defense. Politically appointed
lawyers--not the military, not the career civil servants--could be relied upon
by the politicians to do what was needed, reflecting an unhappy convergence of
ideology, incompetence, and weakness.

Doug Feith is a lawyer, although he was not serving the administration in that
capacity. He has a helpfully dodgy memory. During our conversation he spoke with
pride of his role in ensuring that none of the Guantanamo detainees should be
able to rely on Geneva. He also recalled only having become involved in the new
interrogation techniques late on, when Haynes' memo reached Rumsfeld. I pointed
out to him that the memo itself said that its author had already consulted
Feith. His reaction? Merely to point out that I had mispronounced his name.
Following a lengthy conversation--which was recorded and makes remarkable
listening because of his well-developed sense of self--my perception was clear:
Doug Feith was deeply involved in the decision-making process, fully supported
it, and failed to address the basic questions that one would have expected the
Pentagon's head of policy to be preoccupied with.

If there was a "station master" for the process of introducing the torture
techniques, your book suggests that was Jim Haynes. Clearly, his role was more
focal to the process that John Yoo or any other lawyer. Clearly, he also saw his
role as that of an implementer, not as someone giving detached professional
advice. The most devastating pages of your book are devoted to Haynes. You
clearly feel that he lied to--or at least consciously misled--Congress when he
testified about the Yoo-Bybee torture memoranda and how they were used. Did you
feel that Haynes lied to you when you interviewed him?

Jim Haynes emerges as a central player in The Torture Team. He was involved
throughout, at each stage of the decision-making. I have come to appreciate that
he has--at best--a semi-detached relationship with truth. His propensity to
mislead was evident from his first public intervention on the issues I have
addressed, in June 2004, when the administration relied on him and Alberto
Gonzales to spin a false narrative on the beginnings of the abuse at Guantanamo,
and its relationship to Abu Ghraib. The catalogue of untruths was added to
during his appearance before the Senate Judiciary Committee, in July 2006, when
he was still trying to get himself nominated to a federal Court of Appeals. It
is an interesting exercise to compare the account he offered on that day--as to
the circumstances in which he wrote his November 2002 memo--with what actually
happened. You might focus, for example, on when he first became involved and
what he did when the materials were at the Joint Chiefs. It will be for others
to form a view as to whether, and if so to what extent, he perjured himself.

I met with Jim Haynes on two occasions, in June 2007 and then in September 2007.
He was under no obligation to meet with me. We talked openly and frankly, and I
presented him with many of the most important facts as I then saw them,
including the circumstances of his visit to Guantanamo in the period before he
wrote his November memo. Did he lie to me? That is a question that might be put
to him. If it ever is, his memory of our two meetings might be jogged by
directing him to the information set out at page 99 of The Terror Presidency,
the book written by Jack Goldsmith, who served as his special counsel from
September 2002 until October 2003. On that page is confirmation of what I was
told before I first met with Mr. Haynes, namely that he joined a delegation of
the most senior lawyers in the Administration (accompanied by Messrs. Addington
and Gonzales, and a senior CIA lawyer, John Rizzo, amongst others) that visited
Guantanamo in late September 2002. That meeting confirmed Mr. Haynes' early
involvement in the process that led to the adoption of new techniques of
interrogation, far earlier than his public narrative has indicated. Professor
Goldsmith's confirming account was published in the period between my two
meetings with Mr. Haynes.

[ New York attorney Scott Horton teaches at Columbia Law School. ]

*


New York Times --

April 20, 2008

Message Machine
BEHIND TV ANALYSTS, PENTAGON'S HIDDEN HAND

by David Barstow

http://www.nytimes.com/2008/04/20/washington/20generals.html

In the summer of 2005, the Bush administration confronted a fresh wave of
criticism over Guantanamo Bay. The detention center had just been branded "the
gulag of our times" by Amnesty International, there were new allegations of
abuse from United Nations human rights experts and calls were mounting for its
closure.

The administration's communications experts responded swiftly. Early one Friday
morning, they put a group of retired military officers on one of the jets
normally used by Vice President Dick Cheney and flew them to Cuba for a
carefully orchestrated tour of Guantanamo.

To the public, these men are members of a familiar fraternity, presented tens of
thousands of times on television and radio as "military analysts" whose long
service has equipped them to give authoritative and unfettered judgments about
the most pressing issues of the post-Sept. 11 world.

Hidden behind that appearance of objectivity, though, is a Pentagon information
apparatus that has used those analysts in a campaign to generate favorable news
coverage of the administration's wartime performance, an examination by The New
York Times has found.

The effort, which began with the buildup to the Iraq war and continues to this
day, has sought to exploit ideological and military allegiances, and also a
powerful financial dynamic: Most of the analysts have ties to military
contractors vested in the very war policies they are asked to assess on air.

Those business relationships are hardly ever disclosed to the viewers, and
sometimes not even to the networks themselves. But collectively, the men on the
plane and several dozen other military analysts represent more than 150 military
contractors either as lobbyists, senior executives, board members or
consultants. The companies include defense heavyweights, but also scores of
smaller companies, all part of a vast assemblage of contractors scrambling for
hundreds of billions in military business generated by the administration's war
on terror. It is a furious competition, one in which inside information and easy
access to senior officials are highly prized.

Records and interviews show how the Bush administration has used its control
over access and information in an effort to transform the analysts into a kind
of media Trojan horse -- an instrument intended to shape terrorism coverage from
inside the major TV and radio networks.

Analysts have been wooed in hundreds of private briefings with senior military
leaders, including officials with significant influence over contracting and
budget matters, records show. They have been taken on tours of Iraq and given
access to classified intelligence. They have been briefed by officials from the
White House, State Department and Justice Department, including Mr. Cheney,
Alberto R. Gonzales and Stephen J. Hadley.

In turn, members of this group have echoed administration talking points,
sometimes even when they suspected the information was false or inflated. Some
analysts acknowledge they suppressed doubts because they feared jeopardizing
their access.

A few expressed regret for participating in what they regarded as an effort to
dupe the American public with propaganda dressed as independent military
analysis.

"It was them saying, 'We need to stick our hands up your back and move your
mouth for you,' " Robert S. Bevelacqua, a retired Green Beret and former Fox
News analyst, said.

Kenneth Allard, a former NBC military analyst who has taught information warfare
at the National Defense University, said the campaign amounted to a
sophisticated information operation. "This was a coherent, active policy," he
said.

As conditions in Iraq deteriorated, Mr. Allard recalled, he saw a yawning gap
between what analysts were told in private briefings and what subsequent
inquiries and books later revealed.

"Night and day," Mr. Allard said, "I felt we'd been hosed."

The Pentagon defended its relationship with military analysts, saying they had
been given only factual information about the war. "The intent and purpose of
this is nothing other than an earnest attempt to inform the American people,"
Bryan Whitman, a Pentagon spokesman, said.

It was, Mr. Whitman added, "a bit incredible" to think retired military officers
could be "wound up" and turned into "puppets of the Defense Department."

Many analysts strongly denied that they had either been co-opted or had allowed
outside business interests to affect their on-air comments, and some have used
their platforms to criticize the conduct of the war. Several, like Jeffrey D.
McCausland, a CBS military analyst and defense industry lobbyist, said they kept
their networks informed of their outside work and recused themselves from
coverage that touched on business interests.

"I'm not here representing the administration," Dr. McCausland said.

Some network officials, meanwhile, acknowledged only a limited understanding of
their analysts' interactions with the administration. They said that while they
were sensitive to potential conflicts of interest, they did not hold their
analysts to the same ethical standards as their news employees regarding outside
financial interests. The onus is on their analysts to disclose conflicts, they
said. And whatever the contributions of military analysts, they also noted the
many network journalists who have covered the war for years in all its
complexity.

Five years into the Iraq war, most details of the architecture and execution of
the Pentagon's campaign have never been disclosed. But The Times successfully
sued the Defense Department to gain access to 8,000 pages of e-mail messages,
transcripts and records describing years of private briefings, trips to Iraq and
Guantanamo and an extensive Pentagon talking points operation.

These records reveal a symbiotic relationship where the usual dividing lines
between government and journalism have been obliterated.

Internal Pentagon documents repeatedly refer to the military analysts as
"message force multipliers" or "surrogates" who could be counted on to deliver
administration "themes and messages" to millions of Americans "in the form of
their own opinions."

Though many analysts are paid network consultants, making $500 to $1,000 per
appearance, in Pentagon meetings they sometimes spoke as if they were operating
behind enemy lines, interviews and transcripts show. Some offered the Pentagon
tips on how to outmaneuver the networks, or as one analyst put it to Donald H.
Rumsfeld, then the defense secretary, "the Chris Matthewses and the Wolf
Blitzers of the world." Some warned of planned stories or sent the Pentagon
copies of their correspondence with network news executives. Many -- although
certainly not all -- faithfully echoed talking points intended to counter
critics.

"Good work," Thomas G. McInerney, a retired Air Force general, consultant and
Fox News analyst, wrote to the Pentagon after receiving fresh talking points in
late 2006. "We will use it."

Again and again, records show, the administration has enlisted analysts as a
rapid reaction force to rebut what it viewed as critical news coverage, some of
it by the networks' own Pentagon correspondents. For example, when news articles
revealed that troops in Iraq were dying because of inadequate body armor, a
senior Pentagon official wrote to his colleagues: "I think our analysts --
properly armed -- can push back in that arena."

The documents released by the Pentagon do not show any quid pro quo between
commentary and contracts. But some analysts said they had used the special
access as a marketing and networking opportunity or as a window into future
business possibilities.

John C. Garrett is a retired Marine colonel and unpaid analyst for Fox News TV
and radio. He is also a lobbyist at Patton Boggs who helps firms win Pentagon
contracts, including in Iraq. In promotional materials, he states that as a
military analyst he "is privy to weekly access and briefings with the secretary
of defense, chairman of the Joint Chiefs of Staff and other high level policy
makers in the administration." One client told investors that Mr. Garrett's
special access and decades of experience helped him "to know in advance -- and
in detail -- how best to meet the needs" of the Defense Department and other
agencies.

In interviews Mr. Garrett said there was an inevitable overlap between his dual
roles. He said he had gotten "information you just otherwise would not get,"
from the briefings and three Pentagon-sponsored trips to Iraq. He also
acknowledged using this access and information to identify opportunities for
clients. "You can't help but look for that," he said, adding, "If you know a
capability that would fill a niche or need, you try to fill it. "That's good for
everybody."

At the same time, in e-mail messages to the Pentagon, Mr. Garrett displayed an
eagerness to be supportive with his television and radio commentary. "Please let
me know if you have any specific points you want covered or that you would
prefer to downplay," he wrote in January 2007, before President Bush went on TV
to describe the surge strategy in Iraq.

Conversely, the administration has demonstrated that there is a price for
sustained criticism, many analysts said. "You'll lose all access," Dr.
McCausland said.

With a majority of Americans calling the war a mistake despite all
administration attempts to sway public opinion, the Pentagon has focused in the
last couple of years on cultivating in particular military analysts frequently
seen and heard in conservative news outlets, records and interviews show.

Some of these analysts were on the mission to Cuba on June 24, 2005 -- the first
of six such Guantanamo trips -- which was designed to mobilize analysts against
the growing perception of Guantanamo as an international symbol of inhumane
treatment. On the flight to Cuba, for much of the day at Guantanamo and on the
flight home that night, Pentagon officials briefed the 10 or so analysts on
their key messages -- how much had been spent improving the facility, the abuse
endured by guards, the extensive rights afforded detainees.

The results came quickly. The analysts went on TV and radio, decrying Amnesty
International, criticizing calls to close the facility and asserting that all
detainees were treated humanely.

"The impressions that you're getting from the media and from the various
pronouncements being made by people who have not been here in my opinion are
totally false," Donald W. Shepperd, a retired Air Force general, reported live
on CNN by phone from Guantanamo that same afternoon.

The next morning, Montgomery Meigs, a retired Army general and NBC analyst,
appeared on "Today." "There's been over $100 million of new construction," he
reported. "The place is very professionally run."

Within days, transcripts of the analysts' appearances were circulated to senior
White House and Pentagon officials, cited as evidence of progress in the battle
for hearts and minds at home.

CHARTING THE CAMPAIGN

By early 2002, detailed planning for a possible Iraq invasion was under way, yet
an obstacle loomed. Many Americans, polls showed, were uneasy about invading a
country with no clear connection to the Sept. 11 attacks. Pentagon and White
House officials believed the military analysts could play a crucial role in
helping overcome this resistance.

Torie Clarke, the former public relations executive who oversaw the Pentagon's
dealings with the analysts as assistant secretary of defense for public affairs,
had come to her job with distinct ideas about achieving what she called
"information dominance." In a spin-saturated news culture, she argued, opinion
is swayed most by voices perceived as authoritative and utterly independent.

And so even before Sept. 11, she built a system within the Pentagon to recruit
"key influentials" -- movers and shakers from all walks who with the proper
ministrations might be counted on to generate support for Mr. Rumsfeld's
priorities.

In the months after Sept. 11, as every network rushed to retain its own all-star
squad of retired military officers, Ms. Clarke and her staff sensed a new
opportunity. To Ms. Clarke's team, the military analysts were the ultimate "key
influential" -- authoritative, most of them decorated war heroes, all reaching
mass audiences.

The analysts, they noticed, often got more airtime than network reporters, and
they were not merely explaining the capabilities of Apache helicopters. They
were framing how viewers ought to interpret events. What is more, while the
analysts were in the news media, they were not of the news media. They were
military men, many of them ideologically in sync with the administration's
neoconservative brain trust, many of them important players in a military
industry anticipating large budget increases to pay for an Iraq war.

Even analysts with no defense industry ties, and no fondness for the
administration, were reluctant to be critical of military leaders, many of whom
were friends. "It is very hard for me to criticize the United States Army," said
William L. Nash, a retired Army general and ABC analyst. "It is my life."

Other administrations had made sporadic, small-scale attempts to build
relationships with the occasional military analyst. But these were trifling
compared with what Ms. Clarke's team had in mind. Don Meyer, an aide to Ms.
Clarke, said a strategic decision was made in 2002 to make the analysts the main
focus of the public relations push to construct a case for war. Journalists were
secondary. "We didn't want to rely on them to be our primary vehicle to get
information out," Mr. Meyer said.

The Pentagon's regular press office would be kept separate from the military
analysts. The analysts would instead be catered to by a small group of political
appointees, with the point person being Brent T. Krueger, another senior aide to
Ms. Clarke. The decision recalled other administration tactics that subverted
traditional journalism. Federal agencies, for example, have paid columnists to
write favorably about the administration. They have distributed to local TV
stations hundreds of fake news segments with fawning accounts of administration
accomplishments. The Pentagon itself has made covert payments to Iraqi
newspapers to publish coalition propaganda.

Rather than complain about the "media filter," each of these techniques simply
converted the filter into an amplifier. This time, Mr. Krueger said, the
military analysts would in effect be "writing the op-ed" for the war.

ASSEMBLING THE TEAM

From the start, interviews show, the White House took a keen interest in which
analysts had been identified by the Pentagon, requesting lists of potential
recruits, and suggesting names. Ms. Clarke's team wrote summaries describing
their backgrounds, business affiliations and where they stood on the war.

"Rumsfeld ultimately cleared off on all invitees," said Mr. Krueger, who left
the Pentagon in 2004. (Through a spokesman, Mr. Rumsfeld declined to comment for
this article.)

Over time, the Pentagon recruited more than 75 retired officers, although some
participated only briefly or sporadically. The largest contingent was affiliated
with Fox News, followed by NBC and CNN, the other networks with 24-hour cable
outlets. But analysts from CBS and ABC were included, too. Some recruits, though
not on any network payroll, were influential in other ways -- either because
they were sought out by radio hosts, or because they often published op-ed
articles or were quoted in magazines, Web sites and newspapers. At least nine of
them have written op-ed articles for The Times.

The group was heavily represented by men involved in the business of helping
companies win military contracts. Several held senior positions with contractors
that gave them direct responsibility for winning new Pentagon business. James
Marks, a retired Army general and analyst for CNN from 2004 to 2007, pursued
military and intelligence contracts as a senior executive with McNeil
Technologies. Still others held board positions with military firms that gave
them responsibility for government business. General McInerney, the Fox analyst,
for example, sits on the boards of several military contractors, including
Nortel Government Solutions, a supplier of communication networks.

Several were defense industry lobbyists, such as Dr. McCausland, who works at
Buchanan Ingersoll & Rooney, a major lobbying firm where he is director of a
national security team that represents several military contractors. "We offer
clients access to key decision makers," Dr. McCausland's team promised on the
firm's Web site.

Dr. McCausland was not the only analyst making this pledge. Another was Joseph
W. Ralston, a retired Air Force general. Soon after signing on with CBS, General
Ralston was named vice chairman of the Cohen Group, a consulting firm headed by
a former defense secretary, William Cohen, himself now a "world affairs" analyst
for CNN. "The Cohen Group knows that getting to 'yes' in the aerospace and
defense market -- whether in the United States or abroad -- requires that
companies have a thorough, up-to-date understanding of the thinking of
government decision makers," the company tells prospective clients on its Web
site.

There were also ideological ties.

Two of NBC's most prominent analysts, Barry R. McCaffrey and the late Wayne A.
Downing, were on the advisory board of the Committee for the Liberation of Iraq,
an advocacy group created with White House encouragement in 2002 to help make
the case for ousting Saddam Hussein. Both men also had their own consulting
firms and sat on the boards of major military contractors.

Many also shared with Mr. Bush's national security team a belief that
pessimistic war coverage broke the nation's will to win in Vietnam, and there
was a mutual resolve not to let that happen with this war.

This was a major theme, for example, with Paul E. Vallely, a Fox News analyst
from 2001 to 2007. A retired Army general who had specialized in psychological
warfare, Mr. Vallely co-authored a paper in 1980 that accused American news
organizations of failing to defend the nation from "enemy" propaganda during
Vietnam.

"We lost the war -- not because we were outfought, but because we were out
Psyoped," he wrote. He urged a radically new approach to psychological
operations in future wars -- taking aim at not just foreign adversaries but
domestic audiences, too. He called his approach "MindWar" -- using network TV
and radio to "strengthen our national will to victory."

THE SELLING OF THE WAR

From their earliest sessions with the military analysts, Mr. Rumsfeld and his
aides spoke as if they were all part of the same team.

In interviews, participants described a powerfully seductive environment -- the
uniformed escorts to Mr. Rumsfeld's private conference room, the best government
china laid out, the embossed name cards, the blizzard of PowerPoints, the
solicitations of advice and counsel, the appeals to duty and country, the warm
thank you notes from the secretary himself.

"Oh, you have no idea," Mr. Allard said, describing the effect. "You're back.
They listen to you. They listen to what you say on TV." It was, he said, "psyops
on steroids" -- a nuanced exercise in influence through flattery and proximity.
"It's not like it's, 'We'll pay you $500 to get our story out,' " he said. "It's
more subtle."

The access came with a condition. Participants were instructed not to quote
their briefers directly or otherwise describe their contacts with the Pentagon.

In the fall and winter leading up to the invasion, the Pentagon armed its
analysts with talking points portraying Iraq as an urgent threat. The basic case
became a familiar mantra: Iraq possessed chemical and biological weapons, was
developing nuclear weapons, and might one day slip some to Al Qaeda; an invasion
would be a relatively quick and inexpensive "war of liberation."

At the Pentagon, members of Ms. Clarke's staff marveled at the way the analysts
seamlessly incorporated material from talking points and briefings as if it was
their own.

"You could see that they were messaging," Mr. Krueger said. "You could see they
were taking verbatim what the secretary was saying or what the technical
specialists were saying. And they were saying it over and over and over." Some
days, he added, "We were able to click on every single station and every one of
our folks were up there delivering our message. You'd look at them and say,
'This is working.' "

On April 12, 2003, with major combat almost over, Mr. Rumsfeld drafted a
memorandum to Ms. Clarke. "Let's think about having some of the folks who did
such a good job as talking heads in after this thing is over," he wrote.

By summer, though, the first signs of the insurgency had emerged. Reports from
journalists based in Baghdad were increasingly suffused with the imagery of
mayhem.

The Pentagon did not have to search far for a counterweight.

It was time, an internal Pentagon strategy memorandum urged, to "re-energize
surrogates and message-force multipliers," starting with the military analysts.

The memorandum led to a proposal to take analysts on a tour of Iraq in September
2003, timed to help overcome the sticker shock from Mr. Bush's request for $87
billion in emergency war financing.

The group included four analysts from Fox News, one each from CNN and ABC, and
several research-group luminaries whose opinion articles appear regularly in the
nation's op-ed pages.

The trip invitation promised a look at "the real situation on the ground in
Iraq."

The situation, as described in scores of books, was deteriorating. L. Paul
Bremer III, then the American viceroy in Iraq, wrote in his memoir, "My Year in
Iraq," that he had privately warned the White House that the United States had
"about half the number of soldiers we needed here."

"We're up against a growing and sophisticated threat," Mr. Bremer recalled
telling the president during a private White House dinner.

That dinner took place on Sept. 24, while the analysts were touring Iraq.

Yet these harsh realities were elided, or flatly contradicted, during the
official presentations for the analysts, records show. The itinerary, scripted
to the minute, featured brief visits to a model school, a few refurbished
government buildings, a center for women's rights, a mass grave and even the
gardens of Babylon.

Mostly the analysts attended briefings. These sessions, records show, spooled
out an alternative narrative, depicting an Iraq bursting with political and
economic energy, its security forces blossoming. On the crucial question of
troop levels, the briefings echoed the White House line: No reinforcements were
needed. The "growing and sophisticated threat" described by Mr. Bremer was
instead depicted as degraded, isolated and on the run.

"We're winning," a briefing document proclaimed.

One trip participant, General Nash of ABC, said some briefings were so clearly
"artificial" that he joked to another group member that they were on "the George
Romney memorial trip to Iraq," a reference to Mr. Romney's infamous claim that
American officials had "brainwashed" him into supporting the Vietnam War during
a tour there in 1965, while he was governor of Michigan.

But if the trip pounded the message of progress, it also represented a business
opportunity: direct access to the most senior civilian and military leaders in
Iraq and Kuwait, including many with a say in how the president's $87 billion
would be spent. It also was a chance to gather inside information about the most
pressing needs confronting the American mission: the acute shortages of "up-
armored" Humvees; the billions to be spent building military bases; the urgent
need for interpreters; and the ambitious plans to train Iraq's security forces.

Information and access of this nature had undeniable value for trip participants
like William V. Cowan and Carlton A. Sherwood.

Mr. Cowan, a Fox analyst and retired Marine colonel, was the chief executive of
a new military firm, the wvc3 Group. Mr. Sherwood was its executive vice
president. At the time, the company was seeking contracts worth tens of millions
to supply body armor and counterintelligence services in Iraq. In addition, wvc3
Group had a written agreement to use its influence and connections to help
tribal leaders in Al Anbar Province win reconstruction contracts from the
coalition.

"Those sheiks wanted access to the C.P.A.," Mr. Cowan recalled in an interview,
referring to the Coalition Provisional Authority.

Mr. Cowan said he pleaded their cause during the trip. "I tried to push hard
with some of Bremer's people to engage these people of Al Anbar," he said.

Back in Washington, Pentagon officials kept a nervous eye on how the trip
translated on the airwaves. Uncomfortable facts had bubbled up during the trip.
One briefer, for example, mentioned that the Army was resorting to packing
inadequately armored Humvees with sandbags and Kevlar blankets. Descriptions of
the Iraqi security forces were withering. "They can't shoot, but then again,
they don't," one officer told them, according to one participant's notes.

"I saw immediately in 2003 that things were going south," General Vallely, one
of the Fox analysts on the trip, recalled in an interview with The Times.

The Pentagon, though, need not have worried.

"You can't believe the progress," General Vallely told Alan Colmes of Fox News
upon his return. He predicted the insurgency would be "down to a few numbers"
within months.

"We could not be more excited, more pleased," Mr. Cowan told Greta Van Susteren
of Fox News. There was barely a word about armor shortages or corrupt Iraqi
security forces. And on the key strategic question of the moment -- whether to
send more troops -- the analysts were unanimous.

"I am so much against adding more troops," General Shepperd said on CNN.

ACCESS AND INFLUENCE

Inside the Pentagon and at the White House, the trip was viewed as a masterpiece
in the management of perceptions, not least because it gave fuel to complaints
that "mainstream" journalists were ignoring the good news in Iraq.

"We're hitting a home run on this trip," a senior Pentagon official wrote in an
e-mail message to Richard B. Myers and Peter Pace, then chairman and vice
chairman of the Joint Chiefs of Staff.

Its success only intensified the Pentagon's campaign. The pace of briefings
accelerated. More trips were organized. Eventually the effort involved officials
from Washington to Baghdad to Kabul to Guantanamo and back to Tampa, Fla., the
headquarters of United States Central Command.

The scale reflected strong support from the top. When officials in Iraq were
slow to organize another trip for analysts, a Pentagon official fired off an e-
mail message warning that the trips "have the highest levels of visibility" at
the White House and urging them to get moving before Lawrence Di Rita, one of
Mr. Rumsfeld's closest aides, "picks up the phone and starts calling the 4-
stars."

Mr. Di Rita, no longer at the Defense Department, said in an interview that a
"conscious decision" was made to rely on the military analysts to counteract
"the increasingly negative view of the war" coming from journalists in Iraq. The
analysts, he said, generally had "a more supportive view" of the administration
and the war, and the combination of their TV platforms and military cachet made
them ideal for rebutting critical coverage of issues like troop morale,
treatment of detainees, inadequate equipment or poorly trained Iraqi security
forces. "On those issues, they were more likely to be seen as credible
spokesmen," he said.

For analysts with military industry ties, the attention brought access to a
widening circle of influential officials beyond the contacts they had
accumulated over the course of their careers.

Charles T. Nash, a Fox military analyst and retired Navy captain, is a
consultant who helps small companies break into the military market. Suddenly,
he had entree to a host of senior military leaders, many of whom he had never
met. It was, he said, like being embedded with the Pentagon leadership. "You
start to recognize what's most important to them," he said, adding, "There's
nothing like seeing stuff firsthand."

Some Pentagon officials said they were well aware that some analysts viewed
their special access as a business advantage. "Of course we realized that," Mr.
Krueger said. "We weren't naïve about that."

They also understood the financial relationship between the networks and their
analysts. Many analysts were being paid by the "hit," the number of times they
appeared on TV. The more an analyst could boast of fresh inside information from
high-level Pentagon "sources," the more hits he could expect. The more hits, the
greater his potential influence in the military marketplace, where several
analysts prominently advertised their network roles.

"They have taken lobbying and the search for contracts to a far higher level,"
Mr. Krueger said. "This has been highly honed."

Mr. Di Rita, though, said it never occurred to him that analysts might use their
access to curry favor. Nor, he said, did the Pentagon try to exploit this
dynamic. "That's not something that ever crossed my mind," he said. In any
event, he argued, the analysts and the networks were the ones responsible for
any ethical complications. "We assume they know where the lines are," he said.

The analysts met personally with Mr. Rumsfeld at least 18 times, records show,
but that was just the beginning. They had dozens more sessions with the most
senior members of his brain trust and access to officials responsible for
managing the billions being spent in Iraq. Other groups of "key influentials"
had meetings, but not nearly as often as the analysts.

An internal memorandum in 2005 helped explain why. The memorandum, written by a
Pentagon official who had accompanied analysts to Iraq, said that based on her
observations during the trip, the analysts "are having a greater impact" on
network coverage of the military. "They have now become the go-to guys not only
on breaking stories, but they influence the views on issues," she wrote.

Other branches of the administration also began to make use of the analysts. Mr.
Gonzales, then the attorney general, met with them soon after news leaked that
the government was wiretapping terrorism suspects in the United States without
warrants, Pentagon records show. When David H. Petraeus was appointed the
commanding general in Iraq in January 2007, one of his early acts was to meet
with the analysts.

"We knew we had extraordinary access," said Timur J. Eads, a retired Army
lieutenant colonel and Fox analyst who is vice president of government relations
for Blackbird Technologies, a fast-growing military contractor.

Like several other analysts, Mr. Eads said he had at times held his tongue on
television for fear that "some four-star could call up and say, 'Kill that
contract.' " For example, he believed Pentagon officials misled the analysts
about the progress of Iraq's security forces. "I know a snow job when I see
one," he said. He did not share this on TV.

"Human nature," he explained, though he noted other instances when he was
critical.

Some analysts said that even before the war started, they privately had
questions about the justification for the invasion, but were careful not to
express them on air.

Mr. Bevelacqua, then a Fox analyst, was among those invited to a briefing in
early 2003 about Iraq's purported stockpiles of illicit weapons. He recalled
asking the briefer whether the United States had "smoking gun" proof.

" 'We don't have any hard evidence,' " Mr. Bevelacqua recalled the briefer
replying. He said he and other analysts were alarmed by this concession. "We are
looking at ourselves saying, 'What are we doing?' "

Another analyst, Robert L. Maginnis, a retired Army lieutenant colonel who works
in the Pentagon for a military contractor, attended the same briefing and
recalled feeling "very disappointed" after being shown satellite photographs
purporting to show bunkers associated with a hidden weapons program. Mr.
Maginnis said he concluded that the analysts were being "manipulated" to convey
a false sense of certainty about the evidence of the weapons. Yet he and Mr.
Bevelacqua and the other analysts who attended the briefing did not share any
misgivings with the American public.

Mr. Bevelacqua and another Fox analyst, Mr. Cowan, had formed the wvc3 Group,
and hoped to win military and national security contracts.

"There's no way I was going to go down that road and get completely torn apart,"
Mr. Bevelacqua said. "You're talking about fighting a huge machine."

Some e-mail messages between the Pentagon and the analysts reveal an implicit
trade of privileged access for favorable coverage. Robert H. Scales Jr., a
retired Army general and analyst for Fox News and National Public Radio whose
consulting company advises several military firms on weapons and tactics used in
Iraq, wanted the Pentagon to approve high-level briefings for him inside Iraq in
2006.

"Recall the stuff I did after my last visit," he wrote. "I will do the same this
time."

PENTAGON KEEPS TABS

As it happened, the analysts' news media appearances were being closely
monitored. The Pentagon paid a private contractor, Omnitec Solutions, hundreds
of thousands of dollars to scour databases for any trace of the analysts, be it
a segment on "The O'Reilly Factor" or an interview with The Daily Inter Lake in
Montana, circulation 20,000.

Omnitec evaluated their appearances using the same tools as corporate branding
experts. One report, assessing the impact of several trips to Iraq in 2005,
offered example after example of analysts echoing Pentagon themes on all the
networks.

"Commentary from all three Iraq trips was extremely positive over all," the
report concluded.

In interviews, several analysts reacted with dismay when told they were
described as reliable "surrogates" in Pentagon documents. And some asserted that
their Pentagon sessions were, as David L. Grange, a retired Army general and CNN
analyst put it, "just upfront information," while others pointed out,
accurately, that they did not always agree with the administration or each
other. "None of us drink the Kool-Aid," General Scales said.

Likewise, several also denied using their special access for business gain. "Not
related at all," General Shepperd said, pointing out that many in the Pentagon
held CNN "in the lowest esteem."

Still, even the mildest of criticism could draw a challenge. Several analysts
told of fielding telephone calls from displeased defense officials only minutes
after being on the air.

On Aug. 3, 2005, 14 marines died in Iraq. That day, Mr. Cowan, who said he had
grown increasingly uncomfortable with the "twisted version of reality" being
pushed on analysts in briefings, called the Pentagon to give "a heads-up" that
some of his comments on Fox "may not all be friendly," Pentagon records show.
Mr. Rumsfeld's senior aides quickly arranged a private briefing for him, yet
when he told Bill O'Reilly that the United States was "not on a good glide path
right now" in Iraq, the repercussions were swift.

Mr. Cowan said he was "precipitously fired from the analysts group" for this
appearance. The Pentagon, he wrote in an e-mail message, "simply didn't like the
fact that I wasn't carrying their water." The next day James T. Conway, then
director of operations for the Joint Chiefs, presided over another conference
call with analysts. He urged them, a transcript shows, not to let the marines'
deaths further erode support for the war.

"The strategic target remains our population," General Conway said. "We can lose
people day in and day out, but they're never going to beat our military. What
they can and will do if they can is strip away our support. And you guys can
help us not let that happen."

"General, I just made that point on the air," an analyst replied.

"Let's work it together, guys," General Conway urged.

THE GENERALS' REVOLT

The full dimensions of this mutual embrace were perhaps never clearer than in
April 2006, after several of Mr. Rumsfeld's former generals -- none of them
network military analysts -- went public with devastating critiques of his
wartime performance. Some called for his resignation.

On Friday, April 14, with what came to be called the "Generals' Revolt"
dominating headlines, Mr. Rumsfeld instructed aides to summon military analysts
to a meeting with him early the next week, records show. When an aide urged a
short delay to "give our big guys on the West Coast a little more time to buy a
ticket and get here," Mr. Rumsfeld's office insisted that "the boss" wanted the
meeting fast "for impact on the current story."

That same day, Pentagon officials helped two Fox analysts, General McInerney and
General Vallely, write an opinion article for The Wall Street Journal defending
Mr. Rumsfeld.

"Starting to write it now," General Vallely wrote to the Pentagon that
afternoon. "Any input for the article," he added a little later, "will be much
appreciated." Mr. Rumsfeld's office quickly forwarded talking points and
statistics to rebut the notion of a spreading revolt.

"Vallely is going to use the numbers," a Pentagon official reported that
afternoon.

The standard secrecy notwithstanding, plans for this session leaked, producing a
front-page story in The Times that Sunday. In damage-control mode, Pentagon
officials scrambled to present the meeting as routine and directed that
communications with analysts be kept "very formal," records show. "This is very,
very sensitive now," a Pentagon official warned subordinates.

On Tuesday, April 18, some 17 analysts assembled at the Pentagon with Mr.
Rumsfeld and General Pace, then the chairman of the Joint Chiefs.

A transcript of that session, never before disclosed, shows a shared
determination to marginalize war critics and revive public support for the war.

"I'm an old intel guy," said one analyst. (The transcript omits speakers'
names.) "And I can sum all of this up, unfortunately, with one word. That is
Psyops. Now most people may hear that and they think, 'Oh my God, they're trying
to brainwash.' "

"What are you, some kind of a nut?" Mr. Rumsfeld cut in, drawing laughter. "You
don't believe in the Constitution?"

There was little discussion about the actual criticism pouring forth from Mr.
Rumsfeld's former generals. Analysts argued that opposition to the war was
rooted in perceptions fed by the news media, not reality. The administration's
overall war strategy, they counseled, was "brilliant" and "very successful."

"Frankly," one participant said, "from a military point of view, the penalty,
2,400 brave Americans whom we lost, 3,000 in an hour and 15 minutes, is
relative."

An analyst said at another point: "This is a wider war. And whether we have
democracy in Iraq or not, it doesn't mean a tinker's damn if we end up with the
result we want, which is a regime over there that's not a threat to us."

"Yeah," Mr. Rumsfeld said, taking notes.

But winning or not, they bluntly warned, the administration was in grave
political danger so long as most Americans viewed Iraq as a lost cause. "America
hates a loser," one analyst said.

Much of the session was devoted to ways that Mr. Rumsfeld could reverse the
"political tide." One analyst urged Mr. Rumsfeld to "just crush these people,"
and assured him that "most of the gentlemen at the table" would enthusiastically
support him if he did.

"You are the leader," the analyst told Mr. Rumsfeld. "You are our guy."

At another point, an analyst made a suggestion: "In one of your speeches you
ought to say, 'Everybody stop for a minute and imagine an Iraq ruled by
Zarqawi.' And then you just go down the list and say, 'All right, we've got oil,
money, sovereignty, access to the geographic center of gravity of the Middle
East, blah, blah, blah.' If you can just paint a mental picture for Joe America
to say, 'Oh my God, I can't imagine a world like that.' "

Even as they assured Mr. Rumsfeld that they stood ready to help in this public
relations offensive, the analysts sought guidance on what they should cite as
the next "milestone" that would, as one analyst put it, "keep the American
people focused on the idea that we're moving forward to a positive end." They
placed particular emphasis on the growing confrontation with Iran.

"When you said 'long war,' you changed the psyche of the American people to
expect this to be a generational event," an analyst said. "And again, I'm not
trying to tell you how to do your job..."

"Get in line," Mr. Rumsfeld interjected.

The meeting ended and Mr. Rumsfeld, appearing pleased and relaxed, took the
entire group into a small study and showed off treasured keepsakes from his
life, several analysts recalled.

Soon after, analysts hit the airwaves. The Omnitec monitoring reports,
circulated to more than 80 officials, confirmed that analysts repeated many of
the Pentagon's talking points: that Mr. Rumsfeld consulted "frequently and
sufficiently" with his generals; that he was not "overly concerned" with the
criticisms; that the meeting focused "on more important topics at hand,"
including the next milestone in Iraq, the formation of a new government.

Days later, Mr. Rumsfeld wrote a memorandum distilling their collective guidance
into bullet points. Two were underlined:

"Focus on the Global War on Terror -- not simply Iraq. The wider war -- the long
war."

"Link Iraq to Iran. Iran is the concern. If we fail in Iraq or Afghanistan, it
will help Iran."

But if Mr. Rumsfeld found the session instructive, at least one participant,
General Nash, the ABC analyst, was repulsed.

"I walked away from that session having total disrespect for my fellow
commentators, with perhaps one or two exceptions," he said.

VIEW FROM THE NETWORKS

Two weeks ago General Petraeus took time out from testifying before Congress
about Iraq for a conference call with military analysts.

Mr. Garrett, the Fox analyst and Patton Boggs lobbyist, said he told General
Petraeus during the call to "keep up the great work."

"Hey," Mr. Garrett said in an interview, "anything we can do to help."

For the moment, though, because of heavy election coverage and general war
fatigue, military analysts are not getting nearly as much TV time, and the
networks have trimmed their rosters of analysts. The conference call with
General Petraeus, for example, produced little in the way of immediate coverage.

Still, almost weekly the Pentagon continues to conduct briefings with selected
military analysts. Many analysts said network officials were only dimly aware of
these interactions. The networks, they said, have little grasp of how often they
meet with senior officials, or what is discussed.

"I don't think NBC was even aware we were participating," said Rick Francona, a
longtime military analyst for the network.

Some networks publish biographies on their Web sites that describe their
analysts' military backgrounds and, in some cases, give at least limited
information about their business ties. But many analysts also said the networks
asked few questions about their outside business interests, the nature of their
work or the potential for that work to create conflicts of interest. "None of
that ever happened," said Mr. Allard, an NBC analyst until 2006.

"The worst conflict of interest was no interest."

Mr. Allard and other analysts said their network handlers also raised no
objections when the Defense Department began paying their commercial airfare for
Pentagon-sponsored trips to Iraq -- a clear ethical violation for most news
organizations.

CBS News declined to comment on what it knew about its military analysts'
business affiliations or what steps it took to guard against potential
conflicts.

NBC News also declined to discuss its procedures for hiring and monitoring
military analysts. The network issued a short statement: "We have clear policies
in place to assure that the people who appear on our air have been appropriately
vetted and that nothing in their profile would lead to even a perception of a
conflict of interest."

Jeffrey W. Schneider, a spokesman for ABC, said that while the network's
military consultants were not held to the same ethical rules as its full-time
journalists, they were expected to keep the network informed about any outside
business entanglements. "We make it clear to them we expect them to keep us
closely apprised," he said.

A spokeswoman for Fox News said executives "refused to participate" in this
article.

CNN requires its military analysts to disclose in writing all outside sources of
income. But like the other networks, it does not provide its military analysts
with the kind of written, specific ethical guidelines it gives its full-time
employees for avoiding real or apparent conflicts of interest.

Yet even where controls exist, they have sometimes proven porous.

CNN, for example, said it was unaware for nearly three years that one of its
main military analysts, General Marks, was deeply involved in the business of
seeking government contracts, including contracts related to Iraq.

General Marks was hired by CNN in 2004, about the time he took a management
position at McNeil Technologies, where his job was to pursue military and
intelligence contracts. As required, General Marks disclosed that he received
income from McNeil Technologies. But the disclosure form did not require him to
describe what his job entailed, and CNN acknowledges it failed to do additional
vetting.

"We did not ask Mr. Marks the follow-up questions we should have," CNN said in a
written statement.

In an interview, General Marks said it was no secret at CNN that his job at
McNeil Technologies was about winning contracts. "I mean, that's what McNeil
does," he said.

CNN, however, said it did not know the nature of McNeil's military business or
what General Marks did for the company. If he was bidding on Pentagon contracts,
CNN said, that should have disqualified him from being a military analyst for
the network. But in the summer and fall of 2006, even as he was regularly asked
to comment on conditions in Iraq, General Marks was working intensively on
bidding for a $4.6 billion contract to provide thousands of translators to
United States forces in Iraq. In fact, General Marks was made president of the
McNeil spin-off that won the huge contract in December 2006.

General Marks said his work on the contract did not affect his commentary on
CNN. "I've got zero challenge separating myself from a business interest," he
said.

But CNN said it had no idea about his role in the contract until July 2007, when
it reviewed his most recent disclosure form, submitted months earlier, and
finally made inquiries about his new job.

"We saw the extent of his dealings and determined at that time we should end our
relationship with him," CNN said.

[ This article has been revised to reflect the following correction:

Correction: April 22, 2008

An article on Sunday about the Pentagon's relationship with news media military
analysts misidentified the military affiliation of one analyst, John C. Garrett.
He retired as a colonel from the Marines, not the Army. ]

*


Spero News --

April 14, 2008

THE OTHER GUANTANAMO

While few know about the base on Diego Garcia even fewer know how it came into
being. To create the base, the United States, with the help of Great Britain,
exiled all the indigenous people of Diego Garcia and the surrounding Chagos
Archipelago.

By David Vine

http://www.speroforum.com/site/article.asp?id=15052

On the small, remote island of Diego Garcia, in the Indian Ocean halfway between
Africa and Indonesia, the United States has one of the most secretive military
bases in the world. From its position almost 10,000 miles closer to the Persian
Gulf than the east coast of the United States, this huge U.S. air and naval base
has been a major, if little known, launch pad for the wars in Iraq and
Afghanistan. In the past year, the Bush administration has made improvements
that point toward its use in a possible attack on Iran. The administration
recently admitted what it had long denied and what journalists, human rights
investigators, and others had long suspected: The island has also been part of
the CIA's secret "rendition" program for captured terrorist suspects.

While few know about the base on Diego Garcia -- it has long been off-limits to
all non-military personnel -- even fewer know how it came into being. To create
the base, the United States, with the help of Great Britain, exiled all the
indigenous people of Diego Garcia and the surrounding Chagos Archipelago.
Between 1968 and 1973, U.S. and U.K. officials forcibly removed around 2,000
people, called Chagossians, 1,200 miles away to islands in the western Indian
Ocean. Left on the docks of Mauritius and the Seychelles with no resettlement
assistance, the Chagossians, whose ancestry in Chagos dated to the 18th century,
have grown deeply impoverished in exile.

Diego Garcia has become another Guantanamo in more ways than one: The product of
years of deception and lies, a far more secretive detention facility than the
Cuban prison, the cause of immense suffering and pain for an entire people,
Diego Garcia has become mark of shame for the United States that must be
repaired.

Creating a Base, Expelling a People

The Chagossians' ancestors first settled the previously uninhabited Chagos
Archipelago in the late 18th century when their ancestors were brought from
Africa and India as enslaved and indentured laborers to build and work on
coconut plantations run by Franco-Mauritians. Over nearly two centuries, this
diverse group developed into a distinct, emancipated society and a people known
initially as the Ilois -- the Islanders. While far from luxurious, their life by
the mid-20th century was secure, generally free of want, and featured universal
employment and numerous social benefits, including regular if small salaries,
land, free housing, education, pensions, burial services, and basic health care
in islands described by many as "idyllic."

That is until the late 1950s, when U.S. military officials identified Diego
Garcia as a perfect location for a base. In many ways, the original idea for
Diego Garcia presaged the "lily pad" basing strategy of today: Facing a wave of
decolonization, national security officials worried about rising local
opposition to overseas U.S. bases and the threat of eviction posed by local
governments. At the same time, officials increasingly wanted to introduce U.S.
military forces into the Indian Ocean as a way to exert control over the Middle
East and surrounding areas of the decolonizing world. Their solution was what
the U.S. Navy called the "Strategic Island Concept," a plan to identify small
strategically located islands with small local populations that the United
States or its western allies could acquire as future base sites and that would
be insulated from any local threats. Quickly Diego Garcia emerged as a prime
target for acquisition given its relative proximity to potential conflict zones
from the Persian Gulf to southern Africa and southern Asia, space for harboring
an armada of ships and an airstrip, and a small, little known population whose
removal would generate little attention.

In 1960, the U.S. Navy began secret conversations with the British Government
about Diego Garcia. Over the next several years, U.S. officials secured British
agreement to turn the island into a military colony, called the British Indian
Ocean Territory, and, as classified documents show, to provide "exclusive
control" of Diego Garcia "without local inhabitants."

The two governments finalized the deal with a 1966 "exchange of notes" that in
key respects resembles the recent "declaration of principles" on the future U.S.
military presence in Iraq signed by the Bush administration and the Iraqi
cabinet: it effectively created a treaty but circumvented all congressional and
parliamentary oversight. Separate secret agreements provided for $14 million in
undisclosed U.S. payments to allow Britain to create the territory and to take
those "administrative measures" necessary to deport the Chagossians.

Those "administrative measures" meant that beginning in 1968, islanders leaving
Chagos for vacations or medical treatment on the island of Mauritius were barred
from returning to their homes and marooned 1,200 miles away. British officials
next began restricting supplies to the islands, and by the turn of the decade
more Chagossians were leaving as food and medicines dwindled. In cooperation
with U.S. officials, the British meanwhile designed a public relations plan
aimed at, as one official put it, "maintaining the fiction" that the Chagossians
were transient contract workers rather than people with roots in Chagos for five
generations or more.

In 1971, the U.S. Navy began construction on Diego Garcia and ordered the
British to complete the removals. First, U.K. agents and U.S. soldiers on Diego
Garcia herded up the Chagossians' pet dogs and gassed and burned them in front
of their traumatized owners. Then, British agents forced the people to board
overcrowded cargo ships and left them on the docks in Mauritius and the
Seychelles. Upon arrival, the Chagossians received no resettlement assistance
and soon found themselves living in what a 1975 Washington Post article called
"abject poverty." Numbering around 5,000 today and still in exile, most remain
deeply impoverished.

Wars for Oil and Global Dominance

While the Chagossians were being exiled, the Pentagon sold Diego Garcia to
Congress as an "austere" communications facility. As its planners had always
envisioned, however, it soon expanded dramatically. It was pressed into service
almost immediately as a base for reconnaissance planes in the 1973 Israeli-Arab
war. In the years that followed, the base played a central role in the first
large-scale thrust of U.S. military strength into the Middle East.

After the Iranian revolution and the Soviet invasion of Afghanistan in 1979,
Presidents Carter and Reagan developed a "Rapid Deployment Force" (RDF) at bases
in the region to respond to any future threats to U.S. and western oil supplies.
As a main hub for the RDF, Diego Garcia saw the "most dramatic build-up of any
location since the Vietnam War."

Subsequently, the RDF transformed into the U.S. Central Command (CENTCOM), which
came to lead three wars in Iraq and Afghanistan directly related to securing
U.S. and global oil supplies and maintaining the regional and global dominance
of the United States. Diego Garcia played a critical role in each war. During
the first Gulf War, Diego Garcia sent 18 prepositioned ships from its lagoon
loaded with weaponry and supplies to outfit thousands of marines massing in
Saudi Arabia while serving as a launch pad for long-range bombers attacking
Iraqi forces.

After the 1991 war, the military began transforming the island into one of a
handful of major "forward operating bases" as part of a shift of U.S. forces
eastward away from European bases. The dream for many in the military became the
ability to strike any location on the planet from Barksdale Air Base in
Louisiana, Guam in the Pacific, or Diego Garcia.

Following the September 2001 attacks on the United States, the base has assumed
even more importance in the eyes of military officials. Within weeks of
September 11, the Pentagon added 2,000 Air Force personnel at a new 30-acre
housing facility called "Camp Justice." In the 2001 war, B-1, B-2, and B-52
bomber flights originating on Diego Garcia dropped more ordnance on Afghanistan
than any other units. Leading up to the invasion of Iraq, weaponry and supplies
prepositioned in the lagoon were again among the first to arrive at staging
areas near Iraq's borders. The once-secret 2002 "Downing Street" memorandum
showed that U.S. war planners considered basing access on Diego Garcia
"critical" to the invasion. Bombers from the island ultimately helped launch the
Bush administration's tragic war that has led to the deaths of hundreds of
thousands of Iraqis and thousands of U.S. troops.

In early 2007, as the Bush administration was upping the tenor of its rhetoric
against Iran and threatening another invasion, the Defense Department awarded a
$31.9 million contract to build a new submarine base on the island. The subs can
launch Tomahawk cruise missiles and ferry Navy SEALs for amphibious missions
behind enemy lines. Around the same time, the military began shipping extra fuel
supplies to Diego Garcia for possible wartime use.

Long off limits to reporters, the Red Cross, and all other international
observers and far more secretive than Guantanamo Bay, many long suspected the
island was a clandestine CIA "black site" for high-profile detainees. Journalist
Stephen Grey's 2006 book Ghost Plane documented the presence on the island of a
CIA-chartered plane used for rendition flights. On two occasions former U.S.
Army General Barry McCaffrey publicly named Diego Garcia as a detention
facility. A Council of Europe report named the atoll, along with those in Poland
and Romania, as a secret prison.

For more than six years U.S. and U.K. officials adamantly denied the
allegations. This February, British Foreign Secretary David Miliband announced
to Parliament: "Contrary to earlier explicit assurances that Diego Garcia has
not been used for rendition flights, recent U.S. investigations have now
revealed two occasions, both in 2002, when this had in fact occurred." A
representative for Secretary of State Condoleezza Rice said Rice called Miliband
to express regret over the "administrative error." The State Department's chief
legal adviser said CIA officials were "as confident as they can be" that no
other detainees had been held on the island, and CIA Director Michael Hayden
continues to deny the existence of a CIA prison on the island. Within days, UN
special investigator Manfred Novak announced new evidence that others had been
imprisoned on the island. Many suspect the United States may hold detainees on
secret prison ships in Diego Garcia's lagoon or elsewhere in the waters of
Chagos.

Resistance and Remedy

Since their expulsion, the Chagossians have protested in the streets,
petitioned, and held hunger strikes to regain the right to return to their
homeland and win proper compensation for their expulsion. In recent years, they
have taken the U.S. and U.K. governments as well as former U.S. government
officials and military contractors to court over their claims. To date, U.S.
courts have found no wrongdoing on the part of the government, its officials, or
contractors for what one judge described as the "improper misplacement of the
plaintiffs." The government has consistently denied all responsibility for the
Chagossians.

In Britain, by contrast, the islanders have won three major victories over the
British government. Three times -- in 2000, 2006, and 2007 -- the High Court in
London has ruled the islanders' expulsion illegal under U.K. law. In June, the
people will head to the House of Lords, Britain's highest court, for the
government's final appeal over the right to return. Another victory could
finally open the way for a return to Chagos.

With support for the Chagossians' struggle growing in both the United States and
Britain at the same time that revelations about a secret CIA prison are
spreading, the United States must finally act to remedy the damage done by
another Guantanamo damaging too many lives and undermining its international
legitimacy. The United States must allow the Chagossians to return and assist
Britain in paying them proper compensation; the United States must close the
detention facilities and open Diego Garcia to international investigators; the
United States must end the painful irony that is a base the military calls the
"Footprint of Freedom."

[ David Vine is assistant professor of anthropology at American University in
Washington, DC. His book Island of Shame: The Secret History of Exile and Empire
on Diego Garcia (Princeton University Press) will appear in spring 2009. ]

Published by Foreign Policy In Focus (FPIF), a project of the Institute for
Policy Studies (IPS, online at www.ips-dc.org). Copyright © 2008, Institute for
Policy Studies.

*


ABC News --

April 11, 2008

DETAILED DISCUSSIONS WERE HELD ABOUT TECHNIQUES TO USE ON AL QAEDA SUSPECTS

By Jan Crawford Greenburg, Howard L. Rosenberg and Ariane de Vogue

http://abcnews.go.com/print?id=4635175

President Bush says he knew his top national security advisors discussed and
approved specific details about how high-value al Qaeda suspects would be
interrogated by the Central Intelligence Agency, according to an exclusive
interview with ABC News Friday.

"Well, we started to connect the dots, in order to protect the American people."
Bush told ABC News White House correspondent Martha Raddatz. "And, yes, I'm
aware our national security team met on this issue. And I approved."

As first reported by ABC News on Wednesday, the most senior Bush administration
officials repeatedly discussed and approved specific details of exactly how
high-value al Qaeda suspects would be interrogated by the Central Intelligence
Agency.

The high-level discussions about these "enhanced interrogation techniques" were
so detailed, these sources said, some of the interrogation sessions were almost
choreographed -- down to the number of times CIA agents could use a specific
tactic.

These top advisers signed off on how the CIA would interrogate top al Qaeda
suspects -- whether they would be slapped, pushed, deprived of sleep or
subjected to simulated drowning, called waterboarding, sources told ABC news.

The advisers were members of the National Security Council's Principals
Committee, a select group of senior officials who met frequently to advise
President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former
National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld
and Secretary of State Colin Powell, as well as CIA Director George Tenet and
Attorney General John Ashcroft.

As the national security adviser, Rice chaired the meetings, which took place in
the White House Situation Room and were typically attended by most of the
principals or their deputies.

The so-called Principals who participated in the meetings also approved the use
of "combined" interrogation techniques -- using different techniques during
interrogations, instead of using one method at a time -- on terrorist suspects
who proved difficult to break, sources said.

Contacted by ABC News, spokesmen for Tenet and Rumsfeld declined to comment
about the interrogation program or their private discussions in Principals
Meetings. The White House also declined comment on behalf of Rice and Cheney.
Ashcroft could not be reached.

ABC News's Diane Sawyer sat down with Powell this week for a previously
scheduled interview and asked him about the ABC News report.

Powell said that he didn't have "sufficient memory recall" about the meetings
and that he had participated in "many meetings on how to deal with detainees."

Powell said, "I'm not aware of anything that we discussed in any of those
meetings that was not considered legal."

In his interview with ABC News, Bush said the ABC report about the Principals'
involvement was not so "startling." The President had earlier confirmed the
existence of the interrogation program run by the CIA in a speech in 2006. But
before Wednesday's report, the extraordinary level of involvement by the most
senior advisers in repeatedly approving specific interrogation plans--down to
the number of times the CIA could use a certain tactic on a specific al Qaeda
prisoner--had never been disclosed.

Critics at home and abroad have harshly criticized the interrogation program,
which pushed the limits of international law and, they say, condoned torture.
Bush and his top aides have consistently defended the program. They say it is
legal and did not constitute torture.

In interview with ABC's Charles Gibson last year, Tenet said: "It was
authorized. It was legal, according to the Attorney General of the United
States."

The discussions and meetings occurred in an atmosphere of great concern that
another terror attack on the nation was imminent. Sources said the extraordinary
involvement of the senior advisers in the grim details of exactly how individual
interrogations would be conducted showed how seriously officials took the al
Qaeda threat.

It started after the CIA captured top al Qaeda operative Abu Zubaydah in spring
2002 in Faisalabad, Pakistan. When his safe house was raided by Pakistani
security forces along with FBI and CIA agents, Zubaydah was shot three times
during the gun battle.

At a time when virtually all counterterrorist professionals viewed another
attack as imminent -- and with information on al Qaeda scarce -- the detention
of Zubaydah was seen as a potentially critical breakthrough.

Zubaydah was taken to the local hospital, where CIA agent John Kiriakou, who
helped coordinate Zubaydah's capture, was ordered to remain at the wounded
captive's side at all times. "I ripped up a sheet and tied him to the bed,"
Kiriakou said.

But after Zubaydah recovered from his wounds at a secret CIA prison in Thailand,
he was uncooperative. "I told him I had heard he was being a jerk," Kiriakou
recalled. "I said, 'These guys can make it easy on you or they can make it
hard.' It was after that he became defiant."

The CIA wanted to use more aggressive -- and physical -- methods to get
information. ?The agency briefed high-level officials in the National Security
Council's Principals Committee, led by then-National Security Advisor Rice and
including then-Attorney General Ashcroft, which then signed off on the plan,
sources said. It is unclear whether anyone on the committee objected to the
CIA's plans for Zubaydah.

The CIA has confirmed Zubaydah was one of three al Qaeda suspects subjected to
waterboarding. After he was waterboarded, officials say Zubaydah gave up
valuable information that led to the capture of 9/11 mastermind Khalid Sheik
Mohammad and fellow 9/11 plotter Ramzi bin al-Shibh.

Mohammad, who is known as KSM, was also subjected to waterboarding by the CIA.

In the interview with ABC News Friday, Bush defended the waterboarding technique
used against KSM.

"We had legal opinions that enabled us to do it," Bush said. "And, no, I didn't
have any problem at all trying to find out what Khalid Sheikh Mohammed knew."

The President said, "I think it's very important for the American people to
understand who Khalid Sheikh Mohammed was. He was the person who ordered the
suicide attack -- I mean, the 9/11 attacks."

At a hearing before a military tribunal at Guantanamo Bay on March 10, 2007,
KSM, as he is known, said he broke under the harsh interrogation.

COURT: Were any statements you made as the result of any of the treatment that
you received during that time frame from 2003 to 2006? Did you make those
statements because of the treatment you receive from these people?

KSM: Statement for whom??

COURT: To any of these interrogators. ?

KSM: CIA peoples. Yes. At the beginning, when they transferred me...?

Lawyers in the Justice Department had written a classified memo, which was
extensively reviewed, that gave formal legal authority to government
interrogators to use the "enhanced" questioning tactics on suspected terrorist
prisoners. The August 2002 memo, signed by then head of the Office of Legal
Counsel Jay Bybee, was referred to as the so-called "Golden Shield" for CIA
agents, who worried they would be held liable if the harsh interrogations became
public.

Old hands in the intelligence community remembered vividly how past covert
operations, from the Vietnam War-era "Phoenix Program" of assassinations of Viet
Cong to the Iran-Contra arms sales of the 1980s were painted as the work of a
"rogue agency" out of control.

But even after the "Golden Shield" was in place, briefings and meetings in the
White House to discuss individual interrogations continued, sources said. Tenet,
seeking to protect his agents, regularly sought confirmation from the NSC
principals that specific interrogation plans were legal.

According to a former CIA official involved in the process, CIA headquarters
would receive cables from operatives in the field asking for authorization for
specific techniques. Agents, worried about overstepping their boundaries, would
await guidance in particularly complicated cases dealing with high-value
detainees, two CIA sources said.

Highly placed sources said CIA directors Tenet and later Porter Goss along with
agency lawyers briefed senior advisers, including Cheney, Rice, Rumsfeld and
Powell, about detainees in CIA custody overseas.

"It kept coming up. CIA wanted us to sign off on each one every time," said one
high-ranking official who asked not to be identified. "They'd say, 'We've got so
and so. This is the plan.'"

Sources said that at each discussion, all the Principals present approved.
?"These discussions weren't adding value," a source said. "Once you make a
policy decision to go beyond what you used to do and conclude it's legal, (you
should) just tell them to implement it."

Then-Attorney General Ashcroft was troubled by the discussions. He agreed with
the general policy decision to allow aggressive tactics and had repeatedly
advised that they were legal. But he argued that senior White House advisers
should not be involved in the grim details of interrogations, sources said.

According to a top official, Ashcroft asked aloud after one meeting: "Why are we
talking about this in the White House? History will not judge this kindly."

The Principals also approved interrogations that combined different methods,
pushing the limits of international law and even the Justice Department's own
legal approval in the 2002 memo, sources told ABC News.

At one meeting in the summer of 2003 -- attended by Vice President Cheney, among
others -- Tenet made an elaborate presentation for approval to combine several
different techniques during interrogations, instead of using one method at a
time, according to a highly placed administration source.

A year later, amidst the outcry over unrelated abuses of Iraqi prisoners at Abu
Ghraib, the controversial 2002 legal memo, which gave formal legal authorization
for the CIA interrogation program of the top al Qaeda suspects, leaked to the
press. A new senior official in the Justice Department, Jack Goldsmith, withdrew
the legal memo -- the Golden Shield -- that authorized the program.

But the CIA had captured a new al Qaeda suspect in Asia. Sources said CIA
officials that summer returned to the Principals Committee for approval to
continue using certain "enhanced interrogation techniques."

Then-National Security Advisor Rice, sources said, was decisive. Despite growing
policy concerns -- shared by Powell -- that the program was harming the image of
the United States abroad, sources say she did not back down, telling the CIA:
"This is your baby. Go do it."

*


ABC News --

April 9, 2008

SOURCES: TOP BUSH ADVISORS APPROVED 'ENHANCED INTERROGATION'

Detailed Discussions Were Held About Techniques to Use on al Qaeda Suspects

By Jan Crawford Greenburg, Howard L. Rosenberg and Ariane de Vogue

http://abcnews.go.com/print?id=4583256

In dozens of top-secret talks and meetings in the White House, the most senior
Bush administration officials discussed and approved specific details of how
high-value al Qaeda suspects would be interrogated by the Central Intelligence
Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use
of "combined" interrogation techniques -- using different techniques during
interrogations, instead of using one method at a time -- on terrorist suspects
who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA
would interrogate top al Qaeda suspects -- whether they would be slapped,
pushed, deprived of sleep or subjected to simulated drowning, called
waterboarding.

The high-level discussions about these "enhanced interrogation techniques" were
so detailed, these sources said, some of the interrogation sessions were almost
choreographed -- down to the number of times CIA agents could use a specific
tactic.

The advisers were members of the National Security Council's Principals
Committee, a select group of senior officials who met frequently to advise
President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former
National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld
and Secretary of State Colin Powell, as well as CIA Director George Tenet and
Attorney General John Ashcroft.

As the national security adviser, Rice chaired the meetings, which took place in
the White House Situation Room and were typically attended by most of the
principals or their deputies.

Contacted by ABC News today, spokesmen for Tenet, Rumsfeld and Powell declined
to comment about the interrogation program or their private discussions in
Principals Meetings. Powell said through an assistant there were "hundreds of
[Principals] meetings" on a wide variety of topics and that he was "not at
liberty to discuss private meetings."

The White House also declined comment on behalf of Rice and Cheney. Ashcroft
could not be reached for comment today.

Critics at home and abroad have harshly criticized the interrogation program,
which pushed the limits of international law and, they say, condoned torture.
Bush and his top aides have consistently defended the program. They say it is
legal and did not constitute torture.

"I can say that questioning the detainees in this program has given us the
information that has saved innocent lives by helping us stop new attacks here in
the United States and across the world," Bush said in a speech in September
2006.

In interview with ABC's Charles Gibson last year, Tenet said: "It was
authorized. It was legal, according to the Attorney General of the United
States."

But this is the first time sources have disclosed that a handful of the most
senior advisers in the White House explicitly approved the details of the
program. According to multiple sources, it was members of the Principals
Committee that not only discussed specific plans and specific interrogation
methods, but approved them.

The discussions and meetings occurred in an atmosphere of great concern that
another terror attack on the nation was imminent. Sources said the extraordinary
involvement of the senior advisers in the grim details of exactly how individual
interrogations would be conducted showed how seriously officials took the al
Qaeda threat.

It started after the CIA captured top al Qaeda operative Abu Zubaydah in spring
2002 in Faisalabad, Pakistan. When his safe house was raided by Pakistani
security forces along with FBI and CIA agents, Zubaydah was shot three times
during the gun battle.

At a time when virtually all counterterrorist professionals viewed another
attack as imminent -- and with information on al Qaeda scarce -- the detention
of Zubaydah was seen as a potentially critical breakthrough.

Zubaydah was taken to the local hospital, where CIA agent John Kiriakou, who
helped coordinate Zubaydah's capture, was ordered to remain at the wounded
captive's side at all times. "I ripped up a sheet and tied him to the bed,"
Kiriakou said.

But after Zubaydah recovered from his wounds at a secret CIA prison in Thailand,
he was uncooperative.

"I told him I had heard he was being a jerk," Kiriakou recalled. "I said, 'These
guys can make it easy on you or they can make it hard.' It was after that he
became defiant."

The CIA wanted to use more aggressive -- and physical -- methods to get
information.

The agency briefed high-level officials in the National Security Council's
Principals Committee, led by then-National Security Advisor Rice and including
then-Attorney General Ashcroft, which then signed off on the plan, sources said.
It is unclear whether anyone on the committee objected to the CIA's plans for
Zubaydah.

The CIA has confirmed Zubaydah was one of three al Qaeda suspects subjected to
waterboarding.

After he was waterboarded, officials say Zubaydah gave up valuable information
that led to the capture of 9/11 mastermind Khalid Sheik Mohammad and fellow 9/11
plotter Ramzi bin al-Shibh.

Mohammad was also subjected to waterboarding by the CIA. At a hearing before a
military tribunal at Guantanamo Bay on March 10, 2007, KSM, as he is known, said
he broke under the harsh interrogation.

COURT: Were any statements you made as the result of any of the treatment that
you received during that time frame from 2003 to 2006? Did you make those
statements because of the treatment you receive from these people?

KSM: Statement for whom?

COURT: To any of these interrogators.

KSM: CIA peoples. Yes. At the beginning, when they transferred me...

Lawyers in the Justice Department had written a classified memo, which was
extensively reviewed, that gave formal legal authority to government
interrogators to use the "enhanced" questioning tactics on suspected terrorist
prisoners. The August 2002 memo, signed by then head of the Office of Legal
Counsel Jay Bybee, was referred to as the so-called "Golden Shield" for CIA
agents, who worried they would be held liable if the harsh interrogations became
public.

Old hands in the intelligence community remembered vividly how past covert
operations, from the Vietnam War-era "Phoenix Program" of assassinations of Viet
Cong to the Iran-Contra arms sales of the 1980s were painted as the work of a
"rogue agency" out of control.

But even after the "Golden Shield" was in place, briefings and meetings in the
White House to discuss individual interrogations continued, sources said. Tenet,
seeking to protect his agents, regularly sought confirmation from the NSC
principals that specific interrogation plans were legal.

According to a former CIA official involved in the process, CIA headquarters
would receive cables from operatives in the field asking for authorization for
specific techniques. Agents, worried about overstepping their boundaries, would
await guidance in particularly complicated cases dealing with high-value
detainees, two CIA sources said.

Highly placed sources said CIA directors Tenet and later Porter Goss along with
agency lawyers briefed senior advisers, including Cheney, Rice, Rumsfeld and
Powell, about detainees in CIA custody overseas.

"It kept coming up. CIA wanted us to sign off on each one every time," said one
high-ranking official who asked not to be identified. "They'd say, 'We've got so
and so. This is the plan.'"

Sources said that at each discussion, all the Principals present approved.

"These discussions weren't adding value," a source said. "Once you make a policy
decision to go beyond what you used to do and conclude it's legal, (you should)
just tell them to implement it."

Then-Attorney General Ashcroft was troubled by the discussions. He agreed with
the general policy decision to allow aggressive tactics and had repeatedly
advised that they were legal. But he argued that senior White House advisers
should not be involved in the grim details of interrogations, sources said.

According to a top official, Ashcroft asked aloud after one meeting: "Why are we
talking about this in the White House? History will not judge this kindly."

The Principals also approved interrogations that combined different methods,
pushing the limits of international law and even the Justice Department's own
legal approval in the 2002 memo, sources told ABC News.

At one meeting in the summer of 2003 -- attended by Vice President Cheney, among
others -- Tenet made an elaborate presentation for approval to combine several
different techniques during interrogations, instead of using one method at a
time, according to a highly placed administration source.

A year later, amidst the outcry over unrelated abuses of Iraqi prisoners at Abu
Ghraib, the controversial 2002 legal memo, which gave formal legal authorization
for the CIA interrogation program of the top al Qaeda suspects, leaked to the
press. A new senior official in the Justice Department, Jack Goldsmith, withdrew
the legal memo -- the Golden Shield -- that authorized the program.

But the CIA had captured a new al Qaeda suspect in Asia. Sources said CIA
officials that summer returned to the Principals Committee for approval to
continue using certain "enhanced interrogation techniques."

Then-National Security Advisor Rice, sources said, was decisive. Despite growing
policy concerns -- shared by Powell -- that the program was harming the image of
the United States abroad, sources say she did not back down, telling the CIA:
"This is your baby. Go do it."

*


New York Times --

March 30, 2008
DEBATE AND PROTEST AT SPY PROGRAM'S INCEPTION

by Eric Lichtblau

http://www.nytimes.com/2008/03/30/washington/30nsa.html

This article is adapted from the book "Bush's Law: The Remaking of American
Justice," by Eric Lichtblau, which is being released Tuesday by Pantheon Books.

WASHINGTON -- The National Security Agency's eavesdropping program sparked
heated legal concerns and silent protests inside the Bush administration within
hours of its adoption in October 2001, according to current and former
government officials.

In making its case to Congress for broadened spy powers, the White House has
emphasized the firm legal foundations of the program conducted after the Sept.
11 attacks. It has even taken the unusual step of giving lawmakers access to
classified presidential orders from 2001 and early legal opinions to try to show
that the program was on sound legal footing from the start.

But many of the tensions that were roiling the administration at the start of
the program have never become public.

In one previously undisclosed episode, Deputy Attorney General Larry Thompson
refused to sign off on any of the secret wiretapping requests that grew out of
the program because of the secrecy and legal uncertainties surrounding it, the
officials said. With the veil of secrecy around the program, Mr. Thompson was
not given access to details of the NSA operation, and he was so uncomfortable
with the idea of approving this new breed of wiretap applications that he had a
top adviser write a memorandum assessing the legal ramifications. The adviser
warned him not to sign the warrant applications because it was unclear where the
wiretaps were coming from.

Inside the Federal Bureau of Investigation, meanwhile, technicians stumbled onto
the NSA's program accidentally within 12 hours of its inception, setting off
what officials described as a brief firestorm of anxiety among senior officials.
Some who had not been told about the program were concerned that the agency was
violating laws that required a court order for the singling out of Americans in
wiretaps, and they immediately alerted higher-ups to what they had discovered.
"What's going on here? Is this legal?" one FBI official asked after learning of
the NSA operation on American soil.

Robert S. Mueller III, the FBI director, assured nervous officials that the
program had been approved by President Bush, several officials said. But the
presidential approval, one former intelligence official disclosed, came without
a formal legal opinion endorsing the program by the Office of Legal Counsel at
the Justice Department.

At the outset of the program in October 2001, John Ashcroft, the attorney
general, signed off on the surveillance program at the direction of the White
House with little in the way of a formal legal review, the official said. Mr.
Ashcroft complained to associates at the time that the White House, in getting
his signature for the surveillance program, "just shoved it in front of me and
told me to sign it."

Aides to Mr. Ashcroft were worried, however, that in approving a surveillance
program that appeared to test the limits of presidential authority, Mr. Ashcroft
was left legally exposed without a formal opinion from the Office of Legal
Counsel, which acts as the legal adviser for the entire executive branch.

At that time, the office had already issued a broad, classified opinion
declaring the president's surveillance powers in the abstract in wartime, but it
had not weighed in on the legality or the specifics of the NSA operation,
officials said.

The nervousness among Justice Department officials led the administration to
secure a formal opinion from John Yoo, a deputy in the Office of Legal Counsel,
declaring that the president's wartime powers allowed him to order the NSA to
intercept international communication of terror suspects without a standard
court warrant.

The opinion itself remains classified and has not been made public. It was
apparently written in late 2001 or early 2002, but it was revised in 2004 by a
new cast of senior lawyers at the Justice Department, who found the earlier
opinion incomplete and somewhat shoddy, leaving out important case law on
presidential powers. Mr. Yoo declined to discuss the issue. Even after the final
legal opinions were written, lawyers at the National Security Agency were not
allowed to see them, officials said.

Justice Department officials declined to comment for this article, saying that
they would not discuss internal deliberations on a classified program. The White
House also declined to comment. The White House is now at an impasse with the
House of Representatives over Mr. Bush's efforts to secure broader spy powers
for the NSA as well as retroactive immunity for the phone companies that helped
in the warrantless wiretapping program. The Senate has agreed to give immunity,
but the House has refused. Talks will begin anew this week when Congress returns
from a two-week break.

In the past, the White House has said there was widespread agreement among
administration officials about the president's authority to order warrantless
surveillance inside the United States. Former Attorney General Alberto R.
Gonzales told Congress that there was never any disagreement within the
administration over the issue. After it was disclosed that senior Justice
Department officials had threatened to resign over aspects of the program in
2004, lawmakers attacked the truthfulness of Mr. Gonzales's remarks, and the
inspector general's office is now reviewing his remarks as well.

In public comments of his own in 2006, Gen. Michael Hayden, who ran the NSA at
the start of the surveillance program and now heads the Central Intelligence
Agency, recounted going to three lawyers at the security agency separately at
the start of the eavesdropping program to get their legal opinions about it. All
agreed that the president was within his powers to authorize the program, Mr.
Hayden said. NSA was "good to go," he said he concluded.

At the insistence of Vice President Dick Cheney, knowledge of the program was
restricted to a tight circle of top officials and Congressional briefings were
unusually limited. But several current and former officials involved in the
program said they believed the intense secrecy was to blame for much of the
early nervousness among other senior officials who had integral roles in
intelligence operations yet were not allowed to know the full details of what
was happening.

At the Justice Department, for instance, the fact that Mr. Thompson, the second-
ranking official, was not given access to the program led to problems in getting
court-approved wiretap applications signed for those surveillance operations
that started as warrantless NSA operations. With Mr. Thompson refusing to sign
off on the new applications, the Justice Department had to adopt the cumbersome
process of segregating the applications that grew out of the NSA program,
routing them around Mr. Thompson for Mr. Ashcroft's signature.

At the FBI, the secrecy and questions surrounding the program bred suspicion
among officials. "It was a huge mistake," said one official. "They were too
secretive."

*


March 28, 2008

LAWYER: GITMO TRIALS PEGGED TO '08 CAMPAIGN

by Carol Rosenberg

http://www.miamiherald.com/1218/story/474196.html

The Navy lawyer for Osama bin Laden's driver argues in a Guantanamo military
commissions motion that senior Pentagon officials are orchestrating war crimes
prosecutions for the 2008 campaign.

The Pentagon declined late Friday to address the defense lawyer's allegations,
noting that the matter is under litigation.

The brief filed Thursday by Navy Lt. Cmdr. Brian Mizer directly challenged the
integrity of President Bush's war court.

Notably, it describes a Sept. 29, 2006, meeting at the Pentagon in which Deputy
Defense Secretary Gordon England, a veteran White House appointee, asked lawyers
to consider Sept. 11, 2001, prosecutions in light of the campaign.

"We need to think about charging some of the high-value detainees because there
could be strategic political value to charging some of these detainees before
the election," England is quoted as saying.

A senior Pentagon spokesman, Bryan Whitman, declined to address the specifics,
saying "the trial process will surface the facts in this case."

"It has always been everybody's desire to move as swiftly and deliberately as
possible to conduct military commissions," he added. "But I can tell you
emphatically that leadership has always been extraordinarily careful to guard
against any unlawful command influence."

The brief quotes England as a stipulation of fact and cites other examples of
alleged political interference, which Mizer argues makes it impossible for Salim
Hamdan, 37, to have a fair trial.

It asks the judge, Navy Capt. Keith Allred, to dismiss the case against Hamdan
as an alleged 9/11 co-conspirator on the grounds that Bush administration
leadership exercises "unlawful command influence."

Allred has set hearings at Guantanamo for April 30.

Hamdan is the former Afghanistan driver of al Qaeda leader Osama bin Laden whose
lawyers challenged an earlier war court format to the U.S. Supreme Court, which
struck down the war court as unconstitutional.

Pentagon prosecutors call him a war criminal for driving bin Laden in
Afghanistan before and during the 9/11 attacks and allegedly working as his
sometimes bodyguard. Even if he didn't help plot the suicide attacks, they
argue, he is an al Qaeda co-conspirator.

As described the Hamdan brief, the England meeting came three weeks after
President Bush disclosed in a live address that he had ordered the CIA to
transfer "high-value detainees" from years of secret custody to Guantanamo for
trial.

Bush also disclosed that the CIA used "an alternative set of procedures" to
interrogate the men into confessing -- since revealed by the CIA director, Air
Force Gen. Michael V. Hayden, to include waterboarding.

They included reputed 9/11 mastermind Khalid Sheik Mohammed and four other men
against whom the Pentagon prosecutor swore out death-penalty charges in a
complex Sept. 11, 2001, conspiracy case on Feb. 11.

The proposed 90-page charge sheets list the names of 2,973 victims of the 9/11
attacks. The men have not been formally charged. Instead they are in the control
of a White House appointee, Susan J. Crawford, whose title is the war court's
convening authority, and her legal advisor, Brig. Gen. Thomas Hartmann.

Under the law governing the commissions, the alleged 9/11 conspirators would
formally be charged 30 days after Crawford approves them.

That currently leaves a seven-month window during the 2008 election campaign.

An expert on military justice, attorney Eugene Fidell, said the Hamdan motion
brings into sharp relief the problem of Pentagon appointees' supervisory
relationship to the war court.

"It scrambles relationships that ought to be kept clear," said Fidell,
president of the National Institute of Military Justice.

The quote attributed to England is "enough that you'd want to hold an
evidentiary hearing about it, with live witnesses. It does strike me as
disturbing for there to be even a whiff of political considerations in what
should be a quasi-judicial determination."

England is a two-term White House appointee. He joined the Bush administration
in 2001 as Navy secretary, briefly served as deputy Homeland Security secretary
and then returned to the Pentagon, where he supervised the prison camps'
administrative processes.

Crawford was a Republican attorney appointee in the Pentagon when Vice President
Dick Cheney was defense secretary.

Hamdan's military lawyer argues that standard military justice has barriers that
separate various functions, which he contends Pentagon appointees have crossed
in the war court.

In April the defense team plans to call the former chief prosecutor, Air Force
Col. Morris Davis, who recounted the England remark since submitting his
resignation, claiming political interference.

Davis, who had approved charges against Hamdan, served as former chief Pentagon
prosecutor until he resigned over what he called political interference by
general counsel William J. Haynes.

Haynes has since quit.

They also want to call as a witness the deputy chief defense counsel, a retired
Army lawyer named Michael Berrigan, who, according to the filing, was
mistakingly sent a draft copy of 9/11 conspiracy charges being prepared by the
prosecution.

In the filing, Hartmann, the legal advisor, orders Berrigan to return it, which
the defense team claims illustrates the muddied role of the legal advisor.

He supervised the prosecution, announced the 9/11 conspiracy charges on Feb. 11,
then said he would evaluate them independently and recommend to Crawford how to
proceed.

The Mizer motion is also the latest attack on the legitimacy of war-court
prosecutions by a variety of feisty uniformed defense attorneys, who have
doggedly used civilian courts and courted public opinion against the process
since the earliest days.

Mizer sent the brief directly to reporters for major news organizations, rather
than leave it to the Office of Military Commissions to post it on a Pentagon
website.

The Pentagon has been releasing motions for the public to read after they have
been argued -- and ruled on by the judge.

With delays in other cases, the Hamdan case is now on track to be the first
full-blown U.S. war-crimes tribunal since World War II.

The current time frame would put the trial before the Supreme Court rules on an
overarching detainee rights case in June.

*


New York Times --

March 28, 2008

TAPES' DESTRUCTION HOVERS OVER DETAINEE CASES

by Mark Mazzetti and Scott Shane

http://www.nytimes.com/2008/03/28/washington/28intel.html

WASHINGTON -- When officers from the Central Intelligence Agency destroyed
hundreds of hours of videotapes documenting harsh interrogations in 2005, they
may have believed they were freeing the government and themselves from
potentially serious legal trouble.

But nearly four months after the disclosure that the tapes were destroyed, the
list of legal entanglements for the CIA, the Defense Department and other
agencies is only growing longer. In addition to criminal and Congressional
investigations of the tapes' destruction, the government is fighting off
challenges in several major terrorism cases and a raft of prisoners' legal
claims that it may have destroyed evidence.

"They thought they were saving themselves from legal scrutiny, as well as
possible danger from Al Qaeda if the tapes became public," said Frederick P.
Hitz, a former CIA officer and the agency's inspector general from 1990 to 1998,
speaking of agency officials who favored eliminating the tapes. "Unknowingly,
perhaps, they may have created even more problems for themselves."

In a suit brought by Hani Abdullah, a Yemeni prisoner at Guantanamo Bay, Cuba, a
federal judge has raised the possibility that, by destroying the tapes, the CIA
violated a court order to preserve all evidence relevant to the prisoner. In at
least 12 other lawsuits, lawyers for prisoners at Guantanamo and elsewhere have
filed legal challenges citing the CIA tapes' destruction, said David H. Remes, a
Washington lawyer representing 16 prisoners.

"This is like any other cover-up," Mr. Remes said. "We've only scratched the
surface."

Plans for the possible prosecution of another prisoner, Ali al-Marri, who has
been held since 2003 in a naval brig in Charleston, S.C., could be in jeopardy
after the Pentagon recently revealed that it had destroyed some tapes of Mr.
Marri's interrogation. Other tapes showing rough treatment of Mr. Marri, which
were discovered in a Pentagon review ordered after the CIA revelations and have
been preserved, could prove embarrassing if presented at his trial.

The destruction of tapes has also prompted challenges from lawyers for Zacharias
Moussaoui, the convicted Qaeda operative who had unsuccessfully sought testimony
at his trial from Abu Zubaydah, one of the two Qaeda suspects whose
interrogation videotapes were destroyed in November 2005. At that time, a
defense motion seeking records of Abu Zubaydah's interrogation was pending
before a federal court in Virginia.

This motion in the Moussaoui case, among other legal challenges, has raised
questions about a statement in December by the CIA director, Gen. Michael V.
Hayden, that he understood the tapes were destroyed only after it was determined
that they were "not relevant to any internal, legislative, or judicial
inquiries."

A CIA spokesman, Paul Gimigliano, said General Hayden "certainly stands by his
statement." He added: "The CIA has been cooperating with the Department of
Justice, the courts and the Congress. The reviews of this matter are not
complete, and it is only fair to let them conclude before trying to draw
conclusions from them or about them."

Officially, the CIA has said that the tapes were destroyed primarily because of
concerns that their public exposure could endanger the safety of CIA officers.
But in interviews in recent months with several officers involved in the
decision, they said that a primary factor was the legal risks that officers
shown on the tape might face.

Lawyers involved in the cases said it still appeared unlikely that a terrorist
suspect could go free as a result of the destruction of the videotapes. But they
said that judges might decide to exclude evidence in some of the cases,
potentially undermining the government's position and jeopardizing future
prosecutions.

All of the court challenges are playing out against the backdrop of the criminal
investigation, led by a veteran prosecutor, John H. Durham, who is examining
whether destruction of the tapes was an illegal obstruction of justice. A
separate investigation by the House Intelligence Committee will soon begin
interviewing officials from the White House and the CIA, possibly under
subpoena, about their roles in the destruction of the tapes.

Congressional officials said that among the White House officials they intend to
interview are David S. Addington, chief counsel for Vice President Dick Cheney,
and former Attorney General Alberto R. Gonzales. The list of current and former
CIA officials includes the former CIA directors George J. Tenet and Porter J.
Goss as well as several CIA lawyers who gave legal advice about the tapes.

Little is known about the progress of the criminal investigation led by Mr.
Durham. But his team has interviewed members of the Sept. 11 commission,
including Philip D. Zelikow, the panel's former executive director, as part of
an inquiry into whether the CIA broke the law by withholding the tapes from the
commission.

Mr. Hitz, the former CIA inspector general, said the government's legal woes
could be traced to what he believed was an unwise decision to use harsh physical
pressure during interrogations. Those techniques had Justice Department
approval. But a public backlash set in, which was a factor in the CIA's decision
to destroy the tapes in late 2005.

By then, the CIA's secret detention program was tied up in a complex web of
legal claims and counterclaims.

Beyond that, Mr. Durham, the prosecutor, has found 17 court orders in 21
lawsuits that required preservation of evidence, and he has said in court papers
that his team is investigating whether the tapes' destruction violated those
orders.

One of the court orders, issued in July 2005 by Judge Richard W. Roberts of the
Federal District Court in Washington, required the preservation of all evidence
related to Hani Abdullah, the Yemeni prisoner at Guantanamo, who is accused of
attending a Qaeda training camp in 2001 and other offenses. Judge Roberts said
in a January order that Mr. Abdullah's lawyers had made a plausible case that
Abu Zubaydah would have been asked about their client in interrogations.

Mr. Abdullah's lawyers, who are challenging his detention as an enemy combatant,
assert that the tapes might have helped their case, either by showing Abu
Zubaydah did not know their client or that anything incriminating he may have
said resulted from harsh treatment.

The remaining tapes of Mr. Marri, the prisoner at the Charleston brig who is
challenging his indefinite detention, could create legal headaches for Justice
Department lawyers should they someday bring him to trial.

During any future trial, Mr. Marri's lawyers could show a jury interrogation
tapes showing that he had been treated roughly. In addition, they could exploit
the Pentagon's admission that it has destroyed some tapes of Mr. Marri's
interrogation to make the case that the government withheld evidence from the
defense.

Despite all the legal complications, those in the CIA who got rid of the
videotapes may have achieved one of their presumed goals: preventing a torture
prosecution, said Deborah Colson, a senior associate at Human Rights First.

"It may be impossible to reconstruct any criminal conduct that was caught on the
tapes," Ms. Colson said.

*


The New Yorker --

March 24, 2008

EXPOSURE
The woman behind the camera at Abu Ghraib.

by Philip Gourevitch and Errol Morris

http://www.newyorker.com/reporting/2008/03/24/080324fa_fact_gourevitch

All that the soldiers of the 372nd Military Police Company, a Reserve unit out
of Cresaptown, Maryland, knew about America's biggest military prison in Iraq,
when they arrived there in early October of 2003, was that it was on the front
lines. Its official name was Forward Operating Base Abu Ghraib. Never mind that
military doctrine and the Geneva Conventions forbid holding prisoners in a
combat zone, and require that they be sped to the rear; you had to make the
opposite sort of journey to get to Abu Ghraib. You had to travel along some of
the deadliest roads in the country, constantly bombed and frequently ambushed,
into the Sunni Triangle. The prison squatted on the desert, a wall of sheer
concrete traced with barbed wire, picketed by watchtowers. "Like something from
a Mad Max movie," Sergeant Javal Davis, of the 372nd, said. "Just like that --
like, medieval." There were more than two and a half miles of wall with twenty-
four towers, enclosing two hundred and eighty acres of prison ground. And
inside, Davis said, "it's nothing but rubble, blown-up buildings, dogs running
all over the place, rabid dogs, burnt remains. The stench was unbearable: urine,
feces, body rot."

The prisoners -- several thousand of them, clad in orange -- were crowded behind
concertina wire. "The encampment they were in when we saw it at first looked
like one of those Hitler things, like a concentration camp, almost," Davis said.
"They're in there, in their little jumpsuits, outside in the mud. Their rest
rooms was running over. It was just disgusting. You didn't want to touch
anything. Whatever the worst thing that comes to your mind, that was it -- the
place you would never, ever, ever, ever send your worst enemy."

The M.P.s of the 372nd were told to make themselves at home in an abandoned
prison block, a compound ravaged by looters and invaded by the desert. The sand
lay several inches deep in places, mixed with decomposing trash. Moving in meant
digging out and sweeping up, and when you'd purged the debris -- weird stuff,
some of it; for instance, used syringes, which just made you wonder -- what you
had were bare prison cells. The military term of art for the place where
soldiers sleep and bathe and eat on base is L.S.A., which means "life-support
area," and at other forward operating bases around Iraq an L.S.A. meant climate-
controlled tents and a mess hall, electricity and hot water, a gym and an
Internet cafe, phones and satellite television, PX shops and fast-food joints. A
proper L.S.A. is an outpost of the motherland, and it affirms the sense of pride
and tribe that is essential to morale and discipline. At Abu Ghraib, showers
were wooden sheds with cold-water drums propped overhead. The unit had no field
kitchen, so chow was combat rations -- MREs, meals-ready-to-eat -- breakfast,
lunch, and dinner in a cardboard box; everything in a polymer packet.


Nobody had expected luxury at Saddam Hussein's old prison, but morale was low to
begin with -- the M.P.s just wanted to know when they were going home -- and
there was something about living in cells at Abu Ghraib that never felt right.
"We had some kind of incinerator at the end of our building," Specialist Megan
Ambuhl said. "It was this huge circular thing. We just didn't know what was
incinerated in there. It could have been people, for all we knew -- bodies."
Sergeant Davis was not in doubt. "It had bones in it," he said, and he called it
the crematorium. "But hey, you're at war," he said. "Suck it up or drive on."

The autumn nights were getting cold in the desert, down to forty degrees, which
felt colder in a concrete box, where the wind blew in through empty window
frames. From some of those windows you could look out over the prison's
perimeter wall into the windows of an apartment complex in the city of Abu
Ghraib, a sprawling Baghdad suburb long dominated by Saddam's Baath Party
functionaries, and the people in those apartments could look back at you. As the
M.P.s unpacked their kit in their new quarters, they were told that snipers
sometimes made use of this arrangement to shoot into the prison. The trick was
not to make yourself a target: stay away from the windows, keep your lamps dim
and covered -- don't cast a shadow.


On her first night at the prison, Specialist Sabrina Harman, a twenty-six-year-
old M.P. from Virginia, wrote a letter home to the woman she called her wife:

Kelly

Its 9:00 pm and we can hear shots -- no white lights are allowed to be on at
night no leaving the building after dark. I hope we aren't here long! We drove
in and two helicopters were landed taking prisoners off.

I'm scared of helicopters because of the dream. I think I wrote it down before.
I saw a helicopter and it looked like the tail was swaying back and forth then
it did it again then a huge flame/round shot up and it exploded. I turned around
and we were under attack, I didn't have my weapon (gun) so all we could do was
hide under these picknick tables. So back to the prison ... we get to our
buildings and I step out of my truck right in front of a picknick table. -- I
almost freaked out. I have a bad feeling about this place. I want to leave as
soon as possible! We are still hoping to be home X-mas or soon after. --
I love you.

I'm going to get some sleep.

I'll write you again soon.

Please don't give up on me!

                                         Sabrina


Like many young reservists, Harman had joined the Army to help pay for college.
She had never imagined that she'd see war, and Iraq often felt unreal to her;
"like a dream," she said. Then she had that dream -- about a gunman shooting at
a helicopter from a date palm while she hid, unarmed, beneath a picnic table --
and it was all too real. "And it kind of came true, maybe two or three weeks
later," she said. "Down the road, they started shooting helicopters from date
trees."

That was in Al Hillah, a Shiite town near the ruins of ancient Babylon, sixty
miles south of Baghdad, where the 372nd M.P.s had been stationed since they
started arriving in Iraq, in May. Having sat out the Shock and Awe phase of the
invasion at Fort Lee, in Virginia, they were sent in through Kuwait shortly
after George W. Bush, standing beneath a "Mission Accomplished" banner,
declared, in May of 2003, that "major combat operations in Iraq have ended" --
and in Al Hillah, during that first summer of the war, they had. The M.P.s felt
safe walking the streets; they made friends among the Iraqis, played with the
kids, shopped in the markets, shared meals at the outdoor cafes. Their
headquarters, in an abandoned date-processing factory, were minimally fortified,
and were never attacked. Their mission was to provide combat support for the
First Marine Expeditionary Force, which controlled the city, and to train local
policemen for duty under a new national government. They understood their
presence to be temporary, expecting that America would hand over the country to
democratically elected Iraqis by summer's end, then get out of the way.

To Harman, the assignment felt like a peacekeeping mission, not a tour of
combat, and she wasn't complaining. She was known in the unit as someone who
hated to see or do violence. "Sabrina literally would not hurt a fly," her team
leader, Sergeant Hydrue Joyner, said. "If there's a fly on the floor and you go
to step on it, she will stop you." Specialist Jeremy Sivits, a mechanic in the
company's motor pool, said, "We'd try to kill a cricket, because it kept us up
all night in the tent. She would push us out of the way to get to this cricket,
and would go running out of the tent with it. She could care less if she got
sleep, as long as that cricket was safe." That made Sivits laugh, but he worried
that she wouldn't survive a firefight. Joyner agreed. "As a soldier, you can't
allow your heart to get in the way sometimes, because the moment you do you may
get killed or may get someone else killed," he said. "But with Sabrina, I think
she would have made a better humanitarian than a soldier, and I don't mean that
in a negative way." Sivits couldn't figure why she had joined the military. "She
was just too nice to be a soldier," he said.

Harman said that she had wanted to be a cop, like her father and her brother,
and her idea was to become a forensic photographer. Pictures had always
fascinated her. She made an album of the snapshots people took of her: a
diapered toddler in a blue knit cap sitting beside a yellow telephone, her mouth
wide open with mirth; a little girl with perfectly combed and bobbed bangs,
kneeling in an elaborately frilled dress, white stockings, and white gloves, on
a green carpet against a studio backdrop of rampantly blooming cherry trees; a
girl riding a pony; a teen-age girl with head shorn to a boyish crop, wearing
dungarees and boots and a loose oversized flannel shirt beneath a loose black
leather motorcycle jacket; a young woman squinting in a sun-blasted parking lot,
wearing full camouflage -- helmet, flak jacket, cargo pants -- and carrying a
riot baton. It was an ordinary album except for one thing: the directness with
which she met the camera, eye to eye, looking frankly through the lens as if she
were the one taking the picture.

She liked to look. She might recoil from violence, but she was drawn to its
aftermath. When others wanted to look away, she'd want to look more closely.
Wounded and dead bodies fascinated her. "She would not let you step on an ant,"
Sergeant Davis said. "But if it dies she'd want to know how it died." And taking
pictures fascinated her. "Even if somebody is hurt, the first thing I think
about is taking photos of that injury," Harman said. "Of course, I'm going to
help them first, but the first reaction is to take a photo." In July, she wrote
to her father, "On June 23 I saw my first dead body I took pictures! The other
day I heard my first grenade go off. Fun!" Later, she paid a visit to an Al
Hillah morgue and took pictures: mummified bodies, smoked by decay; extreme
closeups of their faces, their lifeless hands, the torn flesh and bone of their
wounds; a punctured chest, a severed foot. The photographs are ripe with
forensic information. Harman also had her picture taken at the morgue, leaning
over one of the blackened corpses, her sun-flushed cheek inches from its crusted
eye sockets. She is smiling -- a forced but lovely smile -- and her right hand
is raised in a fist, giving the thumbs-up, as she usually did when a camera was
pointed at her.

"I kind of picked up the thumbs-up from the kids in Al Hillah," Harman said.
"Whenever I get into a photo, I never know what to do with my hands, so I
probably have a thumbs-up because it's just something that automatically
happens. Like when you get into a photo you want to smile." There are at least
twenty photos from Al Hillah in which she is in the identical pose, same smile,
same thumbs-up: bathing in an inflatable wading pool; holding a tiny lizard;
standing at the foot of a wall that bears a giant bas-relief of Saddam (the
button of his suit jacket is bigger than her head); fooling around with her best
Army buddy, Megan Ambuhl, who is giving her the finger and flashing a tongue
stud; holding a tiny figurine of Jesus; holding a long, phallic melon; mounting
the ancient stone lion of Babylon at the ruins of King Nebuchadnezzar's city;
leaning over the shoulder of an M.P. buddy who is holding a Fanta can on top of
which sits a dead cat's head; and so on.

The cat's head was one of Harman's gags. She had a kitten that was killed by a
dog, and since it had no visible wounds she performed a rough autopsy,
discovered organ damage, and then an M.P. buddy mummified its head. They gave it
pebbles for eyes, and Sabrina photographed it in various inventive settings: on
a bus seat with sunglasses, smoking a cigarette, wearing a tiny camouflage
boonie hat, floating on a little pillow in the wading pool, with flowers behind
its ears. She took more than ninety photographs and two videos of it. The
series, in its weird obsessiveness and dark comedy, has the quality of
conceptual art. At one time or another, at least fifteen of Harman's fellow-
M.P.s posed for photos with the cat head; several senior officers and a number
of Iraqi men and boys also took the time to have their pictures taken with it.
The cat head had become a fetish object, like Huckleberry Finn's dead cat, which
Tom Sawyer admires -- a scene that Norman Rockwell illustrated in a folksy print
captioned "Lemme see him, Huck. My, he's pretty stiff!"


Much of Harman's photo album from Al Hillah looks like a fantasy travel brochure
for post-Saddam Iraq: here she is, skin aglow, beaming, amid swarms of joyous
Iraqi children -- children clambering into her lap, throwing their arms around
her, mobbing her in the streets; here she is welcomed into local homes by
mustached men in dishdashas bearing tiny cups of tea; here she is visiting the
antiquities, with a Bedouin and his camel at the ziggurat of Borsippa, and with
fellow-soldiers at the Ishtar gate of Babylon; and here she is in camouflage,
with her arm around a pregnant woman swathed in black, her hand on the future-
full belly, the woman grinning. Harman bought her Iraqi friends clothes and food
and toys. She bought one family a refrigerator, and made sure it was stocked.
Sergeant Joyner said, "The Iraqi kids -- you couldn't go anywhere without them
saying, 'Sabrina, Sabrina.' They just loved themselves some Sabrina. She'll get
these kids balloons, toys, sodas, crackers, cookies, snacks, sweet rolls, Ho
Hos, Ding Dongs, Twinkies, she didn't care. She would do anything she could to
make them kids smile."

Still, the welcome in Al Hillah was brittle. The Americans had not brought what
they'd promised: a new order. The war wasn't over, Iraq had no government, the
liberators had become occupiers, and the occupation was slapdash, improvised,
and inadequate -- at best, a disappointment, and more often an insult. So, in
the fever heat, month after month of a hundred and ten and a hundred and twenty
degrees, alienation set in. Frustration gave way to hostility, hostility gave
way to violence, and by summer's end the violence against Americans was
increasingly organized. It was demoralizing. Every Iraqi might be the enemy.
What was the point of being there, unwanted? Nobody from the 372nd was killed in
Al Hillah, but on patrols there was shooting, in the night there were
explosions, and Sabrina had her nightmare. At least the picnic tables had seemed
to her fanciful, the random furniture of dreamscapes -- until she got to Abu
Ghraib, and there they were.

As the 372nd M.P.s arrived at Abu Ghraib, they learned that two Military
Intelligence officers had just been killed there in a mortar attack that had
left a dozen other soldiers badly wounded, and it didn't take long before the
M.P.s had their own but-for-this and but-for-that stories of near misses. "A few
nights after we got here ... we were sitting in a meeting and heard 3 thumps
then explosion," Harman wrote to Kelly. A firefight ensued. "Next day," she
wrote, "found out it was an IED (bomb planted in a Coke can wired to a clicker)
blew up a vehicle (no one hurt) then they chased down the 3 men that did it and
killed them."

It was said that Abu Ghraib was the most-attacked American base in Iraq at the
time. The prison made an obvious target for insurgents: immense and immobile and
poorly defended, an outpost of the military occupation in its most despised
aspect -- holding Iraqis captive. At first, the attacks came at nightfall,
around the time that the muezzins' call to prayer was broadcast from
loudspeakers atop nearby minarets. "When the mosque was playing, that was mortar
o'clock," Sabrina Harman said. "In Al Hillah it was kind of soothing and
relaxing, and when you get to Abu it was completely different. When they were
praying, that's when you knew you were going to get hit at Abu Ghraib."

With time, the attacks ceased to adhere to such a tight schedule. Mortars began
falling by day, and Harman said, "I was more afraid of walking outside or going
to take a shower. I pretty much didn't. I would use baby wipes. I kind of went
infantry for the time I was there, maybe shower once or twice a month if I had
to. The showers were outside. They were made of wood, and if a mortar hit, you
were going to die. If I could've peed inside, I probably would have." She said,
"You had to go to the showers and the bathroom with your flak vest on." At Abu
Ghraib, Javal Davis said, even sleep was no refuge. He hated the thought that he
could be killed without knowing it: "I always used to say, 'God, if I go out, if
I have to die, don't take me in my sleep. I want to feel it.' "

The soldiers had a drill to follow during an attack: run, grab your body armor,
run, crowd into a shelter, and wait. After a while, hardly anybody bothered. "If
you get hit, you get hit. There's really nothing you could do," Harman said. "If
they got lucky, they hit somebody." For the most part, the mortars fell on empty
ground: nobody was hurt, no property damaged. But the randomness and imprecision
of the persistent bombardments heightened the sense that no place was safe.

Of course, the prisoners in the tented camps couldn't move, and as mortars kept
falling on Abu Ghraib, prisoners kept getting killed and maimed. These
casualties were promptly recorded in Serious Incident Reports on the military
security networks. Then the dead were removed and their remains were sent to a
morgue, while the wounded were treated at the prison clinic or, if the damage
was severe, evacuated to a hospital before being returned to the camps. The
Americans running the prison knew that it was their duty to protect their
prisoners, and they knew that at Abu Ghraib that was impossible.


The 372nd M.P.s assumed they had been sent to Abu Ghraib because it was
dangerous. They were combat M.P.s, trained to support the operations of front-
line forces -- to conduct route reconnaissance, escort convoys, run patrols, go
on raids. They were abundantly armed and travelled with a fleet of heavy
vehicles. "We thought we were going to go kick some behind around the prison and
help them out," Sergeant Davis said. "But that's not what happened. Once we got
there, they told our guys, no, we're going to be prison guards."

The new assignment -- to run one of the overcrowded tented camps and the indoor
prison complex known, on account of its concrete-bunker-like solidity, as the
hard site -- bewildered the company. Combat units don't run prisons. That is the
province of another cadre of M.P.s, known as internment and resettlement M.P.s,
who are trained according to the Army's extensive doctrine on handling all
manner of wartime captives and displaced persons. The 372nd M.P.s had no such
specialized experience. A couple of them worked as corrections officers back
home, but that gave them no exposure to the Geneva Conventions, and the rest of
them didn't know the first thing about prison work. Their company commander,
Captain Donald Reese, was a window-blinds salesman in civilian life.

Although they did not know it at the time, the lack of experience and training
in handling prisoners in wartime made the soldiers of the 372nd ideally suited
to Abu Ghraib, where almost nothing was run according to military doctrine.
Since May, 2003, America's war in Iraq had been waged as a chapter in the war on
terror, and the military's long-standing rules for running prisons in wartime
had largely been ignored. By midsummer, the great majority of prisoners of war
who were seized during the invasion had been released. Those who remained in
captivity -- along with all new prisoners seized by the military -- were
designated "security detainees," a label that had gained currency in the war on
terror, to describe "unlawful combatants" and other prisoners who had been
denied P.O.W. status and could be held indefinitely, in isolation and secrecy,
without judicial recourse. The great majority of the prisoners held at Abu
Ghraib were designated security detainees, and placed under the authority of
Military Intelligence officers, who instructed the M.P.s on how to treat them.

Later, when the photographs of crimes committed against Iraqi prisoners at Abu
Ghraib were made public, the blame focussed overwhelmingly on the Military
Police officers who were assigned to guard duty in the Military Intelligence
cellblock -- Tiers 1A and 1B -- of the hard site. The low-ranking reservist
soldiers who took and appeared in the infamous images were singled out for
opprobrium and punishment; they were represented, in government reports, in the
press, and before courts-martial, as rogues who acted out of depravity. Yet the
abuse of prisoners at Abu Ghraib was de facto United States policy. The
authorization of torture and the decriminalization of cruel, inhuman, and
degrading treatment of captives in wartime have been among the defining legacies
of the current Administration; and the rules of interrogation that produced the
abuses documented on the M.I. block in the fall of 2003 were the direct
expression of the hostility toward international law and military doctrine that
was found in the White House, the Vice-President's office, and at the highest
levels of the Justice and Defense Departments.

The Abu Ghraib rules, promulgated by Lieutenant General Ricardo Sanchez, the
commander of ground forces in Iraq, elaborated on the interrogation rules for
Guantanamo Bay, which had been issued by Secretary of Defense Donald Rumsfeld;
they were designed to create far more license than restriction for interrogators
who sought to break prisoners. The M.P.s at Abu Ghraib were enlisted as
enforcers of such practices as sleep deprivation, sexual humiliation, sensory
disorientation, and the imposition of physical and psychological pain. They
never received a standard operating procedure to define what was required and
what was allowed, but were repeatedly instructed simply to follow the guidance
of Military Intelligence officers. An orthodox standard operating procedure
leaves nothing to the imagination, and as Megan Ambuhl settled into her job it
occurred to her that the absence of a code was the code at Abu Ghraib. "They
couldn't say that we broke the rules because there were no rules," she said. And
by taking pictures of the prisoners on the M.I. block the M.P.s demonstrated two
things: that they never fully accepted what was happening as normal, and that
they assumed they had nothing to hide.

By way of orientation, the soldiers of the 372nd who were assigned guard duty at
the hard site were given a tour of the place. They saw the ordinary cellblocks
for Iraqi criminals and the highly restricted M.I. block, where the most "high
value" security detainees were held, during and pending interrogation, in
single-occupancy cells. "That's when I saw the nakedness," Javal Davis said.
"I'm like, 'Hey, Sarge, why is everyone naked?' You know -- 'Hey, that's the
M.I. That's what the M.I. does. That's the M.I. thing. I don't know.' 'Why do
these guys have on women's panties?' Like -- 'It's to break them.' " Davis was
wide-eyed. "Guys handcuffed in stress positions, in cells, no lights, no
windows. Open the door, turn the light on -- 'Oh my God, Allah.' Click, turn the
light off, close the door. It's like, Whoa, what is that? What the hell is up
with all this stuff? Something's not right here."


A delegation of the International Committee of the Red Cross visited the M.I.
block of the hard site between October 9 and 12, 2003, and had much the same
reaction that Sergeant Davis had. The Geneva Conventions require that ICRC
delegates be given unrestricted access to military prisons, to monitor
conditions and interview prisoners in private. At Abu Ghraib, however, they
reported that there were "many obstacles" to their mission, "imposed,
apparently, at the behest of Military Intelligence," and what they were
permitted to see and hear did not please them: men held naked in bare, lightless
cells, paraded naked down the hallways, verbally and physically threatened, and
so forth. The Red Cross was not reassured when M.I. officers explained that
these abuses were part of the interrogation process; and the delegates were
indignant when they were told that they wouldn't be allowed to see some
prisoners. They broke off their visit, and came back two weeks later to complete
their inspection. Based on their two visits, the ICRC reported that the Military
Intelligence operation at Abu Ghraib was plagued by gross and systematic
violations of the Geneva Conventions -- physical abuses that left prisoners
rattled by psychological trauma: "incoherent speech, acute anxiety reactions ...
suicidal ideas."

On occasion, interrogators told the M.P.s to reward a prisoner -- give him a
better meal or a pack of cigarettes and let him smoke in his cell -- as an
incentive for cooperation in interrogation. But mostly what interrogators wanted
when they asked for "special treatment" was punishment: take away his mattress,
keep him awake, take away his clothes, or "P.T." him -- that is, put him through
a "physical training" regimen that might range from squat thrusts and low-
crawling naked over concrete to being slapped and knocked around while hooded
and made to stand on a cardboard box all night.

The M.P.s on the M.I. cellblock never learned the prisoners' names. Officially,
they referred to their wards by their five-digit prison numbers, but the
numbering system was confusing, and the numbers told you nothing about a person,
which made them hard to remember. So the soldiers gave the prisoners nicknames
based on their looks and their behavior. A prisoner who made a shank and tried
to stab someone was Shank, and a prisoner who got hold of a razor blade and cut
himself was called Slash. A prisoner who kept spraying himself and his cell with
water and was always asking for a broom was Mr. Clean. A prisoner who repeatedly
soaked his mattress with water was Swamp Thing.

There was a man they called Smiley, and a man they called Froggy, and a man they
called Piggy. There was a man with no fingers on one hand, only a thumb, who was
called Thumby -- not to be confused with the enormous man called the Claw or Dr.
Claw, because one of his hands was frozen in a half-clenched curl. The man they
called Santa Claus was also called Snowman. There was the man they called Taxi
Driver, because he'd been arrested while driving a cab, and there was a gaunt
man they called Gus, but nobody knew why that name had stuck, and he was also
sometimes called Mr. Burns, after the scrawny villain on "The Simpsons."

The nicknames made the prisoners both more familiar and more like cartoon
characters, which kept them comfortably unreal when it was time to mete out
punishment. Hydrue Joyner took credit for many of the nicknames. "It was jail,
but, you know, you can still laugh in jail," he said. Javal Davis, who had spent
six years in the Army, "expecting to learn a career field, get some benefits for
college, get a step ahead of my peers, get discipline, become a man," enjoyed
gallows humor as much as the next guy. The problem was that when you spend your
nights doing nasty things to people you've got to endure them yourself. Davis
had violence in him, and he found that making life miserable for men toward whom
he had no personal animus could work him into a mounting, generalized rage. But
aggression could get you only so far before the depression caught up with it.
There were many ways to torment a prisoner according to M.I.'s demands, and for
the most part there was nothing funny about them.

"Smells," Davis said. "Put them in a cell where the toilet is blocked -- backed
up. It smells like urine and crap. That would drive you nuts." And you could
keep shifting a prisoner's mealtimes, or simply withhold meals. The prisoners
ate the same MREs that the guards ate, but you could deny them the spoon and
all the fixings. "If you got Salisbury steak, they got the Salisbury steak, not
the rice that comes with it, not the hot sauce, not the snack, not the juice --
the Salisbury steak, and that's it," Davis said. "They were starving by the time
they'd get ready to get interrogated." At that point, he said, it would be:
"O.K., we'll give you more food if you talk."

And you could inflict pain. "You also had stress positions, and you escalated
the stress positions," Davis said. "Hand-cuffs behind their backs, high up, in
very uncomfortable positions, or chained down. Then you had the submersion. You
put the people in garbage cans, and you'd put ice in it, and water. Or stick
them underneath the shower spigot naked. They'd be freezing." It was a routine,
he said: "Open a window while it was, like, forty degrees outside and watch them
disappear into themselves ... before they go into shock."


Javal Davis had joined the Reserve in 1997, when he was in college. He was
impressed by the ROTC drill he saw: "saluting, about-face -- that looked kind of
sharp, the rank and file, the order and everything." He thought it was both an
honor and honorable to serve his country, and he was willing to die protecting
its freedom. "Especially after 9/11," he said. He was born and raised in
Roselle, New Jersey, across New York Harbor from the World Trade towers; he had
won trophies in state championships in the hundred-and-ten-metre high hurdle,
and he hoped one day to be a Roselle policeman or a New Jersey state trooper.
"And to see that happen on my own soil," he said. "It turned it up a notch."

But after four or five nights of running the M.I. block of the Abu Ghraib hard
site, Davis said, "I just wanted to go home." He felt that what he did and saw
there was wrong. "But it was reaffirmed and reassured through the leadership:
We're at war. This is Military Intelligence. This is what they do. And it's just
a job," he said. "So, over time, you become numb to it, and it's nothing. It
just became the norm. You see it -- that sucks. It sucks to be him. And that's
it. You move on."

Sabrina Harman also said she felt herself growing numb at Abu Ghraib, yet she
kept being startled by her capacity to feel fresh shocks. "In the beginning,"
she said, "you see somebody naked and you see underwear on their head and you're
like, 'Oh, that's pretty bad -- I can't believe I just saw that.' And then you
go to bed and you come back the next day and you see something worse. Well, it
seems like the day before wasn't so bad."

Harman was a runner on the night shift at the hard site, filling in where help
was needed. "I really don't remember the first day," she said. "I remember the
first day of working in Tier 1A and 1B. The first thing that I noticed was this
guy -- he had underwear on his head and he was handcuffed backwards to a window,
and they were pretty much asking him questions. And then there was another guy
who was fully dressed in another cell they were interrogating also, or I guess
they had already interrogated. That's the first time I started taking photos."
The prisoner with the underwear on his head was the one the M.P.s called Taxi
Driver. He was naked, and the position he was in -- his hands bound behind his
back and raised higher than his shoulders, forcing him to bend forward with his
head bowed and his weight suspended from his wrists -- is known as a
"Palestinian hanging," because it is said to be used in Israeli prisons. Later
that evening, Taxi Driver was moved to a bed, and Harman took another picture of
him there. Then she saw another prisoner, lying on his bed fully dressed, and
she photographed him, too.

As far as Harman knew at the time, nobody else had taken any pictures on Tier
1A, although later she saw one from a few days earlier of a naked man in the
corridor, handcuffed to the bars of a cell door. She wasn't surprised. By the
end of Harman's first night, three of the M.P.s had taken at least twenty-five
photographs, and over the ensuing months the M.P.s on the night shift took
hundreds more pictures on the M.I. block. The officer in charge of the block at
night, Corporal Charles Graner, said that he made a point of showing his
photographs to officers higher up the chain of command, and that nobody objected
to what they saw. On the contrary, after a month on the job, and after showing
scores of photographs of prisoners in torment to his superiors, Graner received
a written assessment from his captain, a frequent visitor to the block, who
said, "You are doing a fine job... . You have received many accolades from the
M.I. units here."

Most of the photographs from Harman's first night show solitary naked prisoners
in stress positions, cuffed to the bars of their cells or stretched and bent,
forward or backward, over a bunk bed, with their hands bound to the far railing.
Some of the prisoners are hooded with sandbags, some with underpants. One naked
man is lying face down on a concrete floor. Several photographs show a row of
prisoners in orange jumpsuits doing pushups in the hallway, and in one Staff
Sergeant Ivan (Chip) Frederick -- the night-shift officer in charge of the whole
hard site -- can be made out, in the background. Nobody in these photographs
appears to be aware of the camera, and the pictures have the quality of stolen
glimpses of men rendered into hellish statuary. Harman said that she began
photographing what she saw because she found it hard to believe. "If I come up
to you and I'm like, 'Hey this is going on,' you probably wouldn't believe me
unless I had something to show you," she said. "So if I say, 'Hey this is going
on. Look, I have proof,' you can't deny it, I guess." That was the impulse, she
said. "Just show what was going on, what was allowed to be done."


On the same night that she started shooting pictures at the hard site, Harman
wrote home:

KELLY,

The days are long here, 12 hour shifts. The prison has been quiet for the past
two nights. The night before that another IED went off. No one was killed but it
destroyed another Hmvv.

None of our unit has been in the mix of the mortars or IEDs. Not yet. Im afraid
to leave the prison to go south to use the phones, they plant those IEDs on the
roads and set them off as you pass. The sound is unforgettable... .

The prisoners we have range from theft to murder of a US soldier. Until Redcross
came we had prisoners the MI put in womens panties trying to get them to talk.
Pretty funny but they say it was "cruel." I don't think so. No physical harm was
done. We've even got Sadams sons body guard here... . Boy did he fail his job.
It sucks working with the prisoners because they all have something wrong. We
have people with rashes on their bodies and who-ever is in the cell with them
start to get it... .

I spoke too soon, its 3am, there's a firefight outside. Its never going to be
calm here! We have guys with TB! That sucks cause we can catch that. Some have
STDs. You name it. Its just dirty!

The food sucks. I live off cup o noodles, that's my meals. The meals they serve
are T-REX which is out of a box. If I do come home, boy am I going to eat!


The next night, Harman was back on duty with Charles Graner on the M.I.
cellblock, and she wrote again:

October 20, 03 -- 12:29am

Kelly,

The lights went out in the prison so here we were in the dark -- in the prison.
I have watch of the 18 and younger boys. I hear, misses! Misses! I go downstairs
and flash my light on this 16 year old sitting down with his sandal smacking
ants. Now these ants are Iraqi ants, LARGE! So large they could carry the family
dog away while giving you the finger! LARGE. And this poor boy is being attacked
by hundreds. All the ants in the prison came to this one boys cell and decided
to take over. All I could do was spray Lysol. The ants laughed at me and kept
going. So here we were the boy on one side of the cell and me on the other in
the dark with one small flashlight beating ants with our shoes... . Poor kids.
Those ants even Im scared of.

So that was the start of my shift. They've been stripping "the fucked up"
prisoners and handcuffing them to the bars. Its pretty sad. I get to laugh at
them and throw corn at them. I kind of feel bad for these guys even if they are
accused of killing US soldiers. We degrade them but we don't hit and thats a
plus even though Im sure they wish we'd kill them. They sleep one hour then we
yell and wake them -- make them stay up for one hour, then sleep one hour --
then up etc. This goes on for 72 hours while we fuck with them. Most have been
so scared they piss on themselves. Its sad. It's a little worst than Basic
training ie: being naked and handcuffed... .

But pictures were taken, you have to see them! A sandbag was put over their
heads while it was soaked in hot sauce. Okay, that's bad but these guys have
info, we are trying to get them to talk, that's all, we don't do this to all
prisoners, just the few we have which is about 30-40 not many.
The othernight at 3, when I wrote you, the firefight ... 3 killed 6 injured --
Iraqis... .

Its time to wake them again!!!


And later that same day, on her next night shift, Harman wrote:

Oct 20, 03
10:40pm

Kelly,

Okay, I don't like that anymore. At first it was funny but these people are
going too far. I ended your letter last night because it was time to wake the MI
prisoners and "mess with them" but it went too far even I can't handle whats
going on. I cant get it out of my head. I walk down stairs after blowing the
whistle and beating on the cells with an asp to find "the taxicab driver"
handcuffed backwards to his window naked with his underwear over his head and
face. He looked like Jesus Christ. At first I had to laugh so I went on and
grabbed the camera and took a picture. One of the guys took my asp and started
"poking" at his dick. Again I thought, okay that's funny then it hit me, that's
a form of molestation. You can't do that. I took more pictures now to "record"
what is going on. They started talking to this man and at first he was talking
"I'm just a taxicab driver, I did nothing." He claims he'd never try to hurt US
soldiers that he picked up the wrong people. Then he stopped talking. They
turned the lights out and slammed the door and left him there while they went
down to cell #4. This man had been so fucked that when they grabbed his foot
through the cell bars he began screaming and crying. After praying to Allah he
moans a constant short Ah, Ah every few seconds for the rest of the night. I
don't know what they did to this guy. The first one remained handcuffed for
maybe 1½-2 hours until he started yelling for Allah. So they went back in and
handcuffed him to the top bunk on either side of the bed while he stood on the
side. He was there for a little over an hour when he started yelling again for
Allah. Not many people know this shit goes on. The only reason I want to be
there is to get the pictures and prove that the US is not what they think. But I
don't know if I can take it mentally. What if that was me in their shoes. These
people will be our future terrorist. Kelly, its awful and you know how fucked I
am in the head. Both sides of me think its wrong. I thought I could handle
anything. I was wrong.

Sabrina


Nobody called Sabrina Harman Mother Teresa at the Abu Ghraib hard site. But even
on the Military Intelligence block she retained her reputation as the blithe
spirit of the unit, obviously not a leader and yet never a true follower, either
-- more like a tagalong, the soldier who should never have been a soldier. In
her letters from those first nights, as she described her reactions to the
prisoners' degradation and her part in it -- ricocheting from childish mockery
to casual swagger to sympathy to cruelty to titillation to self-justification to
self-doubt to outrage to identification to despair -- she managed to subtract
herself from the scenes she sketched. By the end of her outpourings, she had
repositioned herself as an outsider at Abu Ghraib, an observer and recorder,
shaking her head, and in this way she preserved a sense of her own innocence.

Harman said that she had imagined herself producing an expose -- to "prove that
the US is not what they think," as she wrote to Kelly. The idea was abstract,
and she had only a vague notion of how to see it through or what its
consequences might be. She said she intended to give the photographs to the
press after she got home and out of the Army. But she did not pretend to be a
whistle-blower-in-waiting; rather, she wished to unburden herself of complicity
in conduct that she considered wrong, without ascribing blame or making trouble
for anyone in particular. At the outset, when she photographed what was being
done to prisoners, she did not include other soldiers in the pictures. In these
images, the soldiers, or the order they serve, are the unseen hand in the
prisoners' ordeal. As with crime-scene photographs, which show only victims, we
are left to wonder: Who done it?

"I was trying to expose what was being allowed" -- that phrase again -- "what
the military was allowing to happen to other people," Harman said. In other
words, she wanted to expose a policy; and by assuming the role of a
documentarian she had found a way to ride out her time at Abu Ghraib without
having to regard herself as an instrument of that policy. But it was not merely
her choice to be a witness to the dirty work on Tier 1A: it was her role. As a
woman, she was not expected to wrestle prisoners into stress positions or
otherwise overpower them but, rather, just by her presence, to amplify their
sense of powerlessness. She was there as an instrument of humiliation. The M.P.s
knew very little about their Iraqi prisoners or the culture they came from, but
at Fort Lee, before being deployed, they were given a session of "cultural
awareness" training, from which they'd taken away the understanding --
constantly reinforced by M.I. handlers -- that Arab men were sexual prudes, with
a particular hangup about being seen naked in public, especially by women. What
better way to break an Arab, then, than to strip him, tie him up, and have a
woman laugh at him? Taking pictures may have seemed an added dash of
mortification, but to Harman it was a way of deflecting her own humiliation in
the transaction, by acting as a spectator.

Her letters to Kelly functioned in the same way. "Maybe writing home was a
release, to help me forget about what was happening," she said. Then, moments
later, she said, "I put everything down on paper that I was thinking. And if it
weren't for those letters, I don't think I could even tell you anything that
went on. That's the only way I can remember things, is letters and photos." The
remarks sound contradictory, but Harman seemed to conceive of memory as an
external storage device. By downloading her impressions to a document, she could
clear them from her mind and transform reality into an artifact. After all, she
said, that was how she experienced the things she did and saw done to prisoners
on Tier 1A: "It seems like stuff like this only happened on TV. It's not
something you really thought was going on. At least I didn't think it was going
on. It's just something that you watch and that is not real."


Real or unreal, participant or bystander, degrader or degraded, overstimulated
or numbed out -- Harman may have meant no harm but she seemed to understand that
in the malignant circumstances of the M.I. block she could not be entirely
harmless. Unable or unwilling to reconcile her most disturbing and her most
appealing actions and reactions, she equivocated. When she wrote of "both sides
of me," she said, "It was military and civilian -- the tough side and the non-
tough side. You battle out which one is more stronger, I guess... . You're
trained to be tough. I was right out of basic, and you're just trained to do
what you're told, and to not let things affect you. You're supposed to set all
emotions aside, because this is war. I think it's almost impossible. It is
emotional."

Megan Ambuhl, who was Harman's roommate at Abu Ghraib, regarded her as a little
sister, in need of protection. "She is just so naive, but awesome," she said. "A
good person, but not always aware of the situation." Harman called Ambuhl
"Mommy," and accepted the verdict of naivete with equal measures of solace and
regret. Harman wanted to be tough and she wanted to be nice, and she said, "I
shouldn't have been there. I mean obviously I didn't do what I was supposed to.
I couldn't hit somebody. I can't stomach that ever. I don't like to watch people
get hit. I get sick. I know it's kind of weird that I can see a dead person, but
I don't like actual violence. I didn't like taking away their blankets when it
was really cold. Because if I'm freezing and I'm wearing a jacket and a hat and
gloves, and these people don't have anything on and no blanket, no mattress,
that's kind of hard to see and do to somebody -- even if they are a terrorist."
In fact, she said, "I really didn't see them as prisoners there. I just saw them
as people that were pretty much in the same situation I was, just trapped in Abu
Ghraib." And she said, "I told them that we were prisoners also. So we felt how
they were feeling."

It was easier to be nice to the women and children on Tier 1B, but, Harman said,
"It was kind of sad that they even had to be there." The youngest prisoner on
the tier was just ten years old -- "a little kid," she said. "He could have fit
through the bars, he was so little." Like a number of the other kids and of the
women there, he was being held as a pawn in the military's effort to capture or
break his father.

Harman enjoyed spending time with the kids. She let them out to run around the
tier in a pack, kicking a soccer ball, and she enlisted them to help sweep the
tier and distribute meals -- special privileges, reserved only for the most
favored prisoners on the M.I. block. "They were fun," she said. "They made the
time go by faster." She didn't like seeing children in prison "for no reason,
just because of who your father was," but she didn't dwell on that. What was the
point? "You can't feel because you'll just go crazy, so you just kind of blow it
off," Harman said. "You can only make their stay a little bit acceptable, I
guess. You give them all the candy from the MREs to make their time go by
better. But there's only so much you can do or so much you can feel."

On Tier 1A, Harman liked to sneak cigarettes and doses of Tylenol or ibuprofen
to prisoners who were being given a hard time. These small gestures gave her
comfort, too, and it pleased her that prisoners sometimes turned to her for
help. But Harman was generally as forgiving of her buddies as she was of
herself. When toughness failed her, and niceness was not an option, Harman took
refuge in denial. "That's the only way to get through each day, is to start
blocking things out," she said. "Just forget what happened. You go to bed, and
then you have the next day to worry about. It's another day closer to home. Then
that day's over, and you just block that one out." At the same time, she faulted
herself for not being a more enthusiastic soldier when prisoners on Tier 1A were
being given the business. When she was asked how other M.P.s could go at it
without apparent inhibition, all she could say was "They're more patriotic."


One night in the first week of November, 2003, an agent of the Army's Criminal
Investigative Division -- an agency sometimes described as the military's FBI --
came to the M.I. block to interrogate a new prisoner, an Iraqi suspected of
involvement in the deaths of American soldiers. The story, as the M.P.s
understood it, was that the prisoner kept giving a false name and insisting that
he was not who the CID said he was. He was given the nickname Gilligan and
subjected to the standard treatment: the yelling, the P.T., the sleep
deprivation. Graner, who took charge of Gilligan's harassment, gave him a
cardboard box -- an MRE carton -- which he was ordered to carry around or to
stand on for long stretches. Gilligan was hooded, and normally he would have
been naked, too, but, because of the cold, Graner had cut a hole in a prison
blanket and draped it over him like a poncho. Staff Sergeant Chip Frederick
later told Army investigators that he asked the CID man -- whom he identified as
Agent Romero -- about Gilligan, and that Romero said, "I don't give a fuck what
you do to him, just don't kill them."

Frederick said that he took Romero's words "like an order, but not a specific
order," and he explained, "To me, Agent Romero was like an authority figure, and
when he said he needed the detainee stressed out I wanted to make sure the
detainee was stressed out." Frederick found Gilligan where Graner had left him,
perched on his box in the shower room of Tier 1A. "There were a lot of detainees
that were forced to stand on boxes," he said. Behind Gilligan, he noticed some
loose electrical wires hanging from the wall. "I grabbed them and touched them
together to make sure they weren't live wires," he said. "When I did that and
got nothing, I tied a loop knot on the end, put it on, I believe, his index
finger, and left it there." Frederick said that somebody then tied a wire to
Gilligan's other hand and Harman said, "I told him not to fall off, that he
would be electrocuted if he did."

Harman had been busy for much of the night, keeping awake the prisoner they
called the Claw, and attending to another one they called Shitboy, a maniac on
Tier 1B who had the habit of smearing himself with his feces and hurling it at
passing guards. She was taking a break when she joined the others in the shower
room, and although Gilligan understood English, she wasn't sure if he believed
her threat. Besides, the whole mock-electrocution business had not lasted more
than ten or fifteen minutes -- just long enough for a photo session. "I knew he
wouldn't be electrocuted," she said. "So it really didn't bother me. I mean, it
was just words. There was really no action in it. It would have been meaner if
there really was electricity coming out, and he really could be electrocuted. No
physical harm was ever done to him." In fact, she said, "He was laughing at us
towards the end of the night, maybe because he knew we couldn't break him."

Once the wires were attached to Gilligan, Frederick had stepped back, instructed
Gilligan to hold his arms out straight from his sides, like wings, and taken a
picture. Then he took another, identical to the first: the hooded man, in his
blanket poncho, barefoot atop his box, arms outstretched, wires trailing from
his fingers. Snap, snap -- two seconds -- and three minutes later Harman took a
similar shot, but from a few steps back, so that Frederick appears in the
foreground at the edge of the frame, studying on the display screen of his
camera the picture he's just taken.

These were not the first photographs taken on the block that night, or the last.
That afternoon, when the night shift M.P.s reported for duty at the hard site,
their platoon commander had called them to a meeting. "He said there was a
prisoner who had died in the shower, and he died of a heart attack," Harman
said. The body had been left in the shower on Tier 1B, packed in ice, and
shortly after the session with Gilligan somebody noticed water trickling out
from under the shower door.

As Harman entered the shower room, she snapped a picture of a black rubber body
bag lying along the far wall. Then she and Graner, their hands sheathed in
turquoise latex surgical gloves, unzipped the bag. "We just checked him out and
took photos of him -- kind of realized right away that there was no way he died
of a heart attack because of all the cuts and blood coming out of his nose," she
said, and she added, "You don't think your commander's going to lie to you about
something. It made my trust go down, that's for sure. Well, you can't trust your
commander now."

Translucent plastic ice bags covered the dead prisoner from the neck down, but
his battered, bandaged face was exposed -- mouth agape as if in mid-speech.
Harman, the aspiring forensic photographer, shot him from a variety of angles,
zooming in and out, while Charles Graner swabbed the floor. When he was done, he
took a photograph of Harman posing with the corpse, bending low into the frame,
flashing her Kodak smile, and giving the thumbs-up with one gloved hand; and she
used his camera to take a similar shot of him. After about seven minutes in the
shower room, she zipped the body bag shut, and they left.


"I guess we weren't really thinking, Hey, this guy has family, or, Hey, this guy
was just murdered," Harman said. "It was just -- Hey, it's a dead guy, it'd be
cool to get a photo next to a dead person. I know it looks bad. I mean, even
when I look at them, I go, 'Oh Jesus, that does look pretty bad.' But when we
were in that situation it wasn't as bad as it looks coming out on the media, I
guess, because people have photos of all kinds of things. Like, if a soldier
sees somebody dead, normally they'll take photos of it."

Harman might more accurately have said that it's not unusual to take such
pictures. Soldiers have always swapped crazy war stories -- whether to boast or
confess, to moralize or titillate -- and the uncritical response of other
soldiers at Abu Ghraib to the photographs from the night shift on the M.I. block
suggests that they were seen as belonging to this comradely tradition. Javal
Davis took no photographs there and he appeared in none, but he said, "Everyone
in theatre had a digital camera. Everyone was taking pictures of everything,
from detainees to death." He said, "That was nothing, like in Vietnam where guys
were taking pictures of the dead guy with a cigarette in his mouth. Like, Hey,
Mom, look. It sounds sick, but over there that was commonplace, it was nothing.
I mean, when you're surrounded by death and carnage and violence twenty-four
hours a day, seven days a week, it absorbs you. You walk down the street and you
see a dead body on the road, whereas a couple months ago, you would have been
like, 'Oh, my God, a dead body,' today you're like, 'Damn, he got messed up,
let's go get something to eat.' You could watch someone running down the street
burning on fire, as long as it's not an American soldier, it's 'Somebody needs
to go put that guy out.' "

The pictures of Harman and Graner with the corpse may have been taken as a gag
-- "for personal use," as Frederick said of his photos of Gilligan -- but they
are starkly at odds with Harman's claim of a larger documentary purpose. By
contrast, her grisly, intimate portraits of the corpse convey her shock at
discovering its wreckage; and later that evening Harman returned to the shower
with Frederick to examine the body more carefully. This time, she looked beneath
the ice bags and peeled back the bandages, and she stayed out of the pictures.

"I just started taking photos of everything I saw that was wrong, every little
bruise and cut," Harman said. "His knees were bruised, his thighs were bruised
by his genitals. He had restraint marks on his wrists. You had to look close. I
mean, they did a really good job cleaning him up." She said, "The gauze on his
eye was put there after he died to make it look like he had medical treatment,
because he didn't when he came into the prison." She said, "There were so many
things around the bandage, like the blood coming out of his nose and his ears.
And his tooth was chipped -- I didn't know if that happened there or before --
his lip was split open, and it looked like somebody had either butt-stocked him
or really got him good or hit him against the wall. It was a pretty good-sized
gash. I took a photo of that as well." She said, "I just wanted to document
everything I saw. That was the reason I took photos." She said, "It was to prove
to pretty much anybody who looked at this guy, Hey, I was just lied to. This guy
did not die of a heart attack. Look at all these other existing injuries that
they tried to cover up."

The next morning, after nearly thirty hours in the shower, the corpse was
removed from the tier disguised as a sick prisoner: draped with a blanket, taped
to an I.V., and rolled away on a gurney. Hydrue Joyner was reminded of the
Hollywood farce "Weekend at Bernie's," in which two corporate climbers treat
their murdered boss as a puppet, pretending he's alive to avoid suspicion in his
death. "I was thinking to myself, Un-freaking-believable. But this came from on
high," Joyner said of the charade with the I.V. "I took it as they didn't want
any of the prisoners thinking we were in there killing folks." Joyner referred
to the dead man as Bernie, but Army investigators soon identified him as a
suspected insurgent named Manadel al-Jamadi. He was alleged to have provided
explosives for the bombing that blew up the Red Cross headquarters in Baghdad a
week before his arrest, and he had died while under interrogation by a CIA
agent. Within the week that followed, an autopsy concluded that Jamadi had
succumbed to "blunt force injuries" and "compromised respiration"; and his death
was classified as a homicide.

Jamadi's CIA interrogator has never been charged with a crime. But Sabrina
Harman was. As a result of the pictures she took and appeared in at Abu Ghraib,
she was convicted by court-martial, in May of 2005, of conspiracy to maltreat
prisoners, dereliction of duty, and maltreatment, and sentenced to six months in
prison, a reduction in rank, and a bad-conduct discharge. Megan Ambuhl, Javal
Davis, Chip Frederick, Charles Graner, and Jeremy Sivits were among the handful
of other soldiers who, on account of the photographs, were also sentenced to
punishments ranging from a reduction in rank and a loss of pay to ten years in
prison. The only person ranked above staff sergeant to face a court-martial was
cleared of criminal wrongdoing. No one has ever been charged for abuses at the
prison that were not photographed. Originally, Harman's charges included several
counts pertaining to her pictures of Jamadi, but these were never brought to
trial. The pictures constituted the first public evidence that the man had been
killed during an interrogation at Abu Ghraib, and Harman said, "They tried to
charge me with destruction of government property, which I don't understand. And
then maltreatment for taking the photos of a dead guy. But he's dead. I don't
know how that's maltreatment. And then altering evidence for removing the
bandage from his eye to take a photo of it and then I placed it back. When he
died, they cleaned him all up and then stuck the bandages on. So it's not really
altering evidence. They had already done that for me. But in order to make the
charges stick they were going to have to bring in the photos, which they didn't
want, because obviously they covered up a murder and that would just make them
look bad. So they dropped all the charges pertaining to the guy in the shower."


As for Gilligan, the Criminal Investigation Department determined that he was
not, after all, who he had been suspected of being during his ordeal. "So all of
that, and the poor guy was innocent," Harman said. He remained on Tier 1A and
soon became one of the M.P.s' favorite prisoners. Gilligan was given the
privileged status of a block worker, and was regularly let out of his cell to
help with the cleaning. Megan Ambuhl called him "pretty decent," and said she
had a picture of him sharing a meal and a smoke with Charles Graner. Sabrina
Harman said, "He was just a funny, funny guy. If you're going to take someone
home, I definitely would have taken him."

Under the circumstances, Harman was baffled that the figure of Gilligan --
hooded, caped, and wired on his box -- had eventually become the icon of Abu
Ghraib and possibly the most recognized emblem of the war on terror after the
World Trade towers. The image had proliferated around the globe in uncountable
reproductions and representations -- in the press, but also on murals and
placards, T-shirts and billboards, on mosque walls and in art galleries. Harman
had even acquired a Gilligan tattoo on one arm, but she considered that a
private souvenir. It was the public's fascination with the photograph of
Gilligan -- of all the images from Abu Ghraib -- that she couldn't fathom.
"There's so many worse photos out there. I mean, nothing negative happened to
him, really," she said. "I think they thought he was being tortured, which he
wasn't."

Harman was right: there were worse pictures than Gilligan. But, leaving aside
that photographs of death and nudity, however newsworthy, don't get much play in
the press, the power of an image does not necessarily lie in what it depicts. A
photograph of a mangled cadaver, or of a naked man trussed in torment, can shock
and outrage, provoke protest and investigation, but it leaves little to the
imagination. It may be rich in practical information, while being devoid of any
broader meaning. To the extent that it represents any circumstances or
conditions beyond itself, it does so generically. Such photographs are
repellent, in large part because they have a terrible, reductive sameness.
Except from a forensic point of view, they are unambiguous, and have the quality
of pornography. They are what they show, nothing more. They communicate no
vision and, shorn of context, they offer little, if anything, to think about, no
occasion for wonder. They have no value as symbols.

Of course, the dominant symbol of Western civilization is the figure of a nearly
naked man, tortured to death -- or, more simply, the torture implement itself,
the cross. But our pictures of the savage death of Jesus are the product of
religious imagination and idealization. In reality, he must have been ghastly to
behold. Had there been cameras at Calvary, would twenty centuries of believers
have been moved to hang photographs of the scene on their altarpieces and in
their homes?

The image of Gilligan achieves its power from the fact that it does not show the
human form laid bare and reduced to raw matter but creates instead an original
image of inhumanity that admits no immediately self-evident reading. Its
fascination resides, in large part, in its mystery and inscrutability -- in all
that is concealed by all that it reveals. It is an image of carnival weirdness:
this upright body shrouded from head to foot; those wires; that pose; and the
peaked hood that carries so many vague and ghoulish associations. The pose is
obviously contrived and theatrical, a deliberate invention that appears to
belong to some dark ritual, a primal scene of martyrdom. The picture transfixes
us because it looks like the truth, but, looking at it, we can only imagine what
that truth is: torture, execution, a scene staged for the camera? So we seize on
the figure of Gilligan as a symbol that stands for all that we know was wrong at
Abu Ghraib and all that we cannot -- or do not want to -- understand about how
it came to this.

*


Washington Post --

March 20, 2008

CHENEY EX-AIDE 'SCOOTER' LIBBY DISBARRED

by Carol D. Leonnig

http://www.washingtonpost.com/wp-dyn/content/
article/2008/03/20/AR2008032001757.html

Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby, was
disbarred today by a District of Columbia court that ruled that his convictions
last year for perjury and obstructing justice in a White House leak
investigation disqualify him from practicing law.

Under the ruling by the D.C. Court of Appeals, Libby will lose his license to
practice or appear in court in Washington until at least 2012. As is standard
custom, he also would lose any bar membership he might hold in any other states.

Libby was convicted of lying to the FBI and federal investigators about whether
he discussed the identity of covert CIA officer Valerie Plame with reporters in
the spring and summer of 2003. At the time, according to evidence presented at
trial, Cheney had instructed Libby to talk to reporters to rebut claims made by
Plame's husband that the administration had twisted intelligence to justify
going to war with Iraq.

A three-member panel of the Court of Appeals decided that the D.C. Code gave it
no choice on the decision. Libby has not disputed the D.C. Bar Counsel's
recommendation that he be disbarred.

"When a member of the Bar is convicted of an offense involving moral turpitude,
disbarment is mandatory," the judges wrote. "This court has held that
obstruction of justice and perjury are crimes of moral turpitude per se."

Libby's disbarment is effective as of June 12, 2007, when he first filed a
declaration saying he would voluntarily comply with the court's rules on
professional ethics for lawyers. Libby, 57, could seek reinstatement to the bar
five years from that date, in June 2012.

Last July, a federal judge sentenced Libby to 30 months in jail. President Bush
commuted the sentence, calling it "excessive."

*


Los Angeles Times --

March 14, 2008

PENTAGON ACCUSED OF DOCTORING GUANTANAMO TRIBUNAL EVIDENCE

A defense lawyer for an accused Canadian says the account of an attack was
altered to support a 'myth' that his client was its sole survivor.

by Carol J. Williams

http://www.latimes.com/news/printedition/asection/
la-na-gitmo14mar14,1,1852577.story

GUANTANAMO BAY, CUBA -- The Navy defense lawyer for a Canadian prisoner accused
of killing a U.S. soldier in Afghanistan six years ago accused the Pentagon on
Thursday of doctoring evidence to make his client appear guilty.

In pretrial motions in the case of Omar Khadr, who was 15 when he was wounded
and arrested by U.S. forces, Lt. Cmdr. William C. Kuebler said the Army
commander for the Khost region of eastern Afghanistan reported on July 28, 2002,
that the person who threw a grenade that killed Sgt. 1st Class Christopher J.
Speer also died in the firefight.

Two months after that report, the commander altered his account to say Speer's
attacker was "engaged" by U.S. forces, Kuebler said. The officer was identified
only as Lt. Col. W.

The government has listed the commander as a potential prosecution witness in
Khadr's trial. Kuebler had sought to interview the lieutenant colonel but was
denied access by the prosecution. At Thursday's hearing, he appealed to the Army
judge handling Khadr's case, Col. Peter Brownback III, to make Lt. Col. W
available to explain the change.

Kuebler also sought access to Khadr's medical and interrogation records from the
weeks he spent in U.S. military custody at Bagram Air Base north of Kabul before
his transfer here. He asked for videotapes of Khadr at Bagram undergoing
"enhanced interrogation" while recovering from two gunshot wounds to the back.

Brownback promised to rule before departing Guantanamo today, but his decisions
on motions argued here this week are unlikely to be made public immediately as
censors in Washington vet them first for classified information.

Kuebler told journalists that the altered firefight report was "consistent with
the proposition that the government manufactured evidence that made Omar look
guilty."

He also said Khadr had been mistreated by a U.S. military interrogator at
Bagram, a soldier identified as Sgt. C who was court-martialed and disciplined
after the death of another prisoner there.

Asked if the government had revised documents to back the accusations against
Khadr, the tribunal's deputy chief prosecutor, Army Col. Bruce Pagel, replied:
"No." He declined to respond further.

Government reports have contended that Khadr was the only enemy combatant to
survive the July 27, 2002, clash in which Speer was wounded. Speer died eight
days later.

Revising the combat report supports "the myth that has grown up around this case
that Omar was the only person alive at the compound" when the Special Forces
unit entered after a massive bombardment, Kuebler said.

Brig. Gen. Thomas Hartmann, legal advisor to the convening authority who serves
an attorney general-like role for the war-crimes tribunal, confirmed Thursday
that the Pentagon was "increasing the progression of cases" and would continue
to accelerate the process in coming months.

He disputed contentions by the chief defense counsel, Army Col. Steve David,
that only nine military lawyers are available to defend 14 charged suspects,
versus 31 attorneys for the prosecution. The defense has 10 uniformed lawyers
now, four civilians who can act as co-counsel and eight more on the way,
Hartmann said.

The prosecution has more staff, the general said, because its burden is greater
than that of the defense in having to prove the guilt of each accused beyond a
reasonable doubt.

The administration's hopes of speeding up the trials were probably dashed by the
sessions this week, which raised more legal questions and issues.

A 33-year-old Saudi, Ahmed Mohammed Ahmed Haza Al-Darbi, was arraigned after
Khadr's hearing but declined to enter a plea or decide whether to accept his
military defense lawyer. He is charged with aiding Al Qaeda and plotting to
attack ships in the Strait of Hormuz.

Al-Darbi, a brother-in-law to one of the alleged Sept. 11 hijackers, was
arrested in Azerbaijan, sent to a third country for brutal interrogation and
subjected to abuse by U.S. soldiers once transferred to Bagram months later, his
attorney said.

While Al-Darbi was polite and responsive, by putting off his plea he remains at
the same impasse as all four defendants who have been brought before the
commission so far for arraignment.

It has been more than six years since the first of nearly 800 terrorism suspects
arrived at Guantanamo. All but 275 have been released or repatriated, and of
those, 14 have been charged with war crimes.

Also Thursday, the American Civil Liberties Union filed suit against the U.S.
government demanding disclosure of Guantanamo prisoners' descriptions of
waterboarding and other coercion at the hands of CIA interrogators.

Detailed accounts of alleged mistreatment of Khalid Shaikh Mohammed and 13 other
"high-value" prisoners now being held here were deleted from transcripts made
public after each suspect was questioned during a Combatant Status Review
Tribunal last year.

"As the Guantanamo era enters its seventh shameful year, the government still
refuses to level with the American people. Its stonewalling is illegal and
obstructs the public's right to know the truth about torture and abuse conducted
in our name," said Ben Wizner, an ACLU staff attorney monitoring the
proceedings.

*


New York Times --

March 13, 2008

PENTAGON CITES TAPES SHOWING INTERROGATIONS

by Mark Mazzetti and Scott Shane

http://www.nytimes.com/2008/03/13/washington/13intel.html

WASHINGTON -- The Defense Department is conducting an extensive review of the
videotaping of interrogations at military facilities from Iraq to Guantanamo
Bay, and so far it has identified nearly 50 tapes, including one that showed
what a military spokesman described as the forcible gagging of a terrorism
suspect.

The Pentagon review was begun in late January after the Central Intelligence
Agency acknowledged that it had destroyed its own videotapes of harsh
interrogations conducted by CIA officers, an action that is now the subject of
criminal and Congressional investigations.

The review was intended in part to establish clearer rules for any videotaping
of interrogations, Defense officials said. But they acknowledged that it had
been complicated by inconsistent taping practices in the past, as well as
uncertain policies for when tapes could be destroyed or must be preserved.

The officials said it appeared that only a small fraction of the tens of
thousands of interrogations worldwide since 2001 had been recorded.

The officials said the nearly 50 tapes they identified documented interrogations
of two terrorism suspects, Jose Padilla and Ali al-Marri, and were made at a
Navy detention site in Charleston, S.C., where the two men have been held.

The initial findings of the Pentagon review represent the first official
acknowledgment that military interrogators had videotaped some sessions with
detainees and could widen the controversy over the treatment of prisoners in
American custody. A Pentagon spokesman, Geoff Morrell, cautioned that the review
was incomplete, and a spokesman for the Defense Intelligence Agency, Don Black,
said that interrogation videotapes had been routinely destroyed if they were
judged to have no continuing value.

The only tape described by officials is of Mr. Marri, a citizen of Qatar who was
arrested in December 2001 while in college in Illinois and moved five years ago
to the jail after being designated an "enemy combatant." Government officials
say they believe he was an operative for Al Qaeda who was plotting attacks.

Two government officials said that the tape showed Mr. Marri being manhandled by
his interrogators, but did not show waterboarding or any other treatment
approaching what they believed could be classified as torture. According to one
Defense Department official, the interrogators dispensing the rough treatment on
the tape were FBI agents.

An FBI spokesman declined to comment, citing a continuing review of detention
practices that is being carried out by the Department of Justice's inspector
general.

Mr. Black, the spokesman for the Defense Intelligence Agency, said its director,
Lt. Gen. Michael D. Maples, had reviewed the tape and was satisfied that Mr.
Marri's treatment was acceptable.

He said that Mr. Marri was chanting loudly, disrupting his interrogation, and
that interrogators used force to put duct tape on his mouth, while Mr. Marri
resisted. Mr. Black said most of the videos showing Mr. Marri's interrogations
had been destroyed. The government has never charged Mr. Marri, but because of
his designation as an enemy combatant, the Pentagon is allowed to hold him
indefinitely.

The scale of detention and interrogation by the military, with tens of thousands
of prisoners in Iraq, Afghanistan and at Guantanamo Bay, Cuba, dwarfs that of
the CIA, which has held fewer than 100 high-level Qaeda suspects. The CIA has
acknowledged videotaping only two terrorism suspects, in 2002, and military
officials said that the review, ordered in late January by James R. Clapper, the
Pentagon's senior intelligence official, had similarly found that only a small
number of detainee interrogations had been videotaped.

"This is not a widespread practice," said Mr. Morrell, the Pentagon press
secretary. He said that it was up to individual military commanders whether to
tape interrogations and that the videotapes were often used as the basis of
written intelligence reports. In addition to the existing interrogation
videotapes, there are existing recordings that show interactions between
military guards and terrorism suspects, including detainees' forcible removal
from cells at Guantanamo, military officials said.

Images of rough treatment of detainees is a delicate subject for the Pentagon.
Soldiers' snapshots of the abusive treatment of detainees at the Abu Ghraib
prison in Iraq set off a firestorm and led to prison terms for a number of
military personnel.

Congress imposed a ban in 2005 on all harsh interrogation methods by the
military but left a loophole for the CIA Last month, Congress voted to extend
the ban to the CIA, but President Bush vetoed the bill.

The CIA acknowledged in December that in 2005 it had destroyed the only
interrogation videotapes that its officers had made; the tapes showed two
detainees, Abu Zubaydah and Abd al- Rahim al-Nashiri.

Lawyers for Mr. Marri, who have challenged his imprisonment in court, sought
access to any tapes or other records of his interrogations, but in 2006 a
federal judge in South Carolina said the government did not have to produce any
tapes. That decision is being appealed.

Jonathan Hafetz, one of the lawyers, said Mr. Marri had heard guards describe "a
cabinet full of tapes" showing his interrogations, but had never had independent
confirmation that such tapes existed. Mr. Marri has alleged that earlier in his
imprisonment he was deprived of sleep, isolated and exposed to prolonged cold.

Mr. Hafetz said he planned to file papers in court on Thursday describing the
psychological harm done to Mr. Marri. "Locking someone up for five years without
charges is a disgrace and a betrayal of American and constitutional values," he
said.

The difficulties in the Pentagon's review can be glimpsed in a seven-page court
filing last month by Rear Adm. Mark H. Buzby, the military commander at
Guantanamo Bay.

Admiral Buzby's report describes an array of digital video recorders used to
capture "activities" -- it does not specify whether interrogations are included
-- in at least four subcamps at Guantanamo. But the systems automatically
recorded over older material when they reached capacity, he wrote.

In some cases, Admiral Buzby wrote, "We suspect that the recording devices
contain recorded data but we are unable technologically to confirm whether data
remains."

*


New York Times Magazine --

March 9, 2008

On Language

WATERBOARDING

by William Safire

http://www.nytimes.com/2008/03/09/magazine/09wwlnSafire-t.html

Some locutions begin as bland bureaucratic euphemisms to conceal great crimes.
As their meanings become clear, these collocations gain an aura of horror. In
the past century, final solution and ethnic cleansing were phrases that sent a
chill through our lexicon. In this young century, the word in the news -- though
not yet in most dictionaries -- that causes much wincing during debate is the
verbal noun waterboarding.
Send comments and suggestions to: safireonlanguage
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William Safire's On Language Column »

If the word torture, rooted in the Latin for "twist," means anything (and it
means "the deliberate infliction of excruciating physical or mental pain to
punish or coerce"), then waterboarding is a means of torture. The predecessor
terms for its various forms are water torture, water cure and water treatment.

The early phrase Chinese water torture described a cruel ordeal invented by
Asian ancients. The purpose of slowly dripping water on the forehead until each
little splash became unbearable was not "to elicit information through harsh
interrogation" but to drive the victim mad. That phrase outlived its sadistic
practice and is in use today, adopted as a metaphor for "repeated annoyance
intended to infuriate." In a 1991 hostage standoff, President George H. W. Bush
decried "the cruel water torture of occasional vague promises."

The water cure was described as the response by some American soldiers to
atrocities by Filipino insurgents after our liberation of the Philippine Islands
in the Spanish-American war of 1898. At a Congressional hearing in the spring of
1902, the "cure" was described as water "poured onto his face, down his throat
and nose... . His suffering must be that of a man who is drowning but who cannot
drown." Mark Twain, writing in the May 1902 issue of the North American Review,
deplored "the torturing of Filipinos by the awful 'water cure' ... to make them
confess."

President Theodore Roosevelt disapproved, and in 1902 ordered the dismissal of
the United States general in charge; in a letter to a German friend dated July
19, 1902, however, Roosevelt was slightly more understanding: to find out which
Filipinos committed outrages, he wrote that "not a few" of our officers and
enlisted men "began to use the old Filipino method of mild torture, the water
cure. Nobody was seriously damaged, whereas the Filipinos had inflicted
incredible tortures upon our own people." T.R. was careful to add,
"Nevertheless, torture is not a thing that we can tolerate."

To more recent times: in 1953, a U.S. fighter pilot told United Press that North
Korean captors gave him the "water treatment" in which "they would bend my head
back, put a towel over my face and pour water over the towel. I could not
breathe... . When I would pass out, they would shake me and begin again." In
1976, a United Press International reporter wrote that U.S. Navy trainees "were
strapped down and water poured into their mouths and noses until they lost
consciousness... . A Navy spokesman admitted use of the 'water board' torture
... to 'convince each trainee that he won't be able to physically resist what an
enemy would do to him.' " In 1991, the columnist Jack Anderson -- confusing the
phrase about ancient practice with the modern development -- wrote of "the
Chinese water board demonstration, one of the most dangerous in the Navy
arsenal. Water is then poured over their faces by an instructor to simulate
prisoner-of-war treatment." Without the "Chinese" reference, such "simulated
drowning" is the method most often used today to describe the interrogation of
three suspected terrorists, about which the CIA director recently testified.

The earliest use of the phrase water boarding I can find is in an article about
the interrogation of the suspected terrorist Khalid Sheikh Mohammed (often
awarded the bogus title "9/11 mastermind"). It was posted on the Web site of The
New York Times on May 12, 2004, by James Risen, David Johnston and Neil Lewis,
published in The Times and carried worldwide on the A.P. wire the next day:
"CIA interrogators used graduated levels of force, including a technique
known as 'water boarding,' in which a prisoner is strapped down, forcibly pushed
under water and made to believe he might drown."

That month, the law professor Alan Dershowitz, in a Boston Globe op-ed column
critical of the rough interrogation method, put the two words together as a
verbal noun or gerund. Soon after, Senator John McCain -- no stranger to both
the wrong of painful coercion and the need for antiterror intelligence --
strongly denounced the procedure as "exquisite torture." Professor Dershowitz
informs my researcher, Juliet Mohnkern, that he considers today's brief
definition to be a "misapplication" of the complicated procedure that was the
origin of the word: strapping a person to a board that rested on a fulcrum, like
a seesaw, with the torturer on the other end able to plunge the prisoner's head
into a pool of water. "When I first used the word nobody knew what it meant,"
Dershowitz said. "Waterboarding has in the last few years taken on the generic
meaning 'simulated drowning.' "

Why did boarding take over from cure, treatment and torture? Darius Rejali, the
author of the recent book "Torture and Democracy" and a professor at Reed
College, has an answer: "There is a special vocabulary for torture. When people
use tortures that are old, they rename them and alter them a wee bit. They
invent slightly new words to mask the similarities. This creates an inside club,
especially important in work where secrecy matters. Waterboarding is clearly a
jailhouse joke. It refers to surfboarding" -- a word found as early as 1929 --
"they are attaching somebody to a board and helping them surf. Torturers create
names that are funny to them."

*


Ottawa Citzen --

February 25, 2008

HEAD OF GUANTANAMO TRIALS RESIGNS

by Steven Edwards

http://www.canada.com/ottawacitizen/news/story.html?
id=4aff5546-c852-4e5e-93bf-7c2cc68687fa&k=13379

NEW YORK (Canwest) - The Pentagon official overseeing the planned military
trials of Canadian Omar Khadr and other terror suspects at Guantanamo Bay in
Cuba resigned Monday - just days after a published report alleged he'd insisted
there be no acquittals.

As General Counsel at the U.S. defence department, William J. Haynes was a
leading architect of the military commission system U.S. President George. W.
Bush ordered established in the wake of the September 11, 2001, attacks.

But his alleged backroom insistence the commission produce only convictions
provoked a rush of commentary - much of charging it proved the trials will be a
sham.

"I am sorry to see Jim leave the Pentagon," U.S. Defence Secretary Robert Gates
said in Washington. "I have valued his legal advice and enjoyed working with
him. Jim held this important post longer than anyone in history and he did so
during one of America's most trying periods."

Haynes' alleged comments appeared in an interview Nation magazine conducted with
Col. Morris Davis, who resigned last October as the commission's chief
prosecutor, citing political interference.

"I said to (Haynes) that if we come up short and there are some acquittals in
our cases, it will at least validate the process," Davis was quoted as saying
about an August 2005 meeting the two men had.

"At which point, his eyes got wide and he said, 'Wait a minute, we can't have
acquittals. If we've been holding these guys for so long, how can we explain
letting them get off? ... We've got to have convictions.'"

The Pentagon has disputed Davis's recollection of the conversation, and denied
there is any connection between the Nation article and Haynes' resignation,
which takes effect next month.

"Mr. Haynes discussed his interest in returning to the private sector with the
Secretary of Defence some months ago," said spokeswoman Cynthia O. Smith. "Mr.
Haynes was recently presented with an excellent opportunity and he and his
family decided to take (it)."

Haynes' departure makes little difference for Khadr's prospects before the
commission, his U.S. military lawyer, Navy Lt.-Cmdr. Bill Kuebler, told Canwest
News Service.

"Whether or not Mr. Haynes is managing the commission, it is still the process
he helped to create," Kuebler said.

"Consistent with his comments, it is designed to produce convictions of the
presumptively guilty."

Kuebler spoke from Ottawa where, earlier in the day, he had joined opposition
MPs in calling on Prime Minister Stephen Harper to intervene on behalf of Khadr.

"The Guantanamo Bay military commission process does not provide a fair trial.
It is a political process," he said.

A military judge will rule soon on Kuebler's recent bid to have the charges
against Khadr - who was 15 when U.S. forces seized him on an Afghan battlefield
- dropped on grounds the commission isn't designed to try child soldiers.

"All (other) children taken to Guantanamo were ultimately released to be
reintegrated back into the societies of their home countries - including a 14-
year-old Afghani boy who was responsible for the death of a U.S. serviceman,"
Kuebler said.

Kuebler argued the United States has held onto Khadr on suspicion he has
"intelligence value." Khadr's father, Ahmed Said Khadr, had been an al-Qaida
operative close to Osama bin Laden before being killed in a U.S. air raid.

But Pentagon spokesman J.D. Gordon said the litany of charges against Khadr
warrant his detention and eventual trial as an adult. He is accused in a grenade
attack that left a U.S. serviceman dead.

"Omar Khadr is charged with murder, attempted murder, conspiracy and spying, all
in violation of the Military Commissions Act," he said.

"Canadian law and U.S. law both provide that a person of Khadr's age alleged to
have committed such offences can be tried as an adult ... If Khadr is found
guilty, however, age may be relevant at sentencing."

Barring a successful motion to dismiss, Khadr is scheduled to go on trial in
May.

*


Washington Post --

February 23, 2008

JUSTICE PROBES AUTHORS OF WATERBOARDING MEMOS

by Dan Eggen

http://www.washingtonpost.com/wp-dyn/content/
article/2008/02/22/AR2008022201643.html

An internal watchdog office at the Justice Department is investigating whether
Bush administration lawyers violated professional standards by issuing legal
opinions that authorized the CIA to use waterboarding and other harsh
interrogation techniques, officials confirmed yesterday.

H. Marshall Jarrett, counsel for the Office of Professional Responsibility,
wrote in a letter to Democratic lawmakers that his office is investigating the
"circumstances surrounding" Justice opinions that established a legal basis for
the CIA's interrogation program, including a now-infamous memo from August 2002
that narrowly defined torture and was later rescinded by the department.

"Among other issues, we are examining whether the legal advice contained in
those memoranda was consistent with the professional standards that apply to
Department of Justice attorneys," Jarrett wrote.

This is the second publicly disclosed Justice Department investigation related
to the CIA's use of waterboarding, a type of simulated drowning that is
considered torture by most human rights groups and legal scholars. Jarrett's
inquiry got underway in 2004, but was not confirmed publicly until now,
officials said.

In January, Attorney General Michael B. Mukasey assigned a special U.S. attorney
to investigate whether CIA officials committed crimes by destroying
interrogation videotapes of two high-level al-Qaeda detainees, including one who
was waterboarded. But Mukasey has rebuffed demands from Congress to investigate
the interrogations themselves, saying officials were acting under legal advice
from the Justice Department.

Justice spokesman Peter A. Carr said in a statement that the existence of an OPR
investigation "in no way suggests that those who rely on the Department's advice
should be subjected to a criminal investigation."

OPR is also investigating whether Justice lawyers followed professional
standards in helping to authorize a warrantless surveillance program by the
National Security Agency. In addition, the office is part of a probe of the
scandals surrounding the firings of nine U.S. attorneys in 2006, which led to
the resignation of Attorney General Alberto R. Gonzales last fall.

The results of OPR investigations are usually kept confidential because they
focus on allegations of professional misconduct or other personnel issues. But
in his letter Monday to Sens. Richard J. Durbin (D-Ill.) and Sheldon Whitehouse
(D-R.I.), Jarrett wrote that investigators will consider releasing a "non-
classified summary" at the conclusion of the investigation "because of the
significant public interest in this matter."

Durbin said in a statement: "A hard look at DOJ officials who approved
waterboarding as a lawful interrogation technique is long overdue." He added
that officials involved "must be held accountable for their actions."

The August 2002 memo was addressed to Gonzales, then the White House counsel,
and was signed by Jay S. Bybee, then the head of the Office of Legal Counsel and
now a federal appeals court judge in San Francisco. The memo's main writer was
one of Bybee's deputies, John Yoo, now a law professor at the University of
California at Berkeley.

The memo was formally withdrawn in 2004 by Jack L. Goldsmith, who succeeded
Bybee as head of OLC. Goldsmith concluded that legal opinions on the NSA
program, torture and other issues were fundamentally flawed and told the Senate
last year that the memos created "a legal mess."

Two other Justice memos that are known to have dealt with waterboarding and
harsh tactics are still-secret opinions penned in 2005 by Steven G. Bradbury,
who is currently the acting OLC chief. Administration officials have said those
opinions authorized a number of techniques, including waterboarding, sleep
deprivation and head-slapping.

The Office of Professional Responsibility has the power to recommend punishments
for current employees or to refer the most serious cases, involving intentional
misconduct or reckless behavior by current or former Justice lawyers, to state
bars. The office can also compile evidence of criminal wrongdoing for referral
to federal prosecutors.

Debra L. Roth, a Washington lawyer who represents federal employees in internal
investigations, said the ramifications of an OPR inquiry can be very serious,
particularly if the office refers a situation to one of the state bars that
license lawyers.

"It's very serious to have a bar referral from the Department of Justice,
particularly if they found you intentionally violated rules of misconduct or
acted with reckless disregard," Roth said. "If a lawyer loses their license to
practice law, you've lost your access to your livelihood."

The CIA's "enhanced interrogation program" used a variety of coercive techniques
on suspected al-Qaeda associates after the Sept. 11, 2001, attacks. CIA Director
Michael V. Hayden acknowledged this month that, in 2002 and 2003, three suspects
had been subjected to waterboarding, which involves strapping a prisoner to a
board or table with his feet higher than his head and pouring or dripping water
on cloth or cellophane over the nose.

Human rights advocates and legal scholars say the practice constitutes torture
under U.S. laws and international treaties, but Bush administration officials
say it was used under careful standards and controls and was not torture under
U.S. laws at the time.

*


New York Times --

February 23, 2008

WATERBOARDING FOCUS OF INQUIRY BY JUSTICE DEPARTMENT

by Scott Shane

http://www.nytimes.com/2008/02/23/washington/23justice.html

WASHINGTON -- The Justice Department revealed Friday that its internal ethics
office was investigating the department's legal approval for waterboarding of
Qaeda suspects by the Central Intelligence Agency and was likely to make public
an unclassified version of its report.

The disclosure by H. Marshall Jarrett, the head of the department's Office of
Professional Responsibility, was the first official acknowledgment of an
internal review of the legal memorandums the department has issued since 2002
that authorized waterboarding and other harsh interrogation methods.

Mr. Jarrett's report could become the first public accounting for legal advice
that endorsed methods widely denounced as torture by human rights groups and
legal authorities. His office can refer matters for criminal prosecution; legal
experts said the most likely outcome was a public critique of the legal opinions
on interrogation, noting that Mr. Jarrett had the power to reprimand or to seek
the disbarment of current or former Justice Department lawyers.

The cloak of secrecy that long concealed the CIA's secret interrogation program
and its legal underpinnings has gradually broken down.

The CIA director, Gen. Michael V. Hayden, publicly admitted for the first time
two weeks ago that the agency used waterboarding in 2002 and 2003 in the
interrogation of three Qaeda suspects but said that the technique was no longer
used, and its legality under current law is uncertain. The technique, which has
been used since the Spanish Inquisition and has been found illegal in the past
by American courts, involves water poured into the nose and mouth to create a
feeling of drowning.

After General Hayden's acknowledgment, Attorney General Michael B. Mukasey
rebuffed demands for a criminal investigation of interrogators who used
waterboarding or of their superiors, saying CIA officers could not be prosecuted
for actions the Justice Department had advised them were legal. Mr. Jarrett's
review focuses on the government lawyers who gave that advice.

Mr. Jarrett's disclosure came as prosecutors and FBI agents conduct a criminal
investigation of the CIA's destruction in 2005 of videotapes of harsh
interrogations and a week after Congress passed a ban on coercive
interrogations, which President Bush has said he will veto.

Mr. Jarrett did not say when his investigation might conclude. He did not
respond to a request on Friday for an interview.

In a letter to two Democratic senators, Richard J. Durbin of Illinois and
Sheldon Whitehouse of Rhode Island, Mr. Jarrett wrote that the legal advice
approving waterboarding was one subject of an investigation into "the
circumstances surrounding the drafting" of a Justice legal memorandum dated Aug.
1, 2002. The document declared that interrogation methods were not torture
unless they produced pain equivalent to that produced by organ failure or death.
The memorandum, drafted by a Justice Department lawyer, John Yoo, and signed by
Jay S. Bybee, then head of the department's Office of Legal Counsel, was
withdrawn in 2004.

Mr. Jarrett said the investigation was also covering "related" legal memorandums
prepared by the Office of Legal Counsel since 2002. That suggested the
investigation would address still-secret legal opinions written in 2005 by
Steven G. Bradbury, then and now the acting head of the Office of Legal Counsel,
that gave legal approval for waterboarding and other tough methods, even when
used in combination.

Mr. Jarrett said his office was "examining whether the legal advice in these
memoranda was consistent with the professional standards that apply to
Department of Justice attorneys."

"Because of the significant public interest in this matter, O.P.R. will consider
releasing to Congress and the public a nonclassified summary of our final
report," Mr. Jarrett wrote, using the initials for the Office of Professional
Responsibility.

Justice Department officials said that the O.P.R. inquiry began more than three
years ago and noted that it was mentioned in a Newsweek article in December
2004. It has since been expanded, the officials said, to cover more recent legal
opinions on interrogation.

Mr. Jarrett's letter, dated Monday, came in reply to a Feb. 12 letter from Mr.
Durbin and Mr. Whitehouse to him and the Justice Department's inspector general,
Glenn A. Fine, seeking an investigation into the department's legal approval of
waterboarding.

"Despite the virtually unanimous consensus of legal scholars and the
overwhelming weight of legal precedent that waterboarding is illegal," the
senators wrote, "certain Justice Department officials, operating behind a veil
of secrecy, concluded that the use of waterboarding is lawful. We believe it is
appropriate for you to investigate the conduct of these Justice Department
officials."

Mr. Fine replied in a letter this week that the law gave Mr. Jarrett's office
responsibility for reviewing the actions of department lawyers providing legal
advice. Mr. Jarrett confirmed that his office was investigating.

Mr. Jarrett reports to the attorney general and oversees only the professional
conduct of Justice Department attorneys. He does not enjoy the independence or
authority of Mr. Fine, who covers all aspects of Justice operations and also
reports to Congress.

In 2006, when Mr. Jarrett tried to look into the Justice Department's role in
approving the National Security Agency's domestic surveillance program, Mr. Bush
blocked the investigation by denying Mr. Jarrett's investigators the necessary
security clearances. Mr. Fine's office subsequently obtained the necessary
clearances and began such an investigation.

Last November, days after Mr. Mukasey was confirmed as attorney general, Mr.
Bush reversed course and granted clearances to Mr. Jarrett's staffers, who began
a delayed review of the legal authorization for the NSA program.

Mr. Durbin and Mr. Whitehouse have been among the most outspoken critics in
Congress of harsh interrogation methods. They have called on Mr. Bush to
withdraw the nomination of Mr. Bradbury, author of the 2005 interrogation
memorandums, as chief of the Office of Legal Counsel; he has filled the job on
an acting basis since 2005.

In 2004, Mr. Durbin first proposed a ban on cruel, inhuman and degrading
treatment that Congress passed in 2005, when it was sponsored by Senator John
McCain, Republican of Arizona.

Mr. Whitehouse, a former United States attorney, said in an interview that he
believed the August 2002 memo on torture, as well as classified opinions he had
reviewed, fell far short of the Justice Department's standards for scholarship.
He said that in approving waterboarding, the opinions ignored both American
military prosecutors' cases against Japanese officers for waterboarding American
prisoners during World War II and a federal appeals court's decision that upheld
the 1983 conviction of a Texas sheriff for using "water torture" on jail
inmates.

"I'm very, very pleased that the Office of Professional Responsibility is
looking into this," Mr. Whitehouse said.

Jose Padilla, the American sympathizer of Al Qaeda serving a 17-year sentence
for conspiring to help violent Muslim extremists abroad, filed a lawsuit in
January against Mr. Yoo, who left Justice in 2003 to return to his job as a law
professor at the University of California, Berkeley. The lawsuit claims Mr.
Yoo's legal opinions permitted the designation of Mr. Padilla as an enemy
combatant and his interrogation using methods that amounted to torture.

Mr. Yoo, who asserted that a president during wartime has extraordinarily broad
powers, was a highly influential figure in the Justice Department in the first
year after the Sept. 11, 2001, terrorist attacks. His views found favor with
Vice President Dick Cheney and his legal adviser, David S. Addington, who shared
his views of presidential power.

But some of Mr. Yoo's opinions, including the August 2002 memo on torture, were
withdrawn in 2004 after Jack L. Goldsmith took over as head of the Office of
Legal Counsel. Mr. Yoo could not be reached for comment Friday.

*


AFP --

February 22, 2008

EX-GUANTANAMO PROSECUTOR TO TESTIFY FOR SUSPECT: LAWYER

http://afp.google.com/article/ALeqM5gDOPD7U_LN3bU51mV54F97stXeow

WASHINGTON (AFP) -- The former chief prosecutor at the US military prison in
Guantanamo Bay is to testify for the defense in the case of an ex-driver for
Osama bin Laden, a lawyer for the suspect said Friday.

Colonel Morris Davis, who resigned from his post in October, is to testify on
behalf of Salim Hamdan, a Yemeni accused of delivering weapons to Al-Qaeda
operatives, who is due to be tried by a special military commission.

"We do expect him to testify," said one of Hamdan's lawyers Andrea Prasow,
referring to Davis, an Air Force officer who from 2005 to 2007 oversaw
investigations against suspects at the base in Guantanamo Bay, Cuba.

Davis wrote in the New York Times this week that he resigned over a conflict
with his superiors on whether information extracted by waterboarding -- a form
of simulated drowning widely considered torture -- could be used at a trial.

He considered evidence obtained by waterboarding "off-limits" for the
commissions.

"To do otherwise is not only an affront to American justice, it will potentially
put prosecutors at risk for using illegally obtained evidence," he wrote.

"Unfortunately, I was overruled on the question, and I resigned my position to
call attention to the issue."

Hundreds of suspects rounded up abroad in the US government's "war on terror"
have been held at Guantanamo Bay, but none have yet been tried -- a cause of
criticism by rights groups.

"There are some bad men at Guantanamo Bay and a few deserve death, but only
after trials we can truthfully call full, fair and open," Davis said.

He told The Nation magazine on Thursday that the man who now oversees the
military tribunal process for the Pentagon, general counsel William Haynes, has
pressed for convictions at the controversial prison.

"I said to him (Haynes) that if we come up short and there are some acquittals
in our cases, it will at least validate the process," Davis was quoted as
saying.

"At which point, his eyes got wide and he said, 'Wait a minute, we can't have
acquittals. If we've been holding these guys for so long, how can we explain
letting them get off? ... We've got to have convictions.'"

Haynes judged that "waterboarding is a lawful technique to use on the detainees,
which I wholeheartedly disagree with," Davis said on NPR radio.

Asked for comment, a Pentagon spokesman said: "We dispute Colonel Davis'
allegations." The spokesman denied Davis' charges that the military commissions
had been politicized.

"I have no sympathy for Mr Hamdan. But I do think he is entitled to a fair trial
that's free of political influence," Davis, who now works as a lawyer at an air
force base in Washington, told NPR.

Davis' testimony is expected at a pre-trial hearing around the end of April,
Prasow said. The trial is scheduled to start in late May.

*


The Nation --

February 20, 2008

RIGGED TRIALS AT GITMO

by Ross Tuttle

http://www.thenation.com/doc/20080303/tuttle

Secret evidence. Denial of habeas corpus. Evidence obtained by waterboarding.
Indefinite detention. The litany of complaints about the treatment of prisoners
at Guantanamo Bay is long, disturbing and by now familiar. Nonetheless, a new
wave of shock and criticism greeted the Pentagon's announcement on February 11
that it was charging six Guantanamo detainees, including alleged 9/11 mastermind
Khalid Shaikh Mohammed, with war crimes -- and seeking the death penalty for all
of them.

Now, as the murky, quasi-legal staging of the Bush Administration's military
commissions unfolds, a key official has told The Nation that the trials have
been rigged from the start. According to Col. Morris Davis, former chief
prosecutor for Guantanamo's military commissions, the process has been
manipulated by Administration appointees to foreclose the possibility of
acquittal.

Colonel Davis's criticism of the commissions has been escalating since he
resigned in October, telling the Washington Post that he had been pressured by
politically appointed senior Defense officials to pursue cases deemed "sexy" and
of "high interest" (such as the 9/11 cases now being pursued) in the run-up to
the 2008 elections. Davis, once a staunch defender of the commissions process,
elaborated on his reasons in a December 10, 2007, Los Angeles Times op-ed. "I
concluded that full, fair and open trials were not possible under the current
system," he wrote. "I felt that the system had become deeply politicized and
that I could no longer do my job effectively."

CONTINUED BELOW
Then, in an interview with The Nation in February after the six Guantanamo
detainees were charged, Davis offered the most damning evidence of the military
commissions' bias -- a revelation that speaks to fundamental flaws in the Bush
Administration's conduct of statecraft: its contempt for the rule of law and its
pursuit of political objectives above all else.

When asked if he thought the men at Guantanamo could receive a fair trial, Davis
provided the following account of an August 2005 meeting he had with Pentagon
general counsel William Haynes -- the man who now oversees the tribunal process
for the Defense Department.

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis,
referring to the Nazi tribunals in 1945, considered the model of procedural
rights in the prosecution of war crimes. In response, Davis said he noted that
at Nuremberg there had been some acquittals, which had lent great credibility to
the proceedings.

"I said to him that if we come up short and there are some acquittals in our
cases, it will at least validate the process," Davis continued. "At which point,
[Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals.
If we've been holding these guys for so long, how can we explain letting them
get off? We can't have acquittals. We've got to have convictions.'"

Davis submitted his resignation on October 4, 2007, just hours after he was
informed that Haynes had been put above him in the commissions' chain of
command. "Everyone has opinions," Davis says. "But when he was put above me, his
opinions became orders."

Reached for comment, Defense Department spokesperson Cynthia Smith said, "The
Department of Defense disputes the assertions made by Colonel Davis in this
statement regarding acquittals."

"The fact that [Haynes] said there can be no acquittals will stain the entire
[tribunal] process," says Scott Horton, who teaches law at Columbia University
Law School and has written extensively about Haynes's conflicts with the Judge
Advocate General's (JAG) corps, the judicial arm of the armed forces, which is
charged with implementing the military commissions. According to Horton, Haynes
tried to cut the JAG corps out of internal debates over the detention and
prosecution of detainees, knowing it was critical of the Administration's views.
In private memos and in public Senate testimony, high-ranking officers of the
corps have repeatedly expressed concerns about the Administration's
justification of "extreme interrogation techniques."

"The JAG corps consists of a group of rigorous professionals, but Haynes never
trusted them to do their job," says Horton. "His clashes have always had the
same subtext -- they want to be independent; he wants them to do political dirty
work."

Haynes, a political appointee and chief legal adviser to Defense secretaries
Donald Rumsfeld and Robert Gates, was nominated in 2006 by the Bush
Administration for a lifetime seat as a judge in the Court of Appeals for the
Fourth Circuit. But his nomination never got out of committee, primarily because
of the opposition of Republican Senator (and former military lawyer) Lindsey
Graham and other members alarmed over Haynes's role in writing, or supervising
the writing of, Pentagon memos advocating the use of harsh interrogation
techniques the Geneva Conventions classify as torture.

Currently, in his capacity as Pentagon general counsel, Haynes oversees both the
prosecution and the defense for the Guantanamo commissions.

"You would think a person in that position wouldn't be favoring one side," says
Colonel Davis.

Told of Davis's story about Haynes, Clive Stafford Smith, a defense attorney who
has represented more than seventy Guantanamo clients, said, "Hearing it makes me
think I'm back in Mississippi representing a black man in front of an all-white
jury."

He adds, "It confirms what people close to the system have always said," noting
that when three prosecutors -- Maj. Robert Preston, Capt. John Carr and Capt.
Carrie Wolf -- requested to be transferred out of the Office of Military
Commissions in 2004, they said they'd been told the process was rigged. In an e-
mail to his supervisors, Preston had said that there was thin evidence against
the accused. "But they were told by the chief prosecutor at the time that they
didn't need evidence to get convictions," says Stafford Smith.

At the time, the military wrote it off as "miscommunication" and "personality
conflicts." And then there were changes in personnel. "They told us that the
system had been cleaned up...but I guess the more things change, the more they
stay the same," says Stafford Smith.

The terrible truth is that even if acquittals were possible, the government has
declared that it can continue to detain anyone deemed an "enemy combatant" for
the duration of hostilities -- no matter the outcome of a trial. Most of the 275
men held at Guantanamo are classified as "enemy combatants," and the hostilities
in the "war on terror" could be never-ending.

Says ACLU staff attorney Ben Wizner, "The trial doesn't make a difference. They
can hold you there forever until they decide to let you out." The one person to
be released from Guantanamo through the judicial process, Australian David
Hicks, pleaded guilty. As Wizner wrote in the Los Angeles Times in April 2007,
"In an ordinary justice system, the accused must be acquitted to be released. In
Guantanamo, the accused must plead guilty to be released."

Still, the trials serve a purpose for the government by providing the semblance
of a legitimate judicial process. According to defense attorneys involved -- and
many of the former prosecutors, like Davis -- the process is political, not
legal.

"If someone was acquitted, then it would suggest we did the wrong thing in the
first place. That can't happen," says Horton sardonically. "When the government
decides to clear someone, it calls the person 'no longer an enemy combatant'
instead of just saying they made a mistake."

He adds, "For people like Haynes, justice is meant to serve the party."

*


New York Times --

February 20, 2008

TAPE INQUIRY: EX-SPYMASTER IN THE MIDDLE

by Mark Mazzetti and Scott Shane

http://www.nytimes.com/2008/02/20/washington/20intel.html

WASHINGTON -- It would become known inside the Central Intelligence Agency as
"the Italian job," a snide movie reference to the bungling performance of an
agency team that snatched a radical Muslim cleric from the streets of Milan in
2003 and flew him to Egypt -- a case that led to criminal charges in Italy
against 26 Americans.

Porter J. Goss, the CIA director in 2005 when embarrassing news reports about
the operation broke, asked the agency's independent inspector general to start a
review of amateurish tradecraft in the case, like operatives staying in five-
star hotels and using traceable credit cards and cellphones.

But Jose A. Rodriguez Jr., now the central figure in a controversy over
destroyed CIA interrogation tapes, fought back. A blunt-spoken Puerto Rico
native and former head of the agency's Latin America division, he had been
selected by Mr. Goss months earlier to head the agency's troubled clandestine
branch. Mr. Rodriguez told his boss that no inspector general review would be
necessary -- his service would investigate itself.

It was a protective instinct that ran deep inside the CIA's fabled Directorate
of Operations, the agency's most powerful branch. The same instinct would
resurface months later, when Mr. Rodriguez dispatched a cable to the agency's
Bangkok station ordering the destruction of videotapes that showed CIA officers
carrying out harsh interrogations of operatives of Al Qaeda.

"He would always say, 'I'm not going to let my people get nailed for something
they were ordered to do,' " said Robert Richer, Mr. Rodriguez's deputy in the
clandestine branch until late 2005, who recalls many conversations with his boss
about the tapes.

NO RECORD OF PUNISHMENT

With the tapes' destruction now the subject of overlapping Congressional and
criminal inquiries, investigators are trying to determine whether Mr. Rodriguez,
59, acted on his own or with at least tacit approval from superiors at the CIA
or the White House. Officials now say a recent review by the CIA of Mr.
Rodriguez's personnel file found no record of any reprimand or punishment for
his action.

The destruction of the tapes is hardly the first time that the CIA's mission to
take risks and to counter threats abroad has come into conflict with American
notions of justice, legality and human rights. From assassination plots in the
1960s to the Iran-contra scandal of the 1980s, American spymasters have found
themselves in legal jeopardy for acts they said were lawful and necessary.

The tapes episode and Mr. Rodriguez's role reflect the intensity of the
particular tensions that have played out since the Sept. 11 attacks, a period in
which the CIA has been asked to play a new role in capturing, questioning and
imprisoning terror suspects, and is now facing questions about whether its
conduct crossed the line into illegality.

The events surrounding the tapes unfolded during one of the most tumultuous
periods in the CIA's 60-year history, when the insular and proud clandestine
service clashed with the strong-willed team that Mr. Goss, a former Florida
congressman, brought with him to the agency. Mr. Rodriguez was "the man in the
middle," Mr. Richer said.

Mr. Rodriguez and Mr. Goss declined to be interviewed for this article.

Mr. Goss was not the first CIA director to discover that operatives who were
trained to destabilize foreign governments could sometimes put those same skills
to work inside the agency.

In a striking metaphor for Mr. Goss's powerlessness, as officers of the
Directorate of Operations, or D.O., ignored his instructions and shunned his
staff, he later told a colleague that "when he pulled a lever to make something
happen in the D.O., it wasn't just that nothing happened," the colleague
recalled. "It was that the lever came off in his hands."

Mr. Rodriguez joined the CIA in 1976, at a time when the agency was still
reeling from Congressional investigations into assassination plots, coup
attempts and domestic wiretapping.

With his thick accent and undergraduate and law degrees from the University of
Florida, he stood out in the clandestine service, which even in the 1970s was a
preserve of the Anglo-Saxon, Ivy League establishment.

But over the next two decades in a series of overseas postings, Mr. Rodriguez
ascended the ranks of the directorate's Latin America division, serving from
Peru to Belize and heading the CIA stations in Panama, the Dominican Republic
and Mexico.

He ran the kind of espionage missions and covert operations that defined the
agency, overshadowing its other task of analyzing intelligence from all sources.
Clandestine officers fashioned themselves as the "fighter jocks" of the CIA, the
swashbuckling spies who risked their lives for their country.

DOMINATING THE CULTURE

The Directorate of Operations "is a really small part of CIA, in terms of budget
and people," said Mark M. Lowenthal, a former assistant agency director. "But in
terms of culture, the D.O. dominates the place." In mid-2005, the directorate
was renamed the National Clandestine Service.

A popular boss, Mr. Rodriguez occasionally flashed the maverick spirit prized by
clandestine officers. One former colleague recalls that while in Mexico he named
his horse Business, instructing subordinates to tell the ambassador or the CIA
brass that he was "out on Business."

By the mid-1990s, Mr. Rodriguez was head of the Latin America division. But his
career was nearly cut short when the CIA inspector general reprimanded him in
1997 for a "remarkable lack of judgment" after he intervened to stop jailhouse
beatings by guards of a childhood friend arrested on drug charges in the
Dominican Republic.

A CIA officer stationed in the Dominican Republic complained to the inspector
general that the intervention was improper, according to a former agency
official. Mr. Rodriguez was removed as chief of the Latin America division, and
later returned to run the station in Mexico.

Shortly after the Sept. 11 attacks, he was tapped to become chief operating
officer of the agency's Counterterrorism Center, based at the CIA headquarters,
which was ballooning to nearly 1,500 officers from 300. There was grumbling that
Mr. Rodriguez, with no experience in the Muslim world, was given the job. But
seven months later, he was promoted to head the center, placing him in charge of
the hunt for Qaeda operatives and the interrogation of terrorist suspects in a
chain of secret CIA prisons.

By the time Mr. Goss was sworn in as director of central intelligence in late
September 2004, the agency's clandestine service was already embittered by
finger-pointing over the Iraq war.

The arrival of the new leader and his outspoken aides, dubbed the "Gosslings" by
some within the agency, made matters worse.

Many agency veterans suspected that Mr. Goss and his team were on a White House
mission to clean house at the CIA The two top officers of the clandestine
service, Stephen R. Kappes and Michael J. Sulick, soon quit.

When Mr. Goss looked for replacements, two agency officers turned him down,
fearing that accepting the job would be seen as a betrayal of the clandestine
branch. In the end, Mr. Goss offered the job to Mr. Rodriguez.

According to Mary Margaret Graham, a career clandestine officer who recently
retired as head of intelligence collection for the director of national
intelligence, Mr. Rodriguez had similar concerns about "betraying" fellow
undercover officers. He assured her that he had accepted the position "on his
terms."

"I think in hindsight they expected a much more pliable person than they got,"
she said.

Mr. Rodriguez traveled to overseas stations more than many predecessors, to
build morale and get a firsthand account of operations. One result was that the
clandestine branch's daily operations were often left to his chief of staff, who
had worked with Mr. Rodriguez in the Counterterrorism Center. Because she is
still under cover, The New York Times is not publishing her name.

Several former CIA officials recall repeated clashes between Mr. Rodriguez's
chief of staff and aides to Mr. Goss on matters from the trivial to the serious.

One serious concern, in the view of Mr. Goss's staff, was the resistance of Mr.
Rodriguez and his chief of staff to outside reviews of such missteps by the
clandestine service as the Italian operation. In the matter of the tapes, there
was also concern that Mr. Rodriguez and others who were involved in creating
them were now pushing to destroy them. "It was just that they weren't very
impartial judges," said a former CIA official.

Mr. Rodriguez, who was nearing retirement, saw the tapes as a sort of time bomb
that, if leaked, threatened irreparable damage to the United States' image in
the Muslim world, his friends say, and posed physical and legal risks to CIA
officers on them.

People close to Mr. Goss, who knew from his Congressional years how explosive
accusations of cover-up could be, insist he told Mr. Rodriguez the tapes should
be preserved.

But if Mr. Goss believed Mr. Rodriguez had disobeyed him, why did he not punish
the clandestine service chief? One former CIA official said White House
officials had complained about the news media firestorm that accompanied the
departure of Mr. Kappes and Mr. Sulick a year earlier, and Mr. Goss felt he
could not risk another blowup.

'LOYAL AND DEDICATED'

Robert S. Bennett, Mr. Rodriguez's lawyer, said his client was never instructed
to preserve the tapes and recalls no discussion of conflict of interest on his
part.

"Guys like Jose are loyal and dedicated and take risks to keep the country safe
from terrorism," Mr. Bennett said. "Now, his own government is investigating
him, and I think it's shameful."

Not long after the tapes were destroyed, Mr. Goss held a management retreat for
top agency officials meant in part to soothe tensions among the agency's dueling
branches. There the deputy director for intelligence -- the head of analysis --
complained openly about the arrogance of the clandestine branch and said
undercover officers thought they could get away with anything.

That was too much for Mr. Rodriguez. He stood up in the room, according to one
participant in the meeting, and shouted in coarse language that the analysis
chief should "wake up and smell the coffee," because undercover officers were at
the "pointy end of the spear."

The clandestine branch, Mr. Rodriguez was making it clear, would do what it
wanted.

* * *