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NEWS DIGEST 2008.09.01 - 2008.12.31
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Casper Star-Tribune --

December 28, 2008

VICE PRESIDENT DEFENDS HIS RECORD

by Jared Miller

http://www.casperstartribune.net/articles/2008/12/28/news/wyoming/
bbaf7bd253415b938725752c002680fa.txt

In an interview with the Star-Tribune last week, Vice President Dick Cheney
spoke about his future plans, why his term in office has been so controversial,
and the role his office played in keeping the east entrance of Yellowstone
National Park open in winter. Cheney spoke with the newspaper from his home in
Teton County, where he was spending time with family.

What role did your office play in the Park Service's decision to keep the east
entrance of Yellowstone National Park open in winter?

"We did work with the Park Service. My office was contacted by folks from Cody.
I talked to (Republican state Rep.) Colin Simpson. I'm familiar generally with
the importance of that east entrance to the folks in Cody, the business
community there. I recommended that my staff work on trying to keep that
entrance open.

"As vice president, I don't run anything. I'm not in charge of the Park Service,
but I can make suggestions, and my staff is actively involved in a lot of those
issues on my behalf."

What impact will the Obama administration and the Democratic Congress have on
important Western issues like wolf management and natural resource development?

"I'd be reluctant to make predictions at this point. It will depend, of course,
on who the people he has appointed perform and what kind of guidance and policy
they get from the White House.

"I think it helps to have people from the West in some of those key jobs. I
guess Sen. Ken Salazar from Colorado is going to take the interior (secretary)
job. I think that's helpful to have somebody from Colorado, the Rocky Mountain
West, in that post. Now, you know I'd rather have a conservative Republican,
given my view of the world. But Democrats won the election, and they get to fill
those posts, and we'll see how they do."

What do you say to Wyoming residents who remember you fondly as their
congressman but disagree strongly with the policy you've helped craft as vice
president?

"I think the facts are that we were faced with a unique set of circumstances in
the aftermath of 9/11, and we had to make some very tough decisions that not
everybody agreed with. But I think they were the right decisions, especially in
terms of defending the homeland.

"We've now gone seven and a half years without another attack. To do that, we
adopted policies, such as the Terrorist Surveillance Program that let us
intercept the communications of Al-Qaeda terrorists talking to folks inside the
U.S., the High Value Detainee Interrogation Program, the Patriot Act. These were
all measures we took that we felt were essential to defeat Al-Qaeda, to head off
the next attack, and to defend the nation. Not everybody agreed with them; some
of them have been controversial.

"Our critics have accused us of various and sundry deeds connected with those
programs. I don't think the criticism is warranted. And I don't think anybody
who has spent time looking specifically at the threat, and contemplating the
fact that the next attack on one of our cities might not be just with airline
tickets and box cutters as was true on 9/11, but rather with a biological and
nuclear weapon.

"That's what we had to guard against, and that's what we had to take steps to
prevent. Doing that has obviously generated a lot of controversy, but it goes
with the turf."

How do you explain your low approval rating?

"I don't have any idea. I don't follow the polls.

"My experience has been over the years that if you govern based upon poll
numbers, upon trying to improve your overall poll ratings, people I've
encountered who do that are people who won't make tough decisions. And the job
the president has and those who advise him is to make those basic fundamental
decisions for the nation that nobody else is authorized or able to make.

"First and foremost among those is to defend the nation. If you're going to
follow the polls, you are going to change your policy every week when the poll
comes out. Secondly, I think you're adversely affected by the fact that you can
get just about any result you want out of a poll.

"My own experience has been, in the administrations I've served in, for example
Gerald Ford, a man who made a very, very tough decision when he decided to
pardon Nixon, something that was extremely unpopular, universally condemned, but
30 years later he was praised as having done the right thing. So I think you
need to have that kind of approach to it rather than watch the polls on any
given day."

What is your assessment of Congresswoman-elect Cynthia Lummis, who in November
won your old House seat, and the rest of Wyoming's delegation?

"I've watched Cynthia and known her for a long time, through her role in the
Legislature and state government. I thought she would make a very able
congresswoman, and I'm sure she will do an excellent job. I thought she ran a
good campaign.

"She knows Wyoming. She's obviously spent a lot of time in public office in
Cheyenne, as well as in the ranching business. She's known all over the state
because of the time she spent as a statewide office holder. So she starts with
an excellent base in terms of putting together a successful career in the House.

"I also know Mike Enzi and Senator Barrasso very, very well ... I think they're
very able and very talented folks who do a great job for the state. I think it's
as strong a delegation as I can remember."

What are your future plans; how much time will you spend in Wyoming after you
leave office?

"We'll be spending our time between here and northern Virginia. We've got a home
here in Jackson where we plan to spend a lot more time here.

"We've got a home in northern Virginia, where all of our kids and grandkids are
located now, and we'll spend time there as well. I'd say it's probably going to
be a 50-50 proposition.

"We've always considered Wyoming home. It's where we vote and pay taxes ... it's
always been an important part of our lives. Now we'll have the opportunity to
spend more time here."

Any future political plans?

"I've been involved now for a long time... I ended up spending most of my career
in politics in government, and I've loved it. But I think there comes a time to
step aside, and I've reached that point in my career. We've got a lot of new
talent coming along, good people ready to take on major responsibilities, and
that's all to the good.

"Some of us have had a shot at it as I have over the course of the last 40
years. I think it's time now for us to step aside and watch from the sidelines.
If I can be helpful from time to time I will, but I have no desire whatsoever to
get back into elected office."

*


Murray Waas --

December 23, 2008

EXCLUSIVE: CHENEY'S ADMISSIONS TO THE CIA LEAK PROSECUTOR AND FBI

by Murray Waas

http://murraywaas.crooksandliars.com/2008/12/23/
exclusive-cheneys-admissions-to-the-cia-leak-prosecutor-and-fbi/

Vice President Dick Cheney, according to a still-highly confidential FBI report,
admitted to federal investigators that he rewrote talking points for the press
in July 2003 that made it much more likely that the role of then-covert CIA-
officer Valerie Plame in sending her husband on a CIA-sponsored mission to
Africa would come to light.

Cheney conceded during his interview with federal investigators that in drawing
attention to Plame's role in arranging her husband's Africa trip reporters might
also unmask her role as CIA officer.

Cheney denied to the investigators, however, that he had done anything on
purpose that would lead to the outing of Plame as a covert CIA operative. But
the investigators came away from their interview with Cheney believing that he
had not given them a plausible explanation as to how he could focus attention on
Plame's role in arranging her husband's trip without her CIA status also
possibly publicly exposed. At the time, Plame was a covert CIA officer involved
in preventing Iran from obtaining weapons of mass destruction, and Cheney's
office played a central role in exposing her and nullifying much of her work.

Cheney revised the talking points on July 8, 2003 -- the very same day that his
then-chief of staff, I. Lewis (Scooter) Libby, met with New York Times reporter
Judith Miller and told Miller that Plame was a CIA officer and that Plame had
also played a central role in sending her husband on his CIA sponsored trip to
the African nation of Niger.

Both Cheney and Libby have acknowledged that Cheney directed him to meet with
Miller, but claimed that the purpose of that meeting was to leak other sensitive
intelligence to discredit allegations made by Plame's husband, former ambassador
Joseph C. Wilson IV, that the Bush administration misrepresented intelligence
information to go to war with Iraq, rather than to leak Plame's identity.

That Cheney, by his own admission, had revised the talking points in an effort
to have the reporters examine who sent Wilson on the very same day that his
chief of staff was disclosing to Miller Plame's identity as a CIA officer may be
the most compelling evidence to date that Cheney himself might have directed
Libby to disclose Plame's identity to Miller and other reporters.

This new information adds to a growing body of evidence that Cheney may have
directed Libby to disclose Plame's identity to reporters and that Libby acted to
protect Cheney by lying to federal investigators and a federal grand jury about
the matter.

Still, for those in search of the proverbial "smoking gun", the question as to
whether Cheney directed Libby to leak Plaime's identity to the media at Cheney's
direction or Libby did so on his own by acting over zealously in carrying out a
broader mandate from Cheney to discredit Wilson and his allegations about
manipulation of intelligence information, will almost certainly remain an
unresolved one.

Libby was convicted on March 6, 2007 of four felony counts of lying to federal
investigators, perjury, and obstruction of justice, in attempting to conceal
from authorities his own role, and that of other Bush administration officials,
in leaking information to the media about Plame.

One of the jurors in the case, Dennis Collins, told the press shortly after the
verdict that he and many other jurors believed that Libby was serving as a "fall
guy" for Cheney, and had lied to conceal the role of his boss in directing
information about Plame to be leaked to the press.

The special prosecutor in the CIA leak case, Patrick Fitzgerald, said in both
opening and closing arguments that because Libby did not testify truthfully
during the course of his investigation, federal authorities were stymied from
determining what role Vice President Cheney possibly played in directing the
leaking of information regarding Plame that led to the end of her career as a
covert CIA officer, as well as jeopardizing other sensitive intelligence
information.

Speaking of the consequences of Libby's deceit to the FBI and a federal grand
jury, Fitzgerald, who is also the U.S. attorney for Chicago, said in his Feb.
20, 2007 closing argument: "There is talk about a cloud over the Vice President.
There is a cloud over the White House as to what happened. Do you think the FBI,
the Grand Jury, the American people are entitled to a straight answer?"

The implication from that and other comments made by Fitzgerald while trying the
case was that Libby had lied and placed himself in criminal jeopardy to protect
Cheney and to perhaps conceal the fact that Cheney had directed him to leak
information to the media about Plame.

Although it has been widely reported in the media that Cheney and Libby have
denied that Cheney directed Libby ever to speak to reporters about Plame, those
reports have been erroneous. As Washington Post.com columnist Dan Froomkin wrote
in this largely overlooked column, Libby instead had told both the FBI and a
federal grand jury that he was uncertain as to whether or not Cheney had
directed him to talk to reporters about Plame.

An FBI agent testified at Libby's trial, as Froomkin pointed out, that Libby had
told the FBI that during a July 12, 2003 conversation that Libby had with
Cheney, the two men possibly discussed "whether to report to the press that
Wilson's wife worked for the CIA."

That conversation occurred exactly four days after Cheney ordered the revision
of the talking points and Libby had his conversation with Judith Miller about
Plame.

And immediately after that July 12, 2003 conversation between Cheney and Libby,
Libby spoke by phone with Matthew Cooper, then a correspondent for Time
magazine, and confirmed for Cooper that Plame worked for the CIA and that she
had played a role in sending her husband to Niger.

A contemporaneous FBI report recounting the agents' interview with Libby also
asserts that Libby had refused to categorically deny to them that Cheney had
directed him to leak information to the press about Plame. A heavily redacted
copy of Libby's interviews with FBI agents was turned over this summer to the
House Committee on Oversight and Government Reform.

The committee's chairman, Rep. Henry Waxman (D-Ca.) wrote Attorney General
Michael Mukasey on June 3, 2008, reiterating an earlier request that Mukasey
turn over to the committee the FBI report of its interview of Vice President
Cheney in regards to the Plame matter:

"In his interview with the FBI, Mr. Libby states that it was 'possible' that
Vice President Cheney instructed [Libby] to disseminate information about
Ambassador Wilson's wife to the press. This is a significant revelation and, if
true, a serious matter. It cannot be responsibly investigated without access to
the Vice President's interview."

Mukasey declined to release the Cheney report to Waxman in particular, and
Congress in general.

But a person with access to notes of Cheney's interview with federal
investigators described to me what Cheney said during those interviews. Later
the same person read to me verbatim portions of the interview notes directly
relevant to this story.

***

At the time of the leak of Plame's identity, Cheney, Libby and other Bush
administration officials were attempting to discredit Wilson because of the
charges that he was making that the White House had manipulated intelligence
information to take the nation to war with Iraq. Wilson, a retired career
diplomat and former ambassador, had traveled to Niger in February 2002 on a CIA-
sponsored mission to investigate allegations that Saddam Hussein's regime had
attempted to procure uranium from the African nation. Wilson reported back to
the CIA that the allegations were most certainly untrue.

Despite numerous warnings from the CIA and elsewhere in government that the
Niger allegations were most likely false or even contrived, President Bush cited
them in his 2003 State of the Union address as a rationale to go to war with
Iraq.

On July 6, 2003, Wilson published an op-ed in The New York Times charging that
the Bush administration had "twisted" intelligence when it cited the alleged
Niger-Iraq connection in the president's State of Union earlier that year. At
the time, U.N. weapons inspectors in Iraq could not find out weapons of mass
destruction. Wilson's allegations were among the first from an authoritative
source that the administration might have misled the nation to go to war.

A central part of the effort to counter Wilson's allegations entailed
discrediting him by suggesting that his slection for the trip had been a case of
nepotism. Cheney, Libby, then White House political adviser Karl Rove, and other
White House officials told reporters that Wilson's wife, who worked at the CIA,
had been primarily responsible for selecting him to go to Niger.

The day after Wilson's op-ed, on July 7, 2003, Cheney personally dictated
talking points for then-presidential secretary Ari Fleischer and other White
House officials to use to counter Wilson's charges and discredit him.

A central purpose for writing the talking points was to demonstrate that the
Vice President's office had played little if any role in Wilson being sent to
Niger and that Cheney was not told of Wilson's mission prior to the war with
Iraq.

In talking points Cheney dictated on July 7, Cheney wrote as his first one: "The
Vice President's office did not request the mission to Niger." The three other
talking points asserted that the "Vice President's office was not informed of
Joe Wilson's mission"; that Cheney's office was not briefed about the trip until
long after it occurred, and that Cheney and his aides only learned about the
trip when they received press inquiries about it a full year later.

***

About a month prior to Wilson having written his own op-ed for the Times, he had
told his story of his mission to Niger to New York Times columnist Nicholas
Kristof, who wrote a detailed account of Wilson's trip and his allegations.

In reaction to that column, Cheney personally made inquiries about the matter to
both then-CIA director George Tenet and then-CIA deputy director John
McLaughlin, apparently on either June 11 or June 12, 2003, according to evidence
made public at Libby's federal criminal trial. Both Tenet and McLaughlin told
Cheney of Plame's role (in reality, a tenuous one) to the selection of her
husband for the Niger mission.

On June 12, Cheney and Libby spoke, and Cheney told Libby about Plame's supposed
role.

In notes that Libby took of the conversation, Libby wrote that Cheney said he
been told by the CIA officials that Wilson's mission to Niger "took place at our
behest"-in reference to the CIA. More specifically, the notes indicted the
mission was undertaken at the request of the CIA's covert Counterproliferation
Division. The notes said that Cheney told Libby that he had been informed that
Wilson's "wife works in that division."

Cheney then instructed Libby, according to the notes, to ask the CIA to set the
record straight by saying that the Vice President's office "didn't known about
[the] mission" and "didn't get the report back", in reference to the fact that
Cheney's office never received a copy of a CIA debriefing report of Wilson after
he returned from Niger.

Surprisingly, despite the prominence of Kristof in particular, and the Times in
general, the column was largely ignored -- at least for a while.

But Wilson's own July 6, 2003 Times op-ed column by rekindled the issue. Stoking
the flames, Wilson then also appeared on Meet the Press that same morning to
discuss his column.

Wilson's column, prosecutor Fitzgerald asserted at Libby's trial, ignited a
"firestorm."

Wilson's charges, Fitzgerald went on to say, "came in the fourth month of the
war in Iraq, the fourth month when weapons of mass destruction were not found.
Coming as they did, they ignited a media firestorm... the White House was
stunned."

In a handwritten notation at the bottom of the July 6 op-ed, Cheney wrote out
several rhetorical questions regarding Wilson and Plame: "Have they [the CIA]
done this before? Send an Amb. to answer a question? Do we ordinarily send
people out pro-bono to work for us? Or did his wife send him on a junket?"

The next day, July 7, Cheney crafted talking points to be distributed to the
media which emphasized that his office had not requested that Wilson go to
Niger, that the CIA had not told him about Wilson's findings, and that he
personally only learned of the matter long after the U.S. invaded Iraq-- from
press reports.

The four talking points dictated by Cheney to his press aide, Catharine Martin,
stated:

    * The Vice President's office did not request the mission to Niger.

    * The Vice President's office was not informed of Joe Wilson's mission.

    * The Vice President's office did not receive a briefing about Mr. Wilson's
      mission after he returned.

    * The Vice President's office was not aware of Mr. Wilson's mission until
      recent press reports accounted for it.

Martin, in turn, sent those talking points on to, among others, Ari Fleischer,
the then White House press secretary, who utilized them in his briefing or
"gaggle" for the press that morning.

Fleischer told reporters that same day, according to a transcript of the
briefing: "The Vice President's office did not request the mission to Niger. The
Vice president's office was not informed of his mission and he was not aware of
Mr. Wilson's mission until recent press accounts... accounted for it. So this
was something that the CIA undertook... They sent him on their own volition."

Also hat same day, Fleischer, who was planning to leave his position as White
House press secretary, had lunch with Libby, during which, according to
Fleisher's testimony at Libby's trial, Libby spoke extensively about the role of
Plame in sending her husband on the Niger mission.

At the lunch, Fleischer would testify, Libby told him: "Ambassador Wilson was
sent by his wife. His wife works for the CIA." Fleischer testified that Libby
even referred to Wilson's wife by her maiden name, Valerie Plame.

"He added it was 'hush-hush', and on the QT,' and that most people didn't know
it," Fleisher testified.

The very next morning, on July 8, Libby met with reporter Judith Miller of the
New York Times for two hours for breakfast at the St. Regis Hotel in downtown
Washington in an effort to staunch the damage done by Wilson's column.

Miller testified at Libby's trial during the breakfast Libby told her that
Wilson's wife worked at the CIA and that Plame had played a role in selecting
him for his Niger mission.

In testimony before the federal grand jury in the CIA leak case, Libby testified
that Cheney had instructed him before the breakfast to "get everything out."
Regarding the allegations that he leaked information to Miller about Plame,
Libby told federal investigators that he had never done so.

During the same breakfast, Libby also disclosed to Miller portions of a then-
still classified National Intelligence Estimate which Cheney believed
demonstrated that the CIA was to blame for robustly endorsing the Niger
information as accurate.

President Bush had personally and secretly declassified portions of the NIE for
the specific purpose of leaking them to Miller. In disclosing selective portions
of the NIE to Miller, only the President, the Vice President, and Libby knew
about the secret declassification.

"So far as you know, the only three people who knew about this would be the
President, the Vice President, and yourself," Libby was asked by Fitzgerald
during one session by Libby before the federal grand jury hearing evidence in
the CIA leak case,

"Correct, sir," Libby answered.

Also that same day, July 8, 2003, Cheney met again Cathy Martin-- this time on
Cheney's office on Capitol Hill. During the meeting, according to an account
Martin gave federal investigators, Cheney told Martin that he wanted some
changes and additions made to the talking points devised the previous day that
had already been disseminated to Fleischer and other White House communications
aides.

Martin told investigators that Cheney dictated the changes to her, and in each
case, she took down word for word what the Vice President said. (Martin later
repeated this same account under oath during Libby's trial.)

Cheney told Martin that he wanted the very first of the talking points to now
read: "It is not clear who authorized Joe Wilson's trip to Niger."

Cheney, of course, knew that the CIA had authorized Wilson's trip and had sent
Wilson to Niger. Both Cheney and Libby had been told by a large number of CIA
and State Department officials by then that such was the case, according to the
sworn testimony of those officials at Libby's trial. And the day before,
Fleisher had told the press that Wilson's mission to Niger was "something that
the CIA undertook" and that they had also "sent him on their own volition."

Why would Cheney change the talking points from the day before if he knew that
the CIA had sent Wilson and he and his staff had encouraged Fleischer to say
that the day before? Obviously, saying it was unclear who had authorized
Wilson's trip to Niger was not only untrue, it also pointed reporters in the
direction of asking about Plame.

Asked about this during his FBI interview, Cheney was at a loss to explain how
the change of the talking points focusing attention on who specifically sent
Wilson to Niger would not lead reporters might lead to exposure of Plame's role
as a CIA officer.

There was a matter, as well, as to why Cheney changed the talking points to say
it was unclear who sent Wilson when in fact he had admitted earlier during the
same interview with investigators that he clearly knew it was the CIA.

Finally, of course, there was the fact that on the very same day that Cheney
changed the talking points that Libby was meeting with Miller and telling Miller
that Plame worked for the CIA and had sent her husband to Niger.

In his closing argument during the Libby trial, however, Fitzgerald did mention
the issue briefly. None of the media covering the trial, however (with the sole
exception once again being Dan Froomkin), appeared to understand its
significance or broader context, and did not report it.

Noting the change of Cheney's July 7 and July 8, 2003 talking points, Patrick
Fitzgerald said: "The question of who authorized became number one. That's a
question that would lead to the answer: Valerie Wilson."

***

Four days later, on July 12, 2003 Cheney and Libby strategized again as to how
to beat back Wilson's allegations. They had traveled together, and with thief
families, to the Norfolk Naval Station for the commissioning of the nuclear-
powered Nimitz-class aircraft carrier, the U.S.S. Ronald Reagan.

On the flight home, Cheney pressed Libby to talk to reporters to once again,
hoping to beat back Wilson's allegations and discredit the former diplomat.
Immediately after landing, Libby spoke to then-Time magazine correspondent
Matthew Cooper and confirmed for him that Plame worked for the CIA and had
played a role in sending her husband to Niger. It was regarding that
conversation that Libby told the FBI it was "possible" that Cheney might have
told him to discuss Plame.

On July 2, 2007, President Bush commuted Libby's thirty month prison sentence,
saying he was doing so out of compassion for Libby's family and because he
believed that he believed that the sentence was excessive. The White House
declined to say whether Bush might consider a full pardon for Libby.

In the next few days, it will become known whether Libby will in fact be
pardoned by President Bush in his final days in office.

In the meantime, what the Vice President and the President told the FBI during
their own FBI interviews during the Plame investigation will not be officially
disclosed by the White House. Despite the fact that prosecutor Fitzgerald has
said told Congress that he has no objections to the provision of the reports to
Congress, the Bush administration has refused to follow through.

[ Special thanks to David Neiwart for editing assistance. ]

*


Washington Post --

December 20, 2008

JUDGE ORDERS EXAM FOR DETAINEE
Guantanamo Prisoner Sought Independent Health Evaluation

By Del Quentin Wilber

http://www.washingtonpost.com/wp-dyn/content/
article/2008/12/19/AR2008121903127.html

A federal judge has ordered an independent medical evaluation of a detainee at
the U.S. military prison at Guantanamo Bay, saying he is concerned about the
man's deteriorating health.

It is the first time a federal judge has taken such a step in a fight between
detainees' attorneys and the Justice Department over the mental and physical
health of a handful of prisoners at the facility in Cuba.

The order concerns Ahmed Zaid Salem Zuhair, a Saudi who has been on a hunger
strike since June 2005. Despite force-feeding by military personnel, Zuhair's
weight plummeted from 147 pounds in December 2007 to as little as 111 pounds in
November, court records show.

U.S. District Judge Emmet G. Sullivan said he was troubled by Zuhair's weight
loss and descriptions of his emaciated condition by his attorneys. Sullivan said
he is appointing a medical expert to evaluate Zuhair because he wants to ensure
that the detainee can "meaningfully participate" in his lawsuit challenging his
detention. Zuhair's lawyers say that the detainee does not trust military
doctors and that they need an independent evaluation to better understand his
illnesses.

The Justice Department opposed the request.

"I don't want this man to dwindle down to the point where he is further
damaged," Sullivan said.

Sullivan ordered Justice Department lawyers and Zuhair's attorneys to come up
with a list of doctors who could evaluate the detainee, who was picked up in
Pakistan and has been held at Guantanamo Bay since 2002. He also ordered the
government to turn over Zuhair's medical records to his attorneys.

Lawyers representing Zuhair, 44, said they were pleased by the ruling. "This is
a pretty significant crack in the wall of secrecy at Guantanamo," said Darryl
Li, a student at Yale Law School who is on Zuhair's legal team.

Justice Department lawyers declined to comment after the hearing.

The ruling was not a complete victory for Zuhair. The judge denied other
requests, including one that would have prevented the facility's staff from
restraining him when he is force-fed. His lawyers say he does not need such
restraints, which are painful.

Scores of the 250 detainees at Guantanamo are challenging their detentions in
federal court under a Supreme Court ruling in June that granted them the right
to habeas corpus.

Sullivan's order comes as attorneys for a handful of those detainees, concerned
about their clients' health, are pressing federal judges to order the government
to turn over medical records. The Justice Department has fought the requests,
arguing that federal judges do not have jurisdiction.

Sullivan ordered the government on Dec. 8 to turn over to lawyers medical
records concerning Ramzi Binalshibh, accused of being one of the plotters of the
2001 terrorist attacks.

Last month, U.S. District Judge Richard W. Roberts ordered the government to
give medical records to attorneys for Zayn al-Abidin Muhammed Hussein, better
known as Abu Zubaida, an alleged al-Qaeda member who was subjected to
waterboarding and other harsh interrogation techniques while in CIA custody.

Roberts ordered the release of medical records generated during Zubaida's time
at Guantanamo Bay, where he has been held since September 2006. Zubaida has
complained of repeated seizures and excruciating pain related to an old wound.
In ordering the documents' release, the judge agreed with Zubaida's lawyers, who
argued that they needed the records to help them challenge his detention.

Other detainees have seen different results. In September, U.S. District Judge
Thomas F. Hogan denied a request for medical records from the lawyers of Adnan
Latif, a 28-year-old Yemeni. Hogan ruled he lacked jurisdiction to order the
records produced.

Latif's lawyers are appealing. In court documents and interviews, they contend
that Latif weighs about 100 pounds, has trouble keeping down food and has tried
to commit suicide. One of his attorneys, David Remes, said in an e-mail that he
visited Latif on Dec. 9 and that the detainee was "weak, weeping and barely able
to whisper."

[ Staff researcher Julie Tate contributed to this report. ]

*


Vanity Fair --

December 16, 2008

TORTURED REASONING

George W. Bush defended harsh interrogations by pointing to intelligence
breakthroughs, but a surprising number of counterterrorist officials say that,
apart from being wrong, torture just doesn't work. Delving into two high-profile
cases, the author exposes the tactical costs of prisoner abuse.

by David Rose

http://www.vanityfair.com/magazine/2008/12/torture200812


By the last days of March 2002, more than six months after 9/11, President
George W. Bush's promise "to hunt down and to find those folks who committed
this act" was starting to sound a little hollow. True, Afghanistan had been
invaded and the Taliban toppled from power. But Osama bin Laden had vanished
from the caves of Tora Bora, and none of his key al-Qaeda lieutenants were in
U.S. captivity. Intelligence about what the terrorists might be planning next
was almost nonexistent. "The panic in the executive branch was palpable,"
recalls Mike Scheuer, the former CIA official who set up and ran the agency's
Alec Station, the unit devoted to tracking bin Laden.

Early in the morning of March 28, in the moonlit police-barracks yard in
Faisalabad, Pakistan, hopes were high that this worrisome intelligence deficit
was about to be corrected. Some 300 armed personnel waited in silence: 10 three-
man teams of Americans, drawn equally from the CIA and the FBI, together with
much greater numbers from Pakistan's police force and Inter-services
Intelligence (ISI). In order to maximize their chances of surprise, they planned
to hit 10 addresses simultaneously. One of them, they believed, was a safe house
containing a man whose name had been familiar to U.S. analysts for years: Zayn
al-Abidin Muhammad Hussein, a 30-year-old Saudi Arabian better known as Abu
Zubaydah. "I'd followed him for a decade," Scheuer says. "If there was one guy
you could call a 'hub,' he was it."

The plan called for the police to go in first, followed by the Americans and ISI
men, whose job would be to gather laptops, documents, and other physical
evidence. A few moments before three a.m., the crackle of gunfire erupted. Abu
Zubaydah had been shot and wounded, but was alive and in custody. As those who
had planned it had hoped, his capture was to prove an epochal event -- but in
ways they had not envisaged.


Four months after Abu Zubaydah's capture, two lawyers from the Department of
Justice, John Yoo and Jay Bybee, delivered their notorious memo on torture,
which stated that coercive treatment that fell short of causing suffering
equivalent to the pain of organ failure or death was not legally torture, an
analysis that -- as far as the U.S. government was concerned -- sanctioned the
abusive treatment of detainees at the CIA's secret prisons and at Guantanamo
Bay. But, as Jane Mayer writes in her recent book, The Dark Side (Doubleday),
Abu Zubaydah had been subjected to coercive interrogation techniques well before
that, becoming the first U.S. prisoner in the Global War on Terror to undergo
waterboarding.

The case of Abu Zubaydah is a suitable place to begin answering some pressing
but little-considered questions. Putting aside all legal and ethical issues (not
to mention the P.R. ramifications), does such treatment -- categorized
unhesitatingly by the International Committee of the Red Cross as torture --
actually work, in the sense of providing reliable, actionable intelligence? Is
it superior to other interrogation methods, and if they had the choice, free of
moral qualms or the fear of prosecution, would interrogators use it freely?

President Bush has said it works extremely well, insisting it has been a vital
weapon in America's counterterrorist arsenal. Vice President Dick Cheney and CIA
director Michael Hayden have made similar assertions. In fact, time and again,
Bush has been given opportunities to distance his administration from the use of
coercive methods but has stood steadfastly by their use. His most detailed
exposition came in a White House announcement on September 6, 2006, when he said
such tactics had led to the capture of top al-Qaeda operatives and had thwarted
a number of planned attacks, including plots to strike U.S. Marines in Djibouti,
fly planes into office towers in London, and detonate a radioactive "dirty" bomb
in America. "Were it not for this program, our intelligence community believes
that al-Qaeda and its allies would have succeeded in launching another attack
against the American homeland. By giving us information about terrorist plans we
could not get anywhere else, this program has saved innocent lives."

Really? In researching this article, I spoke to numerous counterterrorist
officials from agencies on both sides of the Atlantic. Their conclusion is
unanimous: not only have coercive methods failed to generate significant and
actionable intelligence, they have also caused the squandering of resources on a
massive scale through false leads, chimerical plots, and unnecessary safety
alerts -- with Abu Zubaydah's case one of the most glaring examples.

Here, they say, far from exposing a deadly plot, all torture did was lead to
more torture of his supposed accomplices while also providing some misleading
"information" that boosted the administration's argument for invading Iraq.

Everything that was to go wrong with the interrogation of Abu Zubaydah flowed
from a first, fatal misjudgment. Although his name had long been familiar to the
CIA, that did not make him an operational terrorist planner or, as Bush put it
in September 2006, "a senior terrorist leader and a trusted associate of Osama
bin Laden." Instead, Scheuer says, he was "the main cog in the way they
organized," a point of contact for Islamists from many parts of the globe
seeking combat training in the Afghan camps. However, only a tiny percentage
would ever be tapped for recruitment by al-Qaeda.

According to Scheuer, Abu Zubaydah "never swore bayat [al-Qaeda's oath of
allegiance] to bin Laden," and the enemy he focused on was Israel, not the U.S.
After Abu Zubaydah's capture, Dan Coleman, an FBI counterterrorist veteran, had
the job of combing through Abu Zubaydah's journals and other documents seized
from his Faisalabad safe house. He confirms Scheuer's assessment. "Abu Zubaydah
was like a receptionist, like the guy at the front desk here," says Coleman,
gesturing toward the desk clerk in the lobby of the Virginia hotel where we have
met. "He takes their papers, he sends them out. It's an important position, but
he's not recruiting or planning." It was also significant that he was not well
versed in al-Qaeda's tight internal-security methods: "That was why his name had
been cropping up for years."

Declassified reports of legal interviews with Abu Zubaydah at his current
residence, Guantanamo Bay, suggest that he lacked the capacity to do much more.
In the early 1990s, fighting in the Afghan civil war that followed the Soviet
withdrawal, he was injured so badly that he could not speak for almost two
years. "I tried to become al-Qaeda," Abu Zubaydah told his lawyer, Brent Mickum,
"but they said, 'No, you are illiterate and can't even remember how to shoot.'"
Coleman found Abu Zubaydah's diary to be startlingly useless. "There's nothing
in there that refers to anything outside his head, not even when he saw
something on the news, not about any al-Qaeda attack, not even 9/11," he says.
"All it does is reveal someone in torment. Based on what I saw of his
personality, he could not be what they say he was."

In May 2008, a report by Glenn Fine, the Department of Justice inspector
general, stated that, as he recovered in the hospital from the bullet wounds
sustained when he was captured, Abu Zubaydah began to cooperate with two FBI
agents. It was a promising start, but "within a few days," wrote Fine, he was
handed over to the CIA, whose agents soon reported that he was providing only
"throw-away information" and that, according to Fine, they "needed to diminish
his capacity to resist." His new interrogators continued to question him by very
different means at so-called black-site prisons in Thailand and Eastern Europe.
They were determined to prove he was much more important than the innkeeper of a
safe house.

Bush discussed Abu Zubaydah's treatment in his 2006 announcement. "As his
questioning proceeded, it became clear that he had received training on how to
resist interrogation. And so the CIA used an alternative set of procedures....
The procedures were tough, and they were safe, and lawful, and necessary." Soon,
Bush went on, Abu Zubaydah "began to provide information on key al-Qaeda
operatives, including information that helped us find and capture more of those
responsible for the attacks on September 11." Among them, Bush said, were Khalid
Sheikh Mohammed, the alleged 9/11 mastermind, and his fellow conspirator Ramzi
Binalshibh. In fact, Binalshibh was not arrested for another six months and
K.S.M. not for another year. In K.S.M.'s case, the lead came from an informant
motivated by a $25 million reward.

As for K.S.M. himself, who (as Jane Mayer writes) was waterboarded, reportedly
hung for hours on end from his wrists, beaten, and subjected to other agonies
for weeks, Bush said he provided "many details of other plots to kill innocent
Americans." K.S.M. was certainly knowledgeable. It would be surprising if he
gave up nothing of value. But according to a former senior CIA official, who
read all the interrogation reports on K.S.M., "90 percent of it was total
fucking bullshit." A former Pentagon analyst adds: "K.S.M. produced no
actionable intelligence. He was trying to tell us how stupid we were."


It is, perhaps, a little late, more than six years after detainees began to be
interrogated at Guantanamo Bay and at the CIA's black-site prisons, to be asking
whether torture works. Yet according to numerous CIA and FBI officials
interviewed for this article, at the time this question really mattered, in the
months after 9/11, no one seriously addressed it. Those who advocated a policy
that would lead America to deploy methods it had always previously abhorred
simply assumed they would be worthwhile. Non-governmental advocates of torture,
such as the Harvard legal scholar Alan Dershowitz, have emphasized the "ticking
bomb" scenario: the hypothetical circumstance when only torture will make the
captured terrorist reveal where he -- or his colleagues -- has planted the timed
nuclear device. Inside the CIA, says a retired senior officer who was privy to
the agency's internal debate, there was hardly any argument about the value of
coercive methods: "Nobody in intelligence believes in the ticking bomb. It's
just a way of framing the debate for public consumption. That is not an
intelligence reality."

There is, alas, no shortage of evidence from earlier times that torture produces
bad intelligence. "It is incredible what people say under the compulsion of
torture," wrote the German Jesuit Friedrich von Spee in 1631, "and how many lies
they will tell about themselves and about others; in the end, whatever the
torturers want to be true, is true."

The unreliability of intelligence acquired by torture was taken as a given in
the early years of the CIA, whose 1963 kubark interrogation manual stated:
"Intense pain is quite likely to produce false confessions, concocted as a means
of escaping from distress. A time-consuming delay results, while investigation
is conducted and the admissions are proven untrue. During this respite the
interrogatee can pull himself together. He may even use the time to think up
new, more complex 'admissions' that take still longer to disprove."

A 1957 study by Albert Biderman, an Air Force sociologist, described how
brainwashing had been achieved by depriving prisoners of sleep, exposing them to
cold, and forcing them into agonizing "stress positions" for long periods. In
July 2008, The New York Times reported that Biderman's work formed the basis of
a 2002 interrogators' training class at Guantanamo Bay. That the methods it
described had once been used to generate Communist propaganda had apparently
been forgotten.

Experience derived from 1990s terrorism cases also casts doubt on torture's
value. For example, in March 1993, FBI agents flew to Cairo to take charge of an
Egyptian named Mahmud Abouhalima, who would be convicted for having bombed the
World Trade Center a month earlier. Abouhalima had already been tortured by
Egyptian intelligence agents for 10 days, and had the wounds to prove it. As
U.S. investigators should have swiftly realized, his statements in Egypt were
worthless, among them claims that the bombing was sponsored by Iranian
businessmen, although, apparently, their sworn enemy, Iraq, had also played a
part.

In the fall of 2001, publications such as Newsweek, The Washington Post, and The
Wall Street Journal ran articles suggesting torture might be essential to
prevent further attacks. All cited the case of Abdul Hakim Murad, a Pakistani
terrorist in possession of explosives arrested in the Philippines in January
1995, who was later convicted in New York. According to Dershowitz, his coerced
confessions about the "Bojinka" plot, to blow up 11 airliners over the Pacific,
supported the claim that "torture sometimes does work and can sometimes prevent
major disasters."

Murad was certainly tortured. At his trial in 1996, transcripts of his
interrogation by the Philippines National Police contained pauses and gasps,
which his lawyer claimed were the result of his enduring a procedure much like
waterboarding. But did it really pay intelligence dividends? With Murad's
arrest, the plot was blown. As Professor Stephanie Athey of Lasell College noted
in a 2007 article, Dershowitz's claim that the torture prevented a major
disaster is false. A computer seized in Murad's apartment held details of the
flights he planned to attack, detonator-timer settings, and photos of some of
his co-conspirators, together with their aliases, so enabling their subsequent
arrest. It was this, Mike Scheuer says, not Murad's interrogation, that provided
more useful intelligence.

Equally significant was what Murad didn't give up under torture. Bojinka was
partly the brainchild of none other than Khalid Sheikh Mohammed, later alleged
to be the chief planner of 9/11. He had been living in the Philippines, but
apparently Murad said nothing that might have helped his interrogators find him:
he was not captured until 2003.


On April 10, 2002, 13 days after Abu Zubaydah's capture, in Faisalabad, a
23-year-old Ethiopian named Binyam Mohamed was detained at the airport in
Karachi, Pakistan, attempting to board a flight to London, where he had been
living for seven years. Information about the case drawn up by the British
security service M.I.5, and obtained by Vanity Fair, suggests that if Mohamed
was a terrorist his tradecraft was unimpressive: he was stopped because he was
using a passport that obviously belonged to someone else, his friend Fouad
Zouaoui -- the second time that Mohamed had tried to leave Pakistan on Zouaoui's
papers. He also had a heroin problem.

In notes by his attorney, Clive Stafford Smith, made from days of interviews
with him at Guantanamo, the picture that emerges is one more of naivete than
wickedness. He said he went to Pakistan, and then Afghanistan, in June 2001,
partly because he wanted to kick his drug habit (arguably, the world's biggest
source of opium was not an ideal place) and partly to ascertain whether Taliban-
controlled Afghanistan was a "good Islamic country." In any event, there is no
dispute that he fled across the border into Pakistan as soon as he could after
9/11.

The first 10 days of Mohamed's detention, at Landi prison, near Karachi, were
not, on his account, comfortable, but he was not tortured or abused. But after
he was moved to a Pakistani security jail, around April 20, he began to be
abused. A few days later, when he was questioned for the first time by U.S.
agents, his treatment worsened dramatically.

"They seemed to think I was some kind of top al-Qaeda person," Mohamed said.
"How? It was less than six months since I converted to Islam, and before that I
was using drugs!" After the Americans' visit, Mohamed said, he was hung by his
wrists for hours on end, so that his feet barely touched the ground. Suspended
thus, he said, he was beaten regularly by Pakistani guards. He said he was also
threatened with a gun.

U.S. interest in Mohamed appears to have been triggered by an unlucky
coincidence. It so happened that in the period in early April before Abu
Zubaydah's torture began, when he was starting to cooperate with the FBI, he
gave up the name of one of those who had passed through his safe house en route
to an Afghan camp -- that of Jose Padilla, a former Chicago gang member. "He
probably remembered Padilla because he was a U.S. citizen, and that was rare,"
says the former FBI al-Qaeda specialist Dan Coleman.

Mohamed has maintained that if he had ever met Padilla it would have been a
fleeting, chance encounter, perhaps when they both fled Afghanistan, and he has
no memory of it. But the first time Mohamed tried to fly to London via Zurich,
around April 4, Padilla was booked on the same flight. Their ultimate
destinations were different: Padilla planned to spend time in Egypt before
returning to Chicago. But the fact they were starting their journeys together,
says an FBI agent who attended official briefings about the case, convinced
American agencies that they shared some joint purpose. "It was simply that --
flight coincidence," he says. "I never saw any evidence that Padilla and Mohamed
met."

By late April, Abu Zubaydah was being tortured and giving up details of a plot
that sounded truly terrifying: a plan for Padilla to build and detonate a
radioactive dirty bomb in America. But even at the outset, some who worked in
U.S. counterterrorism were skeptical. "If there is a dirty bomb, you'd better
take it seriously, because as bad as 9/11 was, a dirty bomb would be a hundred
times worse," says the former FBI agent who attended the case briefings. "It was
clear that Padilla had some form of training, that he was a sympathizer. But to
claim he really had a plan to do a dirty bomb? That's tough. You show me he knew
how to go and get it. That he knew how to make it. They never had that."

Convinced that the dirty-bomb plot was real, those interrogating Binyam Mohamed
assumed that he must be part of it, and if he could not fill in missing details,
he must have been covering up. Agents such as the FBI's Jack Cloonan, who spent
years fighting al-Qaeda before his retirement in 2002, had learned that it had
an impressive "quality-control system," which meant "they looked for people with
the right makeup, they did their own due diligence, and they would not pick weak
guys" -- not, typically, heroin addicts. But no one was listening to these
agents.

M.I.5 seems to have shared the CIA's groupthink. Sources in London say that its
agents also assumed that anything Mohamed said to try to defend himself must be
a lie. One admission he did make was that he had seen a Web site with
instructions on how to make a hydrogen bomb, but he was apparently claiming it
was a joke. The intelligence agencies believed this was a smoking gun,
notwithstanding Mohamed's bizarre statement that the instructions included
mixing bleach with uranium-238 in a bucket and rotating it around one's head for
45 minutes. Neither the British nor the Americans thought Mohamed's claim that
the Web site was a joke was credible: his "confession" to reading instructions
about building nuclear weapons on the Internet was cited in Mohamed's Guantanamo
charge sheet. Yet it was a joke: such a Web site, with instructions about how to
refine bomb-grade uranium with bleach and a bucket, has been doing the rounds on
the World Wide Web since at least 1994. In 2005, the conservative columnist
Michelle Malkin cited it in her blog as evidence of al-Qaeda's deadly
intentions. She was swiftly disabused by readers, who, unlike the CIA and M.I.5,
immediately recognized it as satire.

But even M.I.5 couldn't help but notice "glaring inconsistencies" among the
different accounts of the plot being given by those getting interrogated. And
instead of asking whether the plot was real, the investigators seem to have
assumed that the different accounts of those being interrogated were merely an
attempt to protect al-Qaeda operations.

Clive Stafford Smith believes that the weakness of the dirty-bomb charge against
Padilla may well explain what happened to Binyam Mohamed: "Maybe what they were
trying to do was turn him into a prosecution witness." After all, he had already
confessed in Pakistan, under torture that had been, in comparison with what was
to come, relatively mild. But on July 21, 2002, as the plane's flight log later
confirmed, he was flown aboard a Gulfstream V jet chartered by the CIA to Rabat,
in Morocco. There he was to spend the next 18 months.

With the help of Stafford Smith, he later assembled a diary describing his
treatment there. Amid numerous beatings in Rabat, Mohamed wrote, "They'd ask me
a question. I'd say one thing. They'd say it was a lie. I'd say another. They'd
say it was a lie. I could not work out what they wanted to hear." He also said
the Moroccans repeatedly cut his chest and genitals with a razor. Finally he was
subjected to further harsh treatment in the "Dark Prison" near Kabul,
Afghanistan, after being spirited away on another CIA flight in January 2004.

After another nine months, he was brought to Guantanamo, where he remains. He
filed a habeas corpus lawsuit in federal court in the District of Columbia, a
claim that there was no credible reason for his continued detention, and in its
attempt to defend this, the administration in October 2008 dropped all mention
of the dirty-bomb plot. In Guantanamo's parallel quasi-legal world of military
commissions, where the rules make it much harder to exclude evidence derived
from torture, the Pentagon in May 2008 issued a charge sheet against Mohamed. It
said that having trained in various al-Qaeda camps and taken instruction from
bin Laden, Mohamed "reviewed technical information concerning the construction
of an improvised radioactive bomb" with K.S.M. and decided with Padilla to
detonate one in America.


In October, the charges were withdrawn, after the prosecutor, Lieutenant Colonel
Darrel Vandeveld, resigned. Later he told the BBC he had concerns at the
repeated suppression of evidence that could prove prisoners' innocence.
Meanwhile, as of December 2008, Mohamed's lawyers were fighting separate court
cases to force the U.S. government in Washington and the British government in
London to disclose all the information they have about Mohamed's treatment.
(Coincidentally, my sister, Dinah Rose, Q.C., is representing Mohamed in the
London case.) Stafford Smith is bound by Draconian restrictions that prevent him
from offering any but the blandest comments about the evidence in his client's
case. He says, "I know of no evidence against him other than his own
confessions, all of which are the bitter fruit of his abuse."

"There was no dirty-bomb plot. I'm sure it was just Abu Zubaydah trying to get
them excited," says the FBI's Dan Coleman. "There's never been any corroboration
except the confessions of Binyam Mohamed under torture. No one was willing to
take their time." But, in the words of the former CIA official Mike Scheuer,
"That dirty-bomb business put the fear of God into these people in the
administration." As a result, he says, "they may well have sent Binyam Mohamed
somewhere where the authorities would do things we wouldn't -- or couldn't."


On June 10, 2002, then attorney general John Ashcroft interrupted a visit to
Moscow to speak to reporters: "I am pleased to announce today a significant step
forward in the war on terrorism. We have captured a known terrorist who was
exploring a plan to build and explode a radiological dispersion device, or
'dirty bomb,' in the United States." He meant Jose Padilla, who had been
arrested as he flew into Chicago on May 8. The president, Ashcroft said, had
designated Padilla an "enemy combatant," and he had been removed from civilian
custody to a navy brig. In due course, Ashcroft said, he would be tried by a
military commission.

"Let me be clear: we know from multiple independent and corroborating sources
that Abdullah Al Mujahir [Padilla's nom de guerre] was closely associated with
al-Qaeda and that ... he was involved in planning future terrorist attacks on
innocent American civilians in the United States," Ashcroft said. Had his dirty
bomb gone off, it could have caused "mass death and injury."

The shakiness of Ashcroft's "multiple independent and corroborating sources"
claim was demonstrated by an affidavit from an FBI agent, Joe Ennis, in support
of Padilla's detention. Referring to Binyam Mohamed as "Subject-1," it said that
his "wife" had told law-enforcement authorities that he "would often become
emotional and cry when he discussed his willingness to die for his God."
Strangely enough, Mohamed was and remains unmarried.

Mohamed, the affidavit said, "has not been completely candid about his
association with Al Qaeda, and his own terrorist activities," and was trying to
"mislead or confuse U.S. law enforcement." But it was clear that after weeks of
abuse he had started to crack. According to Ennis, he had already told his
interrogators that he and Padilla had "researched the construction of a uranium-
enhanced explosive device"; that Padilla had been to meetings with al-Qaeda
officials; and that he believed Padilla had been ordered to return to America.

In the brig, Padilla's attorneys claimed, he too was tortured. He was deprived
of all contact with the outside world for two and a half years, and, according
to one court filing, "He would be shackled and manacled, with a belly chain, for
hours in his cell. Noxious fumes would be introduced to his room causing his
eyes and nose to run. The temperature of his cell would be manipulated, making
the cell extremely cold for long stretches of time." Chained in agonizing
"stress positions" repeatedly, he was also allegedly "threatened with imminent
execution.... Often he had to endure multiple interrogators who would scream,
shake, and otherwise assault [him]."

The government did not deny these assertions, only the claim that they amounted
to torture. Donna Newman, Padilla's attorney before he was taken to the brig,
says that afterward "he was not the same person. Beforehand, he was engaged in
his case; he asked pertinent questions. When I saw him again, he hardly said a
word. He had no interest in what was happening, even though his case was nearing
the Supreme Court."

Under this pressure, Padilla produced ever more elaborate confessions. Former
deputy attorney general James Comey said in June 2004 that Padilla spoke of
discussing the dirty bomb with Khalid Sheikh Mohammed, of an instruction from
K.S.M. to blow up apartments by filling them with gas and igniting it, and of a
dinner party with Binyam Mohamed, K.S.M., and al-Qaeda bigwigs the night before
he left Pakistan.

Very senior officials had a lot invested in Padilla. But in November 2005, three
days before the Justice Department was to file a brief before the Supreme Court
in response to his lawyers' claim that his treatment was unconstitutional, the
administration returned him to civilian custody. With all mention of the dirty-
bomb plot deleted, he stood trial in Florida on far less serious charges of
conspiracy to murder, maim, and kidnap, and providing material support to
terrorist organizations, and in January 2008 he was sentenced to 17 years and
four months in prison. "The dirty-bomb plot was simply not credible," Jack
Cloonan says. "The government would never have given up that case if there was
any hint of credibility to it. Padilla didn't stand trial for it, because there
was no evidence to support it."


On March 27, 2007, Abu Zubaydah was able to make a rare public statement, at a
"Combatant Status-Review Tribunal" at Guantanamo -- a military hearing convened
to determine whether he should continue to be detained. Everything he said about
the details of his treatment was redacted from the unclassified record. But a
few relevant remarks remain: "I was nearly before half die plus [because] what
they do [to] torture me. There I was not afraid from die because I do believe I
will be shahid [martyr], but as God make me as a human and I weak, so they say
yes, I say okay, I do I do, but leave me. They say no, we don't want to. You to
admit you do this, we want you to give us more information ... they want what's
after more information about more operations, so I can't. They keep torturing
me."

The tribunal president, a colonel whose name is redacted, asked him: "So I
understand that during this treatment, you said things to make them stop and
then those statements were actually untrue, is that correct?" Abu Zubaydah
replied: "Yes."

Some of those statements, say two senior intelligence analysts who worked on
them at the time, concerned the issue that in the spring of 2002 interested the
Bush administration more than almost any other -- the supposed operational
relationship between al-Qaeda and Iraq. Given his true position in the jihadist
hierarchy, Abu Zubaydah "would not have known that if it was true," says
Coleman. "But you can lead people down a course and make them say anything."

Some of what he did say was leaked by the administration: for example, the claim
that bin Laden and his ally Abu Musab al-Zarqawi were working directly with
Saddam Hussein to destabilize the autonomous Kurdish region in northern Iraq.
There was much more, says the analyst who worked at the Pentagon: "I first saw
the reports soon after Abu Zubaydah's capture. There was a lot of stuff about
the nuts and bolts of al-Qaeda's supposed relationship with the Iraqi
Intelligence Service. The intelligence community was lapping this up, and so was
the administration, obviously. Abu Zubaydah was saying Iraq and al-Qaeda had an
operational relationship. It was everything the administration hoped it would
be."

Within the administration, Abu Zubaydah's interrogation was "an important
chapter," the second analyst says: overall, his interrogation "product" was
deemed to be more significant than the claims made by Ibn al-Shaykh al-Libi,
another al-Qaeda captive, who in early 2002 was tortured in Egypt at the CIA's
behest. After all, Abu Zubaydah was being interviewed by Americans. Like the
former Pentagon official, this official had no idea that Abu Zubaydah had been
tortured.

"As soon as I learned that the reports had come from torture, once my anger had
subsided I understood the damage it had done," the Pentagon analyst says. "I was
so angry, knowing that the higher-ups in the administration knew he was
tortured, and that the information he was giving up was tainted by the torture,
and that it became one reason to attack Iraq."

One result of Abu Zubaydah's torture was that the FBI's assistant director for
counterterrorism, Pasquale D'Amuro, persuaded Director Robert Mueller that the
bureau should play no part in future CIA interrogations that used extreme
techniques forbidden by the FBI The Justice Department's Glenn Fine indicated in
a statement before the U.S. Senate that the main reason was that the agency's
techniques would "not be effective in obtaining accurate information."


If torture doesn't work, what does? The evidence suggests that when the Bush
administration decided to ignore many of America's most experienced
counterterrorist agents and go for torture in 2001 and 2002, it shut down rich
sources of intelligence. In the biggest terrorist case of the 1990s, the
bombings of the U.S. Embassies in Kenya and Tanzania in 1998 that killed more
than 220 people, the FBI's Cloonan and his colleagues were able to persuade
three of the main conspirators not only to talk to them but also to give
prosecution testimony in court. Here Morocco, the U.S. ally where Binyam Mohamed
was sent to be tortured in 2002, provided assistance of a very different order.
Eighteen months after the attacks, Cloonan traced L'Houssaine Kherchtou, also
known as Joe the Moroccan, an al-Qaeda operative who had played a key role, to
his hiding place, in Sudan. The Moroccans concocted a story to lure him home,
and when he arrived in Rabat he was arrested.

Cloonan says, "We all went to a beautiful safe house outside of town, with
gazelles bouncing around in the grounds and three solid meals fit for a king
each day. We all sat on sofas in a big room -- me, Ali Soufan [an FBI
colleague], Pat Fitzgerald [the U.S. attorney then in charge of a special
counterterrorist section in New York], a CIA guy, and two Moroccan colonels. The
Moroccans said he'd never talk. He never shut up for 10 days." Cloonan had done
his homework: "His wife needed money for medical treatment in Khartoum, and
al-Qaeda had failed to provide it." That gave Cloonan his "in."

The intelligence Kherchtou provided, at a time when U.S. knowledge about
al-Qaeda was still perfunctory, was invaluable. "He told us about a lot of
things," says Cloonan. "We learned how they recruited people, their front
organizations, how they used NGOs, false passports, what they thought about
kidnapping, how they developed targets, did their surveillance, a day in the
life of Osama bin Laden, what weapons they used, what vehicles they drove, who
was the principal liaison with the Sudanese government, that there was a
relationship between al-Qaeda and Hezbollah, how they did their training
exercises, their finances, and their membership."

Finally Fitzgerald offered Kherchtou a deal: if he came to New York, pleaded
guilty, and testified against the bombers, Fitzgerald would ask the judge to
treat him leniently. At first, it looked as if he was going to turn it down.
Then, Cloonan says, "I said, 'Joe, you understand English, so I'd like you to go
out and pray on this with your two Moroccan brothers.' I thought Fitzy was going
to give birth. Joe went out and prayed and came back and said yes." Kherchtou is
now in the federal witness-protection program. Thanks in part to his testimony,
four of his onetime associates are serving life.


To reach a final calculus of the Bush administration's use of torture will take
years. It will require access to a large body of material that for now remains
classified, and the weighing not just of information gained against false or
missed leads but of the wider consequences: of the damage done to America's
influence with its friends, and of the encouragement provided to its enemies.
Even harder to quantify is the damage done to institutions and their morale,
especially the CIA

"We were done a tremendous disservice by the administration," one official says.
"We had no background in this; it's not something we do. They stuck us with a
totally unwelcome job and left us hanging out to dry. I'm worried that the next
administration is going to prosecute the guys who got involved, and there won't
be any presidential pardons at the end of it. It would be O.K. if it were John
Ashcroft or Alberto Gonzales. But it won't be. It'll be some poor G.S.-13 who
was just trying to do his job."

At the FBI, says a seasoned counterterrorist agent, following false leads
generated through torture has caused waste and exhaustion. "At least 30 percent
of the FBI's time, maybe 50 percent, in counterterrorism has been spent chasing
leads that were bullshit. There are 'lead squads' in every office trying to
filter them. But that's ineffective, because there's always that 'What if?'
syndrome. I remember a claim that there was a plot to poison candy bought in
bulk from Costco. You follow it because someone wants to cover himself. It has a
chilling effect. You get burned out, you get jaded. And you think, Why am I
chasing all this stuff that isn't true? That leads to a greater problem -- that
you'll miss the one that is true. The job is 24-7 anyway. It's not like a bank
job. But torture has made it harder."

Several of those I interviewed point out the dearth of specific claims the
administration has proffered. "The proponents of torture say, 'Look at the body
of information that has been obtained by these methods.' But if K.S.M. and Abu
Zubaydah did give up stuff, we would have heard the details," says Cloonan.
"What we got was pabulum." A former CIA officer adds: "Why can't they say what
the good stuff from Abu Zubaydah or K.S.M. is? It's not as if this is sensitive
material from a secret, vulnerable source. You're not blowing your source but
validating your program. They say they can't do this, even though five or six
years have passed, because it's a 'continuing operation.' But has it really
taken so long to check it all out?"

Officials who analyzed Abu Zubaydah's interrogation reports say that the reports
were afforded the highest value within the Bush administration not because of
the many American lives they were going to save but because they could be cited
repeatedly against those who doubted the wisdom of ousting Saddam by force.

"We didn't know he'd been waterboarded and tortured when we did that analysis,
and the reports were marked as credible as they could be," the former Pentagon
analyst tells me. "The White House knew he'd been tortured. I didn't, though I
was supposed to be evaluating that intelligence." To draw conclusions about the
importance of what Abu Zubaydah said without knowing this crucial piece of the
background nullified the value of his work. "It seems to me they were using
torture to achieve a political objective. I cannot believe that the president
and vice president did not know who was being waterboarded, and what was being
given up."

One of the most specific claims Bush made in 2006 was that secret black-site CIA
interrogations "helped foil a plot to hijack passenger planes and fly them into
Heathrow [airport] and London's Canary Wharf." Could that be true?

One man who knows is Peter Clarke, head of Scotland Yard's Anti-terrorist Branch
from the spring of 2002 until May 2008, and as such the U.K.'s chief
counterterrorist official, who succeeded in stopping several jihadist attacks
that were in advanced stages of planning. Clarke, who has not publicly discussed
this issue before, says it is possible that al-Qaeda had considered some project
along the lines suggested by Bush, but if so it was nowhere near fruition. "It
wasn't at an advanced stage in the sense that there were people here in the U.K.
doing it. If they had been, I'd have arrested them."

Perhaps the most dangerous of the plots disrupted on Clarke's watch was through
Operation Crevice, the 2004 bust of a gang of seven who had 1.3 tons of homemade
explosive material, with which they had intended to blow up targets including a
nightclub and a shopping mall. But the lead that led to Crevice came not from
torture, Clarke says, but an electronic intercept. He says he can think of only
one arrest made by his team that could be said to have been partly the result of
CIA interrogations -- that of Dhiren Barot, sentenced to life, in 2006, for
conspiracy to murder stemming from his plan to attack a range of British
targets. But even here, the original lead, reportedly given up by K.S.M., was
vague. "All we had was a nom de guerre, Esa al-Hindi, and the claim that he was
a serious player and a Brit," Clarke says. "We had no idea who he was. It took
weeks and months of painstaking work to identify and find him."

In an interview in London in April 2008, I remind FBI director Robert Mueller of
the attacks planned against targets on American soil since 9/11 that his agents
have disrupted: for example, a plot to kill soldiers at Fort Dix, New Jersey,
and another to wreak mayhem at army recruiting centers and synagogues in and
around Torrance, California. These and other homegrown conspiracies were foiled
by regular police work. The FBI learned of the Fort Dix plot from an informant
at a local mosque, while the Torrance cell was rounded up when cops probed the
backgrounds of two of its members after they allegedly robbed a local gas
station.

I ask Mueller: So far as he is aware, have any attacks on America been disrupted
thanks to intelligence obtained through what the administration still calls
"enhanced techniques"?

"I'm really reluctant to answer that," Mueller says. He pauses, looks at an
aide, and then says quietly, declining to elaborate: "I don't believe that has
been the case."

[ David Rose is a Vanity Fair contributing editor. ]

*


ABC News --

December 16, 2008

TRANSCRIPT: CHENEY DEFENDS HARD LINE TACTICS

Jonathan Karl interview with VP Cheney

http://abcnews.go.com/WN/story?id=6464919&page=1

[ The following is a transcript from ABC News' Jonathan Karl's exclusive
interview with Vice President Dick Cheney on December 15, 2008 in the Executive
Office Building. ]

JONATHAN KARL: Mr. Vice President, there has not been a terrorist attack in the
United States in more than seven years. How important have your administration's
policies on surveillance, interrogation and detention been in protecting the
homeland?

VICE PRESIDENT CHENEY: Well, I think they've been crucial, Jonathan. I think
that anybody who'd looked at the situation the morning after the 9/11 attack
would never have bet that we'd been able to go this long without another attack.

We've been able to defeat or disrupt all further attempts to strike the
homeland. It's enormously important. I think those programs were crucial. The
president made some very tough decisions, and we had some very able and talented
people involved in the military and our intelligence services, making certain
that we were able to keep the country safe.

KARL: But you've heard leaders, the incoming Congress, saying that this policy
has basically been torture and illegal wiretapping, and that they want to undo,
basically, the central tenets of your anti-terrorism policy.

CHENEY: They're wrong. On the question of terrorist surveillance, this was
always a policy to intercept communications between terrorists or known
terrorists, or so-called "dirty numbers," and folks inside the United States to
capture those international communications.

It's worked. It's been successful. It's now embodied in the FISA statute that we
passed last year -- and that Barack Obama voted for, which I think was a good
decision on his part. It's a very, very important capability. It is legal. It
was legal from the very beginning. It is constitutional. To claim that it isn't,
I think is just wrong.

On the question of so-called torture, we don't do torture. We never have. It's
not something that this administration subscribes to. Again, we proceeded very
cautiously. We checked. We had the Justice Department issue the requisite
opinions in order to know where the bright lines were that you could not cross.

The professionals involved in that program were very, very cautious, very
careful -- wouldn't do anything without making certain it was authorized and
that it was legal. And any suggestion to the contrary is just wrong. Did it
produce the desired results? I think it did.

I think, for example, Khalid Sheikh Mohammed, who was the number three man in al
Qaeda, the man who planned the attacks of 9/11, provided us with a wealth of
information. There was a period of time there, three or four years ago, when
about half of everything we knew about al Qaeda came from that one source. So,
it's been a remarkably successful effort. I think the results speak for
themselves.

And I think those who allege that we've been involved in torture, or that
somehow we violated the Constitution or laws with the terrorist surveillance
program, simply don't know what they're talking about.

KARL: Did you authorize the tactics that were used against Khalid Sheikh
Mohammed?

CHENEY: I was aware of the program, certainly, and involved in helping get the
process cleared, as the agency in effect came in and wanted to know what they
could and couldn't do. And they talked to me, as well as others, to explain what
they wanted to do. And I supported it.

KARL: In hindsight, do you think any of those tactics that were used against
Khalid Sheikh Mohammed and others went too far?

CHENEY: I don't.

KARL: What is your advice to President-elect Obama then on this? Because he's
been quite critical. And he might have supported...

CHENEY: He has.

KARL: ... FISA. But President-elect Obama has been very critical of the
counterterrorism policies of this administration.

CHENEY: Well, counterterrorism policy's designed to defeat the terrorists. It
turns on intelligence. You can't do anything without collecting first-rate
intelligence. And that's what these programs are all about.

I would argue that, for the new administration, how they deal with these issues
are going to be very important, because it's going to have a direct impact on
whether or not they retain the tools that have been so essential and defending
the nation for the last seven-and-a-half years, or whether they give them up.

I think it's vital that they sit down and -- which I believe they're doing --
and look at the specific threat that's out there, to understand these programs
and how they operate, and see the extent to which we were very cautious in terms
of how we put them together, and then make a decision based on that with respect
to whether or not they're going to continue. They shouldn't just fall back on
campaign rhetoric to make these very fundamental decisions about the safety of
the nation.

KARL: And what if he does fall back on campaign rhetoric and rolls back those
policies?

CHENEY: Well...

KARL: What's the danger?

CHENEY: ... I think that would be -- I think that would be very unfortunate.

KARL: And on KSM, one of those tactics, of course, widely reported was
waterboarding. And that seems to be a tactic we no longer use. Even that you
think was appropriate?

CHENEY: I do.

KARL: More than two years ago, President Bush said that he was -- wanted to
close down Guantanamo Bay. Why has that not happened?

CHENEY: It's very hard to do. Guantanamo has been the repository, if you will,
of hundreds of terrorists, or suspected terrorists, that we've captured since
9/11. They -- many of them, hundreds -- have been released back to their home
countries. What we have left is the hard core.

Their cases are reviewed on an annual basis to see whether or not they're still
a threat, whether or not they're still intelligence value in terms of continuing
to hold them.

But -- and we're down now to some 200 being held at Guantanamo. But that
includes the core group, the really high-value targets like Khalid Sheikh
Mohammed. Now, the question: If you're going to close Guantanamo, what are you
going to do with those prisoners?

One suggestion is, well, we bring them to the United States. Well, I don't know
very many congressmen, for example, who are eager to have 200 al Qaeda
terrorists deposited in their district. It's a complex and difficult problem. If
you bring them onshore into the United States, they automatically acquire a
certain legal rights and responsibilities that the government would then have,
that they don't as long as they're at Guantanamo. And that's an important
consideration.

These are not American citizens. They are not subject, nor do they have the same
rights that an American citizen does vis-a-vis the government. But they are well
treated. They also have the opportunity, and the process has started now, to be
heard before a military commission with judgment, fair and honest judgment made
about their guilt or innocence, to be represented by counsel provided through
that process.

So, they -- I don't know any other nation in the world that would do what we've
done in terms of taking care of people who are avowed enemies, and many of whom
still swear up and down that their only objective is to kill more Americans.

KARL: So, when do you think we'll be at a point where Guantanamo could be
responsibly shut down?

CHENEY: Well, I think that that would come with the end of the war on terror.

KARL: When's that going to be?

CHENEY: Well, nobody knows. Nobody can specify that. Now, in previous wars,
we've always exercised the right to capture the enemy and then hold them till
the end of the conflict. That's what we did in World War II with, you know,
thousands, hundreds of thousands of German prisoners. The same basic principle
ought to apply here in terms of our right to capture the enemy and hold them.

As I say, the other option is to turn them over to somebody else. A lot of them,
nobody wants. I mean, there's a great resistance sometimes in the home countries
to taking these people back into their own territory.

And it's not a law -- it's not a traditional law enforcement problem. I mean,
one of the things that happened on 9/11 was, we went from thinking about a
terrorist attack as a law enforcement problem where you would prosecute an
individual, to rather being a strategic threat to the United States where we
need to use all of our capabilities to be able to defeat the enemy.

And these folks are, in fact, unlawful combatants, adversaries of the United
States, members of al Qaeda. And I think that's true for most of them there. As
I say, there's a regular, annual review of each of their cases to make certain
that we're still justified in holding them. And if not, to send them back to
their home country, if they'll have them.

KARL: But basically, it sounds like you're talking about Guantanamo being a --
it sounds like you're saying Guantanamo Bay will be open indefinitely.

CHENEY: Well, a lot of people, including the president, expressed the view that
they'd like to close Guantanamo. I think everybody can say we wished there were
no necessity for Guantanamo. But you have to be able to answer these other
questions before you can do that responsibly. And that includes, what are you
going to do with the prisoners held in Guantanamo? And nobody yet has solved
that problem.

KARL: What's the danger in doing this too soon, you know, just make this
symbolic gesture to shut the place down?

CHENEY: Well, if you release people that shouldn't have been released -- and
that's happened in some cases already -- you end up with them back on the
battlefield.

And we've had, as I recall now -- and these are rough numbers, I'd want to check
them -- but, say, approximately 30 of these folks have been held in Guantanamo,
then released, and ended up back on the battlefield again, and we've encountered
them a second time around. But they've either been killed or captured in further
conflicts with our forces.

KARL: I don't know if you saw, but on Sunday, John McCain said that the national
security team that has been established by President-elect Obama -- Clinton,
James Jones, Robert Gates -- this is a team that he could have assembled. How do
you assess this incoming team?

CHENEY: Well, I must say, I think it's a pretty good team. I'm not close to
Barack Obama, obviously, nor am I a -- do I identify with him politically. He's
a liberal. I'm a conservative. But I think the idea of keeping Gates at Defense
is excellent. I think Jim Jones will be very, very effective as the national
security adviser. And while I would not have hired Senator Clinton, I think
she's tough, she's smart, she works very hard and she may turn out to be just
what President Obama needs.

KARL: Should he keep the intelligence chiefs as well?

CHENEY: I don't want to get into the business of encouraging them on one course
of another. It could be the kiss of death. He's already made his judgments about
Jones and Gates and as I say, I think they're both very talented people and
they'll do well. For me to get into the business of commenting on individuals
where decisions have not yet been made, frankly, I think that would not be fair
to them in that process.

KARL: So it was reported that when you went up to lunch for the Republicans
shortly before the auto bailout vote that you said if the auto companies go down
it will be Hoover time. Do you believe that to be true?

CHENEY: Well, that's not quite what I said. This was a report that came out of a
meeting where we did discuss the subject. What I said basically was that a
crisis in the auto industry could not have come at a worse time because we were
in the midst of a major financial crisis, we're on the downside of what may be
the worst recession since the end of World War II and we're in the middle of a
presidential transition.

President Bush to the Obama administration and under those circumstances were
the automobile industry be allowed to collapse or at least the American portion
of it I thought would be extremely unfortunate and that we needed to do
everything we could to prevent that. That's sort of the basic picture I made. I
did make a reference to Herbert Hoover but I can't recall the exact words for
it.

KARL: But if the government doesn't act to save these companies, to give them a
lifeline, do we risk headed to Hoover time?

CHENEY: Well, not so much in terms of the time but I would be concerned if under
these circumstances we did not as an administration, and we still have major
responsibilities for another month, if we didn't do everything we could to avoid
those consequences and it would have a lasting impact, if you will, on how we're
perceived

KARL: What do you think when you hear the Democrats talk about a stimulus plan
of a trillion dollars?

CHENEY: Well, it depends on what goes into it. I'm not sure it's needed or
necessary. It's not clear to me that it would have any short term effect. That
doesn't mean there aren't things that could be done on some of these longer term
projects but I think caution is in order here and to date I have not seen the
proposals, I have not seen the arguments for why this is appropriate or why it
would be good economic policy at this time.

We clearly are involved now in a recession. We see that around us every day but
I think part of that is the fallout from the financial crisis we had earlier
this year and it's a global problem. It's not just the United States that's
affected here. This is really both, whether we're talking about the recession or
we talk about financial problems, these are global issues that are going to
effect everybody worldwide and it seems to me you cannot treat this just as an
isolated problem inside the United State as has often been the case in the past
with our recession. This is one that's going to occur on a global basis.

KARL: You've been called the most powerful vice president in history. Help me
understand how a guy who didn't even seek this job out managed to do that.

CHENEY: Well, whatever I've been able to do as vice president, it's been because
that's what the president wanted me to do. And I have enjoyed very much my time
as vice president, it's been a tremendous experience. It's not anything I sought
as you mentioned. The president asked me to take it on and I agreed to do it and
I think it was exactly the right decision from my standpoint. In terms of how
I'm viewed as a powerful vice president or influential vice president, I think
that's something that we'll have to leave to the historians. There are a lot of
people out there with opinions and I'll let somebody else sort them out.

KARL: What do you say to those who say you've changed? I mean, you've seen
friends go across, say, I don't know Dick Cheney any more. They've really known
you just about as long as anybody in this town. What do you say to that?

CHENEY: Well, I -- the way I think of it is in terms of whether or not I
changed, I think a prime motivation for me and much of what I've done was 9/11.
And being here on 9/11, going through that experience. And reaching the
conclusion that somebody said the other day that I said at that point, that's
not going to happen again on my watch. And we've done everything we could, the
president has, I have, a lot of the people that we work with, to make certain
that didn't happen.

And we've succeeded. But when you contemplate the 9/11 with terrorists instead
of being armed with box cutters and airline tickets, equipped with a nuclear
weapon or a biological agent of some kind in the middle of one of our cities and
think about the consequences of that and then I think we're justified in taking
bold action. I think it's incumbent upon us to take bold action to make certain
that never happens.

And it does say we've been successful for seven and a half years now and have I
changed? Well, not in the sense that I've gone through some fundamental
psychological transition here but I have been since that day focused very much
on what we needed to do to defend the nation and I think the policies we've
recommended, the programs that we've undertaken have been good program. I think
those have been sound decisions and if that's what they mean by saying I've
changed, I'm guilty.

KARL: What did you think when you saw that shoe flying at the president?

CHENEY: Well, I thought the president handled it rather well. He had some good
moves the way he ducked and avoided the shoe and then what was his response?
That it was a size 10 and he could see that as it went by. No, I think it's an
incident where an Iraqi reporter threw shoes at the president. I don't attribute
any special significance to it.

KARL: But when you were told during another interview that the American public
is overwhelmingly against the war, you said, "So?" Do you regret saying that?
Would you take that back.

CHENEY: No. In effect what I did was, the person who made the statement they
didn't ask a question. And after they made a statement, I said, "So?" expecting
a question and I didn't get a question. And I took "So" to mean that I didn't
have any concern for public opinion. I do. But I don't think and the point I
made then is that we could not have done what we'd done if we'd been reading the
polls.

If we had responded to the polls I think the world would look very different
today than it does. I think Saddam Hussein would still be in power. I think the
progress that we've made in liberating 50 million people in Iraq and Afghanistan
might well have not happened.

You can't base public policy or tough decisions in a presidency simply on what's
happening in the polls. They change from week to week. You can take two polls on
exactly the same day and get totally different results. It's just a bad way to
make policy. And we didn't do that. What we did was what we thought was right
for the country. We stood once for reelection and were reelected and we've
continued to pursue those policies throughout our time in office.

Our objective has not been to see how high we could get our poll numbers by the
time we left office. Our objective has been to do other things such as defend
the nation, pursue a successful counterinsurgency program to prevail in Iraq and
Afghanistan, reform the education system, add prescription drug benefits to
Medicare, cut taxes. Those are all things that I think we've succeeded on. They
were not all popular, especially what we did in the national security area I
think has been controversial but it was the right thing to do and the president
and I were elected to make decisions and not to read polls.

KARL: Now, President Bush recently said that his greatest regret was that the
intelligence was wrong on weapons of mass destruction. Is that your biggest
regret?

CHENEY: No, I wouldn't -- I understand why he says that. I certainly share the
frustration that the intelligence report on Iraq WMD generated but in terms of
the intelligence itself, I tend to look at the entire community and what they've
done over the course of the last several years. Intelligence -- it's not a
science, it's an art form in many respects and you don't always get it right.

I think while I would mention that as a major failure of the intelligence
community, it clearly was. On the other hand, we've had other successes and
failures. I think the run-up to 9/11 where we missed that attack was a failure.
On the other hand we've had great success since 9/11 in terms of what the
intelligence community has contributed overall to the defense of the nation, to
defeating al Qaeda, to making it possible for us to do very serious damage to
our enemies.

KARL: You probably saw Karl Rove last week said that if the intelligence had
been correct we probably would not have gone to war.

CHENEY: I disagree with that. I think -- as I look at the intelligence with
respect to Iraq, what they got wrong was that there weren't any stockpiles. What
we found in the after action reports, after the intelligence report was done and
then various special groups went and looked at the intelligence and what its
validity was. What they found was that Saddam Hussein still had the capability
to produce weapons of mass destruction. He had the technology, he had the
people, he had the basic feed stocks.

They also found that he had every intention of resuming production once the
international sanctions were lifted. He had a long reputation and record of
having started two wars. Of having brutalized and killed hundreds of thousands
of people, some of them with weapons of mass destruction in his own country. He
had violated 16 National Security Council resolutions. He had established a
relationship as a terror sponsoring state according to the State Department. He
was making $25,000 payments to the families of suicide bombers.

This was a bad actor and the country's better off, the world's better off with
Saddam gone and I think we made the right decision in spite of the fact that the
original NIE was off in some of its major judgments.

KARL: So you're 30 something -- how many more days do you have left?

CHENEY: Thirty five!

KARL: Thirty five more days left. Who's counting? hat advice do you have to Joe
Biden coming in this role? You've already seen that Harry Reid has said that
Biden will not be invited into the policy luncheons up at the Senate. Biden's
already signaled that he's going to be scaling back some of this office, what
you've done to this office. What's your advice to Biden?

CHENEY: Well, the most important element in deciding what kind of vice
presidency any administration is going to have is what the president wants to
have done. He is the boss. He is the one who's got to decide what kind of
authority he wants to entrust to his vice president, how he fits with the other
folks in the administration, what kinds of policies he wants him involved in and
it's really unique for each administration.

I've had one meeting with Joe Biden since he won the election. He and his wife
came by the house and we were able to show him the official residence and had a
pleasant chat. We didn't get into policy in any major way. But Joe Biden's an
experienced senator. He's been around a long time. He knows a lot. Whatever
contribution he's allowed to make to the Obama administration is really up to
President Obama, he'll decide what his role is going to be.

KARL: What are you going to miss most about this job?

CHENEY: Well, I am looking forward to a return to private life. This is the
fourth time I've transitioned out of government to the private sector. But I'll
also miss it. It's really been just a tremendously remarkable experience. I
think the people that I've been pleased to work with including some of my
colleagues in the administration, especially the men and women of our armed
forces and the intelligence community who have done so much to keep us safe over
this period of time. It's been 40 years since I came to Washington to stay 12
months and I think it's about time I went and did something else.

KARL: Regrets?

CHENEY: Oh, not a lot at this stage. I think I'll have a chance to reflect on
that after I get out of here and see whether to -- anything immediately comes to
mind. I think given the circumstances we've had to deal with, I think we've done
pretty well.

My experience goes back, this is the fourth administration I've worked in.
Things that were cited as a regret at the time, Jerry Ford's pardon of Richard
Nixon, for example, 30 years later look pretty good. So I am cautious in terms
of making judgments at this point. A lot of other people can do it. I am not yet
out of office and I'll withhold judgment for a while.

KARL: The attacks don't seem to have bothered you but when they make a political
ad out of you in the last week of the campaign simply because you've done one
event and you know the approval rating, so I understand your position on the
polls, but do those attacks on you get to you? Do they bug you?

CHENEY: No. If they didn't I shouldn't take this job. We've talked about how
Senator Clinton referred to me as Darth Vader. I asked my wife about that, if
that didn't bother her. She said, no, it humanizes you. So it's -- you've got to
have a sense of humor about it. Don't take it personally. You've got to have a
thick skin or you shouldn't be in this business. You can turn on the Jay Leno
show or David Letterman on any weekday night and over the course of a week there
are likely to be two or three shots fired in my direction. You just, you really
can't worry about it. Most of them are pretty funny.

KARL: And then finally, what are you going to do next? What's the final act
for...

CHENEY: Well, I don't know yet. I'll say I've got 35 more days to go here with
the president and then I'll decide after that. I'm not ready to retire yet but I
do want a chance to spend more time with the family. Got some rivers I want to
face. Maybe write a book. I haven't decided yet.

So there'll be hopefully plenty of years left to engage in those other
activities and my experience has been when you get to one of these major turning
points in your life, major milestone where you leave one activity and have to go
to something else, on the other side usually are good things. That's always been
my experience.

*


Newsweek --

December 13, 2008 (2008.12.22 issue)

THE FED WHO BLEW THE WHISTLE
Is he a hero or a criminal?

by Michael Isikoff

http://www.newsweek.com/id/174601

Thomas M. Tamm was entrusted with some of the government's most important
secrets. He had a Sensitive Compartmented Information security clearance, a
level above Top Secret. Government agents had probed Tamm's background, his
friends and associates, and determined him trustworthy.

It's easy to see why: he comes from a family of high-ranking FBI officials.
During his childhood, he played under the desk of J. Edgar Hoover, and as an
adult, he enjoyed a long and successful career as a prosecutor. Now gray-haired,
56 and fighting a paunch, Tamm prides himself on his personal rectitude. He has
what his 23-year-old son, Terry, calls a "passion for justice." For that reason,
there was one secret he says he felt duty-bound to reveal.

In the spring of 2004, Tamm had just finished a yearlong stint at a Justice
Department unit handling wiretaps of suspected terrorists and spies -- a unit so
sensitive that employees are required to put their hands through a biometric
scanner to check their fingerprints upon entering. While there, Tamm stumbled
upon the existence of a highly classified National Security Agency program that
seemed to be eavesdropping on U.S. citizens. The unit had special rules that
appeared to be hiding the NSA activities from a panel of federal judges who are
required to approve such surveillance. When Tamm started asking questions, his
supervisors told him to drop the subject. He says one volunteered that "the
program" (as it was commonly called within the office) was "probably illegal."

Tamm agonized over what to do. He tried to raise the issue with a former
colleague working for the Senate Judiciary Committee. But the friend, wary of
discussing what sounded like government secrets, shut down their conversation.
For weeks, Tamm couldn't sleep. The idea of lawlessness at the Justice
Department angered him. Finally, one day during his lunch hour, Tamm ducked into
a subway station near the U.S. District Courthouse on Pennsylvania Avenue. He
headed for a pair of adjoining pay phones partially concealed by large,
illuminated Metro maps. Tamm had been eyeing the phone booths on his way to work
in the morning. Now, as he slipped through the parade of midday subway riders,
his heart was pounding, his body trembling. Tamm felt like a spy. After looking
around to make sure nobody was watching, he picked up a phone and called The New
York Times.

That one call began a series of events that would engulf Washington -- and upend
Tamm's life. Eighteen months after he first disclosed what he knew, the Times
reported that President George W. Bush had secretly authorized the NSA to
intercept phone calls and e-mails of individuals inside the United States
without judicial warrants. The drama followed a quiet, separate rebellion within
the highest ranks of the Justice Department concerning the same program. (James
Comey, then the deputy attorney general, together with FBI head Robert Mueller
and several other senior Justice officials, threatened to resign.) President
Bush condemned the leak to the Times as a "shameful act." Federal agents
launched a criminal investigation to determine the identity of the culprit.

The story of Tamm's phone call is an untold chapter in the history of the secret
wars inside the Bush administration. The New York Times won a Pulitzer Prize for
its story. The two reporters who worked on it each published books. Congress,
after extensive debate, last summer passed a major new law to govern the way
such surveillance is conducted. But Tamm -- who was not the Times's only source,
but played the key role in tipping off the paper -- has not fared so well. The
FBI has pursued him relentlessly for the past two and a half years. Agents have
raided his house, hauled away personal possessions and grilled his wife, a
teenage daughter and a grown son. More recently, they've been questioning Tamm's
friends and associates about nearly every aspect of his life. Tamm has resisted
pressure to plead to a felony for divulging classified information. But he is
living under a pall, never sure if or when federal agents might arrest him.

Exhausted by the uncertainty clouding his life, Tamm now is telling his story
publicly for the first time. "I thought this [secret program] was something the
other branches of the government -- and the public -- ought to know about. So
they could decide: do they want this massive spying program to be taking place?"
Tamm told NEWSWEEK, in one of a series of recent interviews that he granted
against the advice of his lawyers. "If somebody were to say, who am I to do
that? I would say, 'I had taken an oath to uphold the Constitution.' It's
stunning that somebody higher up the chain of command didn't speak up."

Tamm concedes he was also motivated in part by his anger at other Bush-
administration policies at the Justice Department, including its aggressive
pursuit of death-penalty cases and the legal justifications for "enhanced"
interrogation techniques that many believe are tantamount to torture. But, he
insists, he divulged no "sources and methods" that might compromise national
security when he spoke to the Times. He told reporters Eric Lichtblau and James
Risen nothing about the operational details of the NSA program because he didn't
know them, he says. He had never been "read into," or briefed, on the details of
the program. All he knew was that a domestic surveillance program existed, and
it "didn't smell right."

(Justice spokesman Dean Boyd said the department had no comment on any aspect of
this story. Lichtblau said, "I don't discuss the identities of confidential
sources ... Nearly a dozen people whom we interviewed agreed to speak with us on
the condition of anonymity because of serious concerns about the legality and
oversight of the secret program." Risen had no comment.)

Still, Tamm is haunted by the consequences of what he did -- and what could yet
happen to him. He is no longer employed at Justice and has been struggling to
make a living practicing law. He does occasional work for a local public
defender's office, handles a few wills and estates -- and is more than $30,000
in debt. (To cover legal costs, he recently set up a defense fund.) He says he
has suffered from depression. He also realizes he made what he calls "stupid"
mistakes along the way, including sending out a seemingly innocuous but fateful
e-mail from his Justice Department computer that may have first put the FBI on
his scent. Soft-spoken and self-effacing, Tamm has an impish smile and a wry
sense of humor. "I guess I'm not a very good criminal," he jokes.

At times during his interviews with NEWSWEEK, Tamm would stare into space for
minutes, silently wrestling with how to answer questions. One of the most
difficult concerned the personal ramifications of his choice. "I didn't think
through what this could do to my family," he says.

Tamm's story is in part a cautionary tale about the perils that can face all
whistleblowers, especially those involved in national-security programs. Some
Americans will view him as a hero who (like Daniel Ellsberg and perhaps Mark
Felt, the FBI official since identified as Deep Throat) risked his career and
livelihood to expose wrongdoing at the highest levels of government. Others --
including some of his former colleagues -- will deride Tamm as a renegade who
took the law into his own hands and violated solemn obligations to protect the
nation's secrets. "You can't have runoffs deciding they're going to be the white
knight and running to the press," says Frances Fragos Townsend, who once headed
the unit where Tamm worked and later served as President Bush's chief
counterterrorism adviser. Townsend made clear that she had no knowledge of
Tamm's particular case, but added: "There are legal processes in place [for
whistle-blowers' complaints]. This is one where I'm a hawk. It offends me, and I
find it incredibly dangerous."

Tamm understands that some will see his conduct as "treasonous." But still, he
says he has few regrets. If he hadn't made his phone call to the Times, he
believes, it's possible the public would never have learned about the Bush
administration's secret wiretapping program. "I don't really need anybody to
feel sorry for me," he wrote in a recent e-mail to NEWSWEEK. "I chose what I
did. I believed in what I did."

If the government were drawing up a profile of a national-security leaker, Tamm
would seem one of the least likely suspects. He grew up in the shadow of J.
Edgar Hoover's FBI. Tamm's uncle, Edward Tamm, was an important figure in the
bureau's history. He was once a top aide to Hoover and regularly briefed
President Franklin Roosevelt on domestic intelligence matters. He's credited in
some bureau histories with inventing (in 1935) not only the bureau's name, but
its official motto: Fidelity, Bravery, Integrity. Tamm's father, Quinn Tamm, was
also a high-ranking bureau official. He too was an assistant FBI director under
Hoover, and at one time he headed up the bureau's crime lab. Tamm's mother, Ora
Belle Tamm, was a secretary at the FBI's identification division.

When Thomas Tamm was a toddler, he crawled around Hoover's desk during FBI
ceremonies. (He still remembers his mother fretting that his father might get in
trouble for it.) As an 8-year-old, Tamm and his family watched John F. Kennedy's
Inaugural parade down Pennsylvania Avenue from the balcony of Hoover's office,
then located at the Justice Department.

Tamm's brother also served for years as an FBI agent and later worked as an
investigator for the 9/11 Commission. (He now works for a private consulting
firm.) Tamm himself, after graduating from Brown University in 1974 and
Georgetown Law three years later, chose a different path in law enforcement. He
joined the state's attorney's office in Montgomery County, Md. (He was also, for
a while, the chairman of the county chapter of the Young Republicans.) Tamm
eventually became a senior trial attorney responsible for prosecuting murder,
kidnapping and sexual-assault cases. Andrew Sonner, the Democratic state's
attorney at the time, says that Tamm was an unusually gifted prosecutor who knew
how to connect with juries, in part by "telling tales" that explained his case
in a way that ordinary people could understand. "He was about as good before a
jury as anybody that ever worked for me," says Sonner, who later served as an
appellate judge in Maryland.

In 1998, Tamm landed a job at the Justice Department's Capital Case Unit, a new
outfit within the criminal division that handled prosecutions that could bring
the federal death penalty. A big part of his job was to review cases forwarded
by local U.S. Attorneys' Offices and make recommendations about whether the
government should seek execution. Tamm would regularly attend meetings with
Attorney General Janet Reno, who was known for asking tough questions about the
evidence in such cases -- a rigorous approach that Tamm admired. In July 2000,
at a gala Justice Department ceremony, Reno awarded Tamm and seven colleagues in
his unit the John Marshall Award, one of the department's highest honors.

After John Ashcroft took over as President Bush's attorney general the next
year, Tamm became disaffected. The Justice Department began to encourage U.S.
attorneys to seek the death penalty in as many cases as possible. Instead of
Reno's skepticism about recommendations to seek death, the capital-case
committee under Ashcroft approved them with little, if any, challenge. "It
became a rubber stamp," Tamm says. This bothered him, though there was nothing
underhanded about it. Bush had campaigned as a champion of the death penalty.
Ashcroft and the new Republican leadership of the Justice Department advocated
its use as a matter of policy.

Tamm's alienation grew in 2002 when he was assigned to assist on one especially
high-profile capital case -- the prosecution of Zacarias Moussaoui, a Qaeda
terrorist arrested in Minnesota who officials initially (and wrongly) believed
might have been the "20th hijacker" in the September 11 plot. Tamm's role was to
review classified CIA cables about the 9/11 plot to see if there was any
exculpatory information that needed to be relinquished to Moussaoui's lawyers.
While reviewing the cables, Tamm says, he first spotted reports that referred to
the rendition of terror suspects to countries like Egypt and Morocco, where
aggressive interrogation practices banned by American law were used. It appeared
to Tamm that CIA officers knew "what was going to happen to [the suspects]" --
that the government was indirectly participating in abusive interrogations that
would be banned under U.S. law.

But still, Tamm says he was fully committed to the prosecution of the war on
terror and wanted to play a bigger role in it. So in early 2003, he applied and
was accepted for transfer to the Office of Intelligence Policy and Review
(OIPR), probably the most sensitive unit within the Justice Department. It is
the job of OIPR lawyers to request permission for national-security wiretaps.
These requests are made at secret hearings of the Foreign Intelligence
Surveillance Court, a body composed of 11 rotating federal judges.

Congress created the FISA court in 1978 because of well-publicized abuses by the
intelligence community. It was designed to protect the civil liberties of
Americans who might come under suspicion. The court's role was to review
domestic national-security wiretaps to make sure there was "probable cause" that
the targets were "agents of a foreign power" -- either spies or operatives of a
foreign terrorist organization. The law creating the court, called the Foreign
Intelligence Surveillance Act, made it a federal crime -- punishable by up to
five years in prison -- for any official to engage in such surveillance without
following strict rules, including court approval.

But after arriving at OIPR, Tamm learned about an unusual arrangement by which
some wiretap requests were handled under special procedures. These requests,
which could be signed only by the attorney general, went directly to the chief
judge and none other. It was unclear to Tamm what was being hidden from the
other 10 judges on the court (as well as the deputy attorney general, who could
sign all other FISA warrants). All that Tamm knew was that the "A.G.-only"
wiretap requests involved intelligence gleaned from something that was obliquely
referred to within OIPR as "the program."

The program was in fact a wide range of covert surveillance activities
authorized by President Bush in the aftermath of 9/11. At that time, White House
officials, led by Vice President Dick Cheney, had become convinced that FISA
court procedures were too cumbersome and time-consuming to permit U.S.
intelligence and law-enforcement agencies to quickly identify possible Qaeda
terrorists inside the country. (Cheney's chief counsel, David Addington,
referred to the FISA court in one meeting as that "obnoxious court," according
to former assistant attorney general Jack Goldsmith.) Under a series of secret
orders, Bush authorized the NSA for the first time to eavesdrop on phone calls
and e-mails between the United States and a foreign country without any court
review. The code name for the NSA collection activities -- unknown to all but a
tiny number of officials at the White House and in the U.S. intelligence
community -- was "Stellar Wind."

The NSA identified domestic targets based on leads that were often derived from
the seizure of Qaeda computers and cell phones overseas. If, for example, a
Qaeda cell phone seized in Pakistan had dialed a phone number in the United
States, the NSA would target the U.S. phone number -- which would then lead
agents to look at other numbers in the United States and abroad called by the
targeted phone. Other parts of the program were far more sweeping. The NSA, with
the secret cooperation of U.S. telecommunications companies, had begun
collecting vast amounts of information about the phone and e-mail records of
American citizens. Separately, the NSA was also able to access, for the first
time, massive volumes of personal financial records -- such as credit-card
transactions, wire transfers and bank withdrawals -- that were being reported to
the Treasury Department by financial institutions. These included millions of
"suspicious-activity reports," or SARS, according to two former Treasury
officials who declined to be identified talking about sensitive programs. (It
was one such report that tipped FBI agents to former New York governor Eliot
Spitzer's use of prostitutes.) These records were fed into NSA supercomputers
for the purpose of "data mining" -- looking for links or patterns that might (or
might not) suggest terrorist activity.

But all this created a huge legal quandary. Intelligence gathered by the
extralegal phone eavesdropping could never be used in a criminal court. So after
the NSA would identify potential targets inside the United States,
counterterrorism officials would in some instances try to figure out ways to use
that information to get legitimate FISA warrants -- giving the cases a judicial
stamp of approval.

It's unclear to what extent Tamm's office was aware of the origins of some of
the information it was getting. But Tamm was puzzled by the unusual procedures
-- which sidestepped the normal FISA process -- for requesting wiretaps on cases
that involved program intelligence. He began pushing his supervisors to explain
what was going on. Tamm says he found the whole thing especially curious since
there was nothing in the special "program" wiretap requests that seemed any
different from all the others. They looked and read the same. It seemed to Tamm
there was a reason for this: the intelligence that came from the program was
being disguised. He didn't understand why. But whenever Tamm would ask questions
about this within OIPR, "nobody wanted to talk about it."

At one point, Tamm says, he approached Lisa Farabee, a senior counsel in OIPR
who reviewed his work, and asked her directly, "Do you know what the program
is?" According to Tamm, she replied: "Don't even go there," and then added, "I
assume what they are doing is illegal." Tamm says his immediate thought was,
"I'm a law-enforcement officer and I'm participating in something that is
illegal?" A few weeks later Tamm bumped into Mark Bradley, the deputy OIPR
counsel, who told him the office had run into trouble with Colleen Kollar-
Kotelly, the chief judge on the FISA court. Bradley seemed nervous, Tamm says.
Kollar-Kotelly had raised objections to the special program wiretaps, and "the
A.G.-only cases are being shut down," Bradley told Tamm. He then added, "This
may be [a time] the attorney general gets indicted," according to Tamm. (Told of
Tamm's account, Justice spokesman Boyd said that Farabee and Bradley "have no
comment for your story.")

One official who was aware of Kollar-Kotelly's objections was U.S. Judge Royce
C. Lamberth, a former chief of the FISA court. Lamberth tells NEWSWEEK that when
the NSA program began in October 2001, he was not informed. But the then chief
of OIPR, James Baker, discovered later that year that program intelligence was
being used in FISA warrants -- and he raised concerns. At that point, Lamberth
was called in for a briefing by Ashcroft and Gen. Michael Hayden, the NSA chief
at the time. Lamberth made clear to Ashcroft that NSA program intelligence
should no longer be allowed in any FISA warrant applications without his
knowledge. If it did appear, Lamberth warned, he would be forced to rule on the
legality of what the administration was doing, potentially setting off a
constitutional clash about the secret program.

Lamberth stepped down as chief FISA judge when his term ended in May 2002, but
Kollar-Kotelly asked him to continue as an adviser about matters relating to the
program. In early 2004, Kollar-Kotelly thought something was amiss. According to
Lamberth, she had concerns that the intelligence community, after collecting
information on U.S. citizens without warrants, was again attempting to launder
that intelligence through her court -- without her knowledge. She "had begun to
suspect that they were back-dooring information from the program into" FISA
applications, Lamberth tells NEWSWEEK. Kollar-Kotelly drew the line and wouldn't
permit it. "She was as tough as I was," says Lamberth, who had once barred a top
FBI agent from his court when he concluded the bureau hadn't been honest about
FISA applications. "She was going to know what she was signing off on before she
signed off ... I was proud of her." (Kollar-Kotelly declined to speak with
NEWSWEEK.)

Unbeknownst to Tamm, something else was going on at the Justice Department
during this period. A new assistant attorney general, a law professor named Jack
Goldsmith, had challenged secret legal opinions justifying the NSA surveillance
program. (The controversial opinions, written by a young and very conservative
legal scholar named John Yoo, had concluded that President Bush had broad
executive authority during wartime to override laws passed by Congress and order
the surveillance of U.S. citizens.) James Comey, the deputy attorney general,
had agreed with Goldsmith and refused to sign off on a renewal of the domestic
NSA program in March 2004. Attorney General Ashcroft was in the hospital at the
time. The White House first tried to get an extremely ill Ashcroft, drugged and
woozy, to overrule Comey, and then, after he refused, President Bush ordered the
program to continue anyway. Comey, in turn, drafted a resignation letter. He
described the situation he was confronting as "apocalyptic" and then added, "I
and the Justice Department have been asked to be part of something that is
fundamentally wrong," according to a copy of the letter quoted in "Angler," a
book by Washington Post reporter Barton Gellman.

Tamm -- who had no knowledge of the separate rebellion within the ranks of the
Justice Department -- decided independently to get in touch with Sandra
Wilkinson, a former colleague of his on the Capital Case Unit who had been
detailed to work on the Senate Judiciary Committee. He met with Wilkinson for
coffee in the Senate cafeteria, where he laid out his concerns about the program
and the unusual procedures within OIPR. "Look, the government is doing something
weird here," he recalls saying. "Can you talk to somebody on the intelligence
committee and see if they know about this?"

Some weeks passed, and Tamm didn't hear back. So he e-mailed Wilkinson from his
OIPR computer (not a smart move, he would later concede) and asked if they could
get together again for coffee. This time, when they got together, Wilkinson was
cool, Tamm says. What had she learned about the program? "I can't say," she
replied and urged him to drop the subject. "Well, you know, then," he says he
replied, "I think my only option is to go to the press." (Wilkinson would not
respond to phone calls from NEWSWEEK, and her lawyer says she has nothing to say
about the matter.)

The next few weeks were excruciating. Tamm says he consulted with an old law-
school friend, Gene Karpinski, then the executive director of a public-interest
lobbying group. He asked about reporters who might be willing to pursue a story
that involved wrongdoing in a national-security program, but didn't tell him any
details. (Karpinski, who has been questioned by the FBI and has hired a lawyer,
declined to comment.) Tamm says he initially considered contacting Seymour
Hersh, the investigative reporter for The New Yorker, but didn't know where to
reach him. He'd also noticed some strong stories by Eric Lichtblau, the New York
Times reporter who covered the Justice Department -- and with a few Google
searches tracked down his phone number.

Tamm at this point had transferred out of OIPR at his own initiative, and moved
into a new job at the U.S. Attorney's Office. He says he "hated" the desk work
at OIPR and was eager to get back into the courtroom prosecuting cases. His new
offices were just above Washington's Judiciary Square Metro stop. When he went
to make the call to the Times, Tamm said, "My whole body was shaking." Tamm
described himself to Lichtblau as a "former" Justice employee and called himself
"Mark," his middle name. He said he had some information that was best discussed
in person. He and Lichtblau arranged to meet for coffee at Olsson's, a now
shuttered bookstore near the Justice Department. After Tamm hung up the phone,
he was struck by the consequences of what he had just done. "Oh, my God," he
thought. "I can't talk to anybody about this." An even more terrifying question
ran through his mind. He thought back to his days at the capital-case squad and
wondered if disclosing information about a classified program could earn him the
death penalty.

In his book, "Bush's Law: The Remaking of American Justice," Lichtblau writes
that he first got a whiff of the NSA surveillance program during the spring of
2004 when he got a cold call from a "walk-in" source who was "agitated about
something going on in the intelligence community." Lichtblau wrote that his
source was wary at first. The source did not know precisely what was going on --
he was, in fact, maddeningly vague, the reporter wrote. But after they got
together for a few meetings ("usually at a bookstore or coffee shops in the
shadows of Washington's power corridors") his source's "credibility and his bona
fides became clear and his angst appeared sincere." The source told him of
turmoil within the Justice Department concerning counterterrorism operations and
the FISA court. "Whatever is going on, there's even talk Ashcroft could be
indicted," the source told Lichtblau, according to his book.

Tamm grew frustrated when the story did not immediately appear. He was hoping,
he says, that Lichtblau and his partner Risen (with whom he also met) would
figure out on their own what the program was really all about and break it
before the 2004 election. He was, by this time, "pissed off" at the Bush
administration, he says. He contributed $300 to the Democratic National
Committee in September 2004, according to campaign finance records.

It wasn't until more than a year later that the paper's executive editor, Bill
Keller, rejecting a personal appeal and warning by President Bush, gave the
story a green light. (Bush had warned "there'll be blood on your hands" if
another attack were to occur.) BUSH LETS U.S. SPY ON CALLERS WITHOUT COURTS,
read the headline in the paper's Dec. 16, 2005, edition. The story -- which the
Times said relied on "nearly a dozen current and former officials" -- had
immediate repercussions. Democrats, including the then Sen. Barack Obama,
denounced the Bush administration for violating the FISA law and demanded
hearings. James Robertson, one of the judges on the FISA court, resigned. And on
Dec. 30, the Justice Department announced that it was launching a criminal
investigation to determine who had leaked to the Times.

Not long afterward, Tamm says, he started getting phone calls at his office from
Jason Lawless, the hard-charging FBI agent in charge of the case. The calls at
first seemed routine. Lawless was simply calling everybody who had worked at
OIPR to find out what they knew. But Tamm ducked the calls; he knew that the
surest way to get in trouble in such situations was to lie to an FBI agent.
Still, he grew increasingly nervous. The calls continued. Finally, one day,
Lawless got him on the phone. "This will just take a few minutes," Lawless said,
according to Tamm's account. But Tamm told the agent that he didn't want to be
interviewed -- and he later hired a lawyer. (The FBI said that Lawless would
have no comment.)

In the months that followed, Tamm learned he was in even more trouble. He
suspected the FBI had accessed his former computer at OIPR and recovered the e-
mail he had sent to Wilkinson. The agents tracked her down and questioned her
about her conversations with Tamm. By this time, Tamm was in the depths of
depression. He says he had trouble concentrating on his work at the U.S.
Attorney's Office and ignored some e-mails from one of his supervisors. He was
accused of botching a drug case. By mutual agreement, he resigned in late 2006.
He was out of a job and squarely in the sights of the FBI. Nevertheless, he
began blogging about the Justice Department for liberal Web sites.

Early on the morning of Aug. 1, 2007, 18 FBI agents -- some of them wearing
black flak jackets and carrying guns -- showed up unannounced at Tamm's redbrick
colonial home in Potomac, Md., with a search warrant. While his wife, wearing
her pajamas, watched in horror, the agents marched into the house, seized Tamm's
desktop computer, his children's laptops, his private papers, some of his books
(including one about Deep Throat) and his family Christmas-card list. Terry
Tamm, the lawyer's college-age son, was asleep at the time and awoke to find FBI
agents entering his bedroom. He was escorted downstairs, where, he says, the
agents arranged him, his younger sister and his mother around the kitchen table
and questioned them about their father. (Thomas Tamm had left earlier that
morning to drive his younger son to summer school and to see a doctor about a
shoulder problem.) "They asked me questions like 'Are there any secret rooms or
compartments in the house'?" recalls Terry. "Or did we have a safe? They asked
us if any New York Times reporters had been to the house. We had no idea why any
of this was happening." Tamm says he had never told his wife and family about
what he had done.

After the raid, Justice Department prosecutors encouraged Tamm to plead guilty
to a felony for disclosing classified information -- an offer he refused. More
recently, Agent Lawless, a former prosecutor from Tennessee, has been
methodically tracking down Tamm's friends and former colleagues. The agent and a
partner have asked questions about Tamm's associates and political meetings he
might have attended, apparently looking for clues about his motivations for
going to the press, according to three of those interviewed.

In the meantime, Tamm lives in a perpetual state of limbo, uncertain whether
he's going to be arrested at any moment. He could be charged with violating two
laws, one concerning the disclosure of information harmful to "the national
defense," the other involving "communications intelligence." Both carry
penalties of up to 10 years in prison. "This has been devastating to him," says
Jeffrey Taylor, an old law-school friend of Tamm's. "It's just been hanging over
his head for such a long time ... Sometimes Tom will just zone out. It's like he
goes off in a special place. He's sort of consumed with this because he doesn't
know where it's going."

Taylor got a few clues into what the case was about last September when Agent
Lawless and a partner visited him. The FBI agents sat in his office for more
than an hour, asking what he knew about Tamm. The agents even asked about Tamm's
participation in a political lunch group headed by his former boss, Andrew
Sonner, that takes place once a month at a Rockville, Md., restaurant. "What
does that have to do with anything?" Taylor asked.

Agent Lawless explained. "This kind of activity" -- leaking to the news media --
"can be motivated by somebody who is a do-gooder who thinks that something wrong
occurred," Lawless said, according to Taylor. "Or it could be politically
motivated by somebody who wants to cause harm." If it was the former -- if Tamm
was a "do-gooder" -- the government could face a problem if it tried to bring a
case to trial. The jurors might sympathize with Tamm and "you'd face jury
nullification," said Lawless, according to Taylor, referring to a situation in
which a jury refuses to convict a defendant regardless of the law.

Just this month, Lawless and another agent questioned Sonner, the retired judge
who had served as a mentor to Tamm. The agents wanted to know if Tamm had ever
confided in Sonner about leaking to the Times. Sonner said he hadn't, but he
told the agents what he thought of their probe. "I told them I thought operating
outside of the FISA law was one of the biggest injustices of the Bush
administration," says Sonner. If Tamm helped blow the whistle, "I'd be proud of
him for doing that."

Paul Kemp, one of Tamm's lawyers, says he was recently told by the Justice
Department prosecutor in charge of Tamm's case that there will be no decision
about whether to prosecute until next year -- after the Obama administration
takes office. The case could present a dilemma for the new leadership at
Justice. During the presidential campaign, Obama condemned the warrantless-
wiretapping program. So did Eric Holder, Obama's choice to become attorney
general. In a tough speech last June, Holder said that Bush had acted "in direct
defiance of federal law" by authorizing the NSA program.

Tamm's lawyers say his case should be judged in that light. "When I looked at
this, I was convinced that the action he took was based on his view of a higher
responsibility," says Asa Hutchinson, the former U.S. attorney in Little Rock
and under secretary of the Department of Homeland Security who is assisting in
Tamm's defense. "It reflected a lawyer's responsibility to protect the rule of
law." Hutchinson also challenged the idea -- argued forcefully by other Bush
administration officials at the time -- that The New York Times story undermined
the war on terror by tipping off Qaeda terrorists to surveillance. "Anybody who
looks at the overall result of what happened wouldn't conclude there was any
harm to the United States," he says. After reviewing all the circumstances,
Hutchinson says he hopes the Justice Department would use its "discretion" and
drop the investigation. In judging Tamm's actions -- his decision to reveal what
little he knew about a secret domestic spying program that still isn't
completely known -- it can be hard to decipher right from wrong. Sometimes the
thinnest of lines separates the criminal from the hero.

*


McClatchy Newspapers --

December 11, 2008

AS POSSIBLE AFGHAN WAR-CRIMES EVIDENCE REMOVED, U.S. SILENT

by Tom Lasseter

http://www.mcclatchydc.com/227/story/57649.html

DASHT-E LEILI, Afghanistan -- Seven years ago, a convoy of container trucks
rumbled across northern Afghanistan loaded with a human cargo of suspected
Taliban and al Qaida members who'd surrendered to Gen. Abdul Rashid Dostum, an
Afghan warlord and a key U.S. ally in ousting the Taliban regime.

When the trucks arrived at a prison in the town of Sheberghan, near Dostum's
headquarters, they were filled with corpses. Most of the prisoners had
suffocated, and others had been killed by bullets that Dostum's militiamen had
fired into the metal containers.

Dostum's men hauled the bodies into the nearby desert and buried them in mass
graves, according to Afghan human rights officials. By some estimates, 2,000 men
were buried there.

Earlier this year, bulldozers returned to the scene, reportedly exhumed the
bones of many of the dead men and removed evidence of the atrocity to sites
unknown. In the area where the mass graves once were, there now are gaping pits
in the sands of the Dasht-e-Leili desert.

A U.N.-sponsored team of experts first spotted two large excavations on a visit
in June, one of them about 100 feet long and more than 9 feet deep in places. A
McClatchy reporter visited the site last month and found three additional
smaller pits, which apparently had been dug since June.

Faqir Mohammed Jowzjani, a former Dostum ally and the deputy governor of Jowzjan
province, where the graves were located, told McClatchy that it's common
knowledge that Dostum sent in the bulldozers.

He speculated that Dostum wanted to destroy the evidence because of local
political trouble that could have made him more prone to prosecution for the
killings.

Last year, Dostum and the then-Jowzjan governor became embroiled in a feud that
killed seven people and wounded more than 40. This year, Dostum and his men
kidnapped and reportedly beat a rival Afghan leader.

"Maybe General Dostum did it because of a fear of prosecution in the future,"
Jowzjani said.

Another local Afghan official said that Dostum had begun to worry that the 2001
killings could come back to haunt him. "Everyone in the city (Sheberghan) knows
that the evidence has been removed," said the official, who spoke on the
condition of anonymity because of worries about being killed for talking about
the subject.

"When the crime happened, (Dostum and his commanders) didn't think they would
ever be prosecuted," the official said. "But later they began to worry . . .
they have taken all the bones and thrown them into the river" that's about half
a mile from the graves.

NATO -- which has command authority over a team of troops less than three miles
from the grave site -- the United Nations and the United States have been silent
about the destruction of evidence of Dostum's alleged war crimes.

"The truth is that General Dostum went out with bulldozers and dug up those
graves," Jowzjani charged. "I don't know why UNAMA" -- the U.N. mission in
Afghanistan -- "hasn't said anything in this regard . . . maybe because of fears
about his power, or maybe they made a deal."

Gen. Ghulam Mujtaba Patang, the commander of Afghanistan's national police in
the north, said that he knew that the graves had been emptied. He noted that
"the digging was done very professionally" and said that U.N. and NATO-led teams
in the area were also aware. (While provincial reconstruction teams are led by
individual nations, their military components are under NATO command.)

"I don't understand why they didn't secure the area," Patang said in an
interview. Perhaps, he said, Western officials "are nervous" about the power
that Dostum has locally and don't want to upset local security by pushing him on
the matter.

Dostum was unavailable for comment, and one of his senior aides, Gen. Ghani
Karim Zada, declined several interview requests.

The Bush administration, too, has remained silent. U.S. officials claimed that
they had no knowledge of the deaths of the prisoners in the convoy until the
news media revealed them in 2002, and now the administration has remained silent
about Dostum's reported effort to destroy the evidence of them, which also would
be a major violation of international law.

American officials say that Dostum's alleged war crimes are a matter for the
Afghan authorities. But the U.S.-backed government of President Hamid Karzai is
weak and depends on American and NATO troops to fight a growing Taliban
insurgency that now operates in most of Afghanistan and all but surrounds Kabul,
the capital.

However, the fact that U.S. special forces and CIA operatives were working
closely with Dostum in late 2001, when the killings took place, has fueled
suspicions that the warlord got a free pass.

The U.S. Defense Department has said that it found no evidence of American
involvement or presence during the 2001 incident. If there was an investigation,
however, its findings have never been made public.

"At the time, we had a handful of special forces and CIA, and there was no way
we could have exercised any oversight" of the thousands of detainees under
Afghan control, said Joseph Collins, who was then the deputy assistant secretary
of defense for stability operations.

When he was asked about the detainees suffocating in metal shipping containers,
Collins, who's now a professor at the National War College, said that "I think
most people just took for granted what he (Dostum) said: that it was a horrible
accident."

McClatchy interviewed eight Pakistani men last year who said that Dostum's
gunmen had stuffed them in the containers. The men, mostly low-level Taliban
volunteers, said they'd had to climb over dozens of dead bodies to get out of
the containers.

"We were all sitting on the dead bodies which were lying on the floor; they were
lifeless," said Abdul Haleem, who said that many of the approximately 200 men in
his container died. "An arm was sticking up in the air here, a leg was sticking
up in the air there."

Another man who said he'd made the trip to Sheberghan in a container full of
dead and dying men was Tariq Khan. He said that when Dostum's men shot into the
metal box, "some people were shot in the eye; some were shot in the neck."

Dostum offered to take Pierre-Richard Prosper, who was then the U.S. ambassador-
at-large for war crimes issues, on a tour of the grave site in late 2002, but
Prosper declined. He was pressing a reluctant Afghan government and the U.N. to
take the lead in investigating the killings.

"We felt the Afghans needed to play a role," Prosper said in a telephone
interview. "If you're a new government, and you want to move forward, you have
to deal with the past."

However, no investigation was likely without strong U.S. backing, and Prosper
said that he couldn't recall whether Washington ever gave funding for a probe.

Farid Mutaqi, a senior investigator for the Afghanistan Independent Human Rights
Commission in the nearby city of Mazar-e-Sharif, said that it was almost
impossible to visit the site because of Dostum's power in northern Afghanistan.

Mutaqi said there'd been threats on his life and those of his staff members from
Dostum. There are rumors that the site was mined and that Dostum's men would
torture or kill people if they were caught researching in the area. At least
three Afghans who witnessed the original digging of the mass grave or who
investigated it later reportedly were killed, and a handful of others were
beaten.

Mutaqi said that he told officials at the United Nations and the local
provincial reconstruction team that Dostum's men had disturbed the mass graves
this year. They did nothing, he said.

Now, Mutaqi said, "You can see only a hole. In the area around it you can find a
few bones or some clothes. The site is gone . . . as for evidence, there is
nothing."

A spokesman for the United Nations in Afghanistan, Adrian Edwards, acknowledged
in an e-mail statement that the U.N. had known that the graves had been dug up
but had kept quiet.

"You're right that we don't always make public statements, but that's because
we're in a conflict environment and have to weigh up whether doing so will stall
chances of progress against impunity in other areas or put lives at risk," the
statement said. "It's a judgment call we constantly strive to get right, and
this is not the only instance where the choices we have to make can be
extraordinarily tough ones." Edwards noted that the U.N. is awaiting a report
about the site by a forensic specialist.

The spokesman for the U.N.'s Office of the High Commissioner for Human Rights,
Rupert Colville, said that while he didn't know the details of the digging at
the site, "there cannot be impunity for war crimes of this nature and scale...
it's a real shame."

Spokesmen for NATO and the U.S. Embassy in Kabul denied knowing that the remains
of hundreds of men had been removed from the site, and had no further comment.

"We have no information about bulldozers or digging at the site," said Lt. Cmdr.
James Gater, a spokesman for the NATO mission in Afghanistan. The U.S. general
who heads NATO forces in Afghanistan, Gen. David McKiernan, wouldn't do an
interview, Gater said.

U.S. Embassy spokesman Mark Stroh said that he'd checked with several officials
at the embassy and "nobody seemed to have any visibility on this." Stroh added
that "We don't necessarily monitor all of Dostum's behavior."

A McClatchy reporter, traveling without official escort, took GPS readings of
the open pits last month, and a forensic investigator with Physicians for Human
Rights, a group contracted by the U.N. to examine the site, confirmed that they
were in the same area where the grave site was found in early 2002.

In May 2002, the U.N. announced that a Physicians for Human Rights team had dug
a test trench in the area and found 15 bodies, three of which had been exhumed
and found to have died recently of asphyxiation

In November 2002, amid the Physicians for Human Rights findings and news
reports, a top-secret cable from the State Department's Bureau of Intelligence
and Research said that the number of people killed during transport to
Sheberghan "may approach 2,000."

The cable also said that while there was no security at Dasht-e Leili, U.N.
personnel from Mazar-e-Sharif were monitoring the grave " 'every few days' for
signs of tampering." There'd been plans for a detailed forensic investigation of
the site in spring 2003.

"The hope had been to do a full exhumation in 2003," said Nathaniel Raymond, a
senior investigator at Physicians for Human Rights. "It didn't happen."

The U.N. monitoring of the site stopped. Edwards, the U.N. spokesman, said that
he was still trying to reach officials who'd been present to get an explanation.
The U.N., NATO, U.S. forces and the Afghan government never took any formal
responsibility for patrolling the grave site.

Physicians for Human Rights made several requests to top U.S. officials to
secure the mass graves, including an August 2002 letter to then-Secretary of
Defense Donald H. Rumsfeld asking that he "reconsider the position of the
Defense Department and assure security at the grave site." Four months later,
the organization sent a letter to then-Deputy Defense Secretary Paul Wolfowitz
saying that it was crucial to provide a small security detachment.

"From the time we discovered the site in January 2002, we had been advocating
privately and publicly to the United Nations, the U.S. and the Afghan government
to ensure consistent site protection and protection of forensic evidence," Frank
Donaghue, the chief executive officer of Physicians for Human Rights, said in a
statement to McClatchy. "And clearly that did not happen."

Dostum has long experience with mass graves being used in the Afghan political
arena. In 1997, he revealed the discovery of mass graves of Taliban members
killed by a former ally turned rival, Gen. Abdul Malik Pahlawan, in the Dasht-e
Leili desert. The grave sites, which Dostum's men brought in international
journalists to document, helped cement Pahlawan's exile from the area at the
time.

Afghanistan's attorney general, its top law enforcement official, said that
given the bad security conditions in the country it was hard to think about
investigating possible war crimes.

"So for the time being, we have put these issues off for the future," Mohammed
Ishaq Aloko said in an interview at his Kabul office.

Aloko, who's seen as being very close to President Karzai, didn't respond
directly to repeated questions about Dostum.

"I believe that those who committed crimes against humanity will be prosecuted
one day," Aloko said. Just not anytime soon, he said.

*


Washington Post --

November 25, 2008

HAMDAN TO BE SENT TO YEMEN
Bin Laden Driver Spent 7 Years at Guantanamo

By Josh White and William Branigin

http://www.washingtonpost.com/wp-dyn/content/
article/2008/11/24/AR2008112403159.html

The U.S. military has decided to transfer Osama bin Laden's former driver from
custody at Guantanamo Bay to his home in Yemen, ending the seven-year saga of a
man the Bush administration considered a dangerous terrorist but whom a military
jury found to be a low-level aide.

Salim Ahmed Hamdan is expected to arrive within 48 hours in Yemen's capital,
Sanaa, where he will serve out the rest of his military commission sentence,
which is set to expire Dec. 27, two government officials said. The Pentagon's
decision to send Hamdan home narrowly avoids what could have been a sticky
diplomatic situation, as Bush administration officials had long contended they
could hold Hamdan indefinitely.

It also prevents President-elect Barack Obama from having to decide Hamdan's
fate early in his term. Obama has said he wants to close the U.S. military
prison in Cuba.

Hamdan's attorneys were poised to fight the assertion that their client could be
held indefinitely, a case that probably would have brought Hamdan back to the
Supreme Court to challenge his detention. Instead, he will serve out the
remaining month of his sentence in a Yemeni prison before being released to his
wife and two young children, one of whom has never met him. Hamdan is about 40.

"Legally, we absolutely have a right to hold enemy combatants, but politically
is he the guy we want to fight all the way to the Supreme Court about?" said a
defense official familiar with the release negotiations. "I think we came to the
conclusion that, no, he wasn't. This is a win for everyone."

A senior diplomatic official who spoke on the condition of anonymity because
Hamdan had not yet arrived in Yemen said last night that the conditions of
Hamdan's release are that Yemen will hold him until Dec. 27 and will then let
him go and continue to mitigate any threat he might pose to the United States
and its allies, a standard part of U.S. agreements with countries calling for
the release of Guantanamo Bay detainees.

Military prosecutors and Hamdan's attorneys said yesterday that they could not
confirm his impending release. It is standard Defense Department policy not to
discuss detainee transfers until they are completed because of operational
security, said Cmdr. J.D. Gordon, a Pentagon spokesman.

"Hearing that [Hamdan] may be returned in the near future doesn't surprise me,"
said Michael Berrigan, deputy chief defense counsel at the Pentagon's Office of
Military Commissions. "That's the wise thing to do. But I can't confirm it."

Charles Swift, one of Hamdan's attorneys, said that if U.S. officials do send
Hamdan home before his sentence expires, "they're absolutely doing the right
thing."

"Certainly the fair thing to do is to return him," Swift said, noting that a
jury of experienced senior officers thought he deserved little extra time behind
bars. "If you don't, you really come to the absolute thing of the commissions
becoming a complete sham."

Hamdan's saga began in 2001 with an arrest on a battlefield in Afghanistan. He
was promptly sent to Guantanamo Bay after it opened in January 2002, and his
case stalled, in part because of his legal challenges to the military
commissions system. Hamdan, held as a suspected terrorist and afforded few
rights, won a Supreme Court case in June 2006 that threw out the Bush
administration's trial system and forced Congress to rewrite the rules.

He was tried under new military commission standards in August and was found
guilty of material support for terrorism. But the jury, recognizing Hamdan's
minor role, surprised defense officials by coming back with a 66-month sentence
that gave Hamdan credit for the 61 months he had already spent at Guantanamo
Bay. Prosecutors had turned down plea deals that would have landed Hamdan a
sentence of 10 years or longer, went to a jury trial, and instead received a
sentence that amounted to only months behind bars.

Hamdan was the second detainee to face a military commission at Guantanamo Bay
and became the second man convicted of terrorism charges at the military base.
Australian David Hicks was the first, accepting guilt on terrorism charges as
part of a high-level plea deal that secured his release from the prison and the
ability to serve out his sentence in his homeland. Hicks has been living at home
under supervised release, which is scheduled to end soon.

Col. Lawrence Morris, the Pentagon's lead prosecutor for military commissions,
said that senior officials consider many factors when transferring a detainee
overseas and that he is confident they have those in mind in every case.

"The critical factor is that they are held accountable for their conduct and
that they are disabled for the appropriate time period from their involvement in
terrorism," Morris said last night. "When our leaders evaluate whether to return
them somewhere, that is foremost in their mind, and they would not return them
unless they were satisfied on both those fronts."

Hamdan's release will be a preliminary test of Yemen's ability to follow through
on detainee transfers and continued custody, as the United States has questioned
the Yemeni government's ability to enforce such agreements. Yemen is working to
set up a rehabilitation program for released terrorism suspects, similar to one
in Saudi Arabia.

Yemeni officials declined to comment on Hamdan because he has not yet been
transferred.

"We haven't been comfortable with Yemen's track record on Guantanamo detainees,"
said one U.S. defense official, referring to the 10 or so that have returned to
the country. "This will be good to show us if they have the political will to
work with us on the remaining population. It's a good opportunity for them."

[ Staff researcher Julie Tate contributed to this report. ]

*


Miami Herald --

November 23, 2008

GUANTANAMO DETAINEES GET A DOSE OF CULTURE

by Carol Rosenberg

http://www.miamiherald.com/news/americas/guantanamo/story/783923.html

GUANTANAMO BAY NAVY BASE, Cuba -- Prison camp staff will soon start offering art
and geology classes to long-held war-on-terrorism detainees. English is now
being taught as military jailers tinker with how to distract captured jihadists.

President-elect Barack Obama may be pledging to empty the controversial prison
camps of the 250 men called enemy combatants, but absent an evacuation order
from the White House, the military is planning for the long haul on this, the
lone American outpost on Communist soil.

"We want to keep their brains stimulated. We're not here to give degrees," says
Zak, an Arab American who serves as the prison camps' cultural advisor, a
secular job. "Once they are engaged and busy, they leave the guards alone."

Plans include hand-held Game Boy-like electronic games to circulate through the
cells, newspapers from Cairo, more "movie nights" featuring videotaped sports
and expanded lessons in English as a second language.

The idea is to help men captured across the globe think for themselves. The one
thing they most want to learn, says Zak: "When am I going home?"

But change comes slowly to this 45-square-mile U.S. Navy base bunkered behind a
Cuban minefield with small-town amenities and the population to match: fewer
than 10,000 troops and their families, foreign laborers and U.S. government
civilian support staff.

Meantime, it's business as usual behind the razor wire.

Prison camp days for the 250 or so detainees revolve around a routine. Five
calls to prayer. Three meals, for most men passed through a slot in the cell
called a "beanhole." And an option to visit a recreation yard.

Guards walk the block. Lawyers sometimes arrive from the mainland, which means
being shackled and shuffled to a cramped visitor's room where the client is
chained to the floor.

After seven years, 17 men are facing trials, a process now in doubt.

Obama has said he wants alleged terrorists tried in U.S. courts, not the special
military commissions that have so far convicted two men here as war criminals --
Osama bin Laden's $200-a-month driver and the al Qaeda founder's media
secretary.

There's also a secret facility here called Camp 7, for former CIA captives --
those now considered the worst of the worst.

They are men like Khalid Sheik Mohammed, who reportedly boasted that he both
plotted 9/11 and cut off journalist Daniel Pearl's head "with my blessed hand,"
and a man known as Hambali, long considered by Indonesians to be al Qaeda
affiliate enemy No. 1.

SECRETIVE UNIT

These men are guarded by a clandestine unit called Task Force Platinum, so
secretive that no one will say how they fill their hours.

For the 230 others, the military staff has warmed to the idea of offering
distractions, if not rehabilitation.

Successive prison camp commanders flatly refused to teach the men English,
arguing they would use the skill to eavesdrop on their guards.

Now there's a contract English teacher. And an Arabic instructor teaches the
language of the Koran to Uighurs and Uzbeks awaiting a country to resettle them.

Art class was a natural. Captives have taken to drawing to pass the time alone
in their cramped cells. Geology classes seemed a good idea, too, he said, since
they're about earth and science -- not touchy topics, like the heavens and
politics.

"We really have some good artists among the detainees," says Zak, a U.S.
contractor who doesn't want the world to know his family name. "They draw
greeting cards for family. They draw weapons. They draw whatever. One time, one
detainee drew the world's map."

Weapons? "They draw whatever they want," he said. "You can't stop a detainee
from thinking."

Defense lawyer Kristin Wilhelm reacted to plans for art classes with disdain.

A year and a half ago, she said, a Guantanamo client named Suleiman al Nahdi,
now 33, sketched greeting cards for people at her Atlanta law firm -- only to
have military censors stamp them SECRET and stash them in a vault. She appealed
and got them declassified.

"It was always my view that the government was afraid to allow the drawings to
be released because it humanized my client," said Wilhelm, noting that he has
been cleared to return home.

His release now hangs on his homeland, Yemen, reaching a repatriation agreement
with Washington.

Wilhelm observed, dryly, that the nascent liberal arts program now "reflects
that these individuals are humans and should be permitted to express themselves
through the use of art. Too bad it took seven years."

Still, camp commanders won't be offering arts classes that require sharp
objects.

"We keep it simple," says Zak. "Give them 12 crayons."

And, so, solo pursuits are still a focus.

Copies of Al Ahram newspaper will soon circulate in Camps 5 and 6, if the camps'
Egyptian-born librarian, Mohammed al Abdel Aal, makes good on his plan.

It would serve as an alternative to what commanders call the DNN -- Detainee
News Network -- in which the captives pass between the cells whatever tidbits
they get from their lawyers and guards.

On Election Night, says Zak, the results swept through the camps so swiftly the
captives were chanting "Obama, Obama, Obama."

Books about Islam are favorites, prescreened to make sure they have moderate
messages. An Arabic copy of Richard Nixon's Victory Without War is popular, says
the librarian.

"I give them the books to give them a good education, to show them a life better
than they came from," explains Abdel Aal, who studied Egyptology before marrying
an American and moving to the United States.

FBI agents found him at a Food Lion in West Virginia, he said, and enlisted him
as a contract translator. "I'm not the one who brings them here," he says,
displaying the personality he peddles with his books on the cellblocks. "I'm not
the one who takes them out of here."

By the time workers unstring the Christmas lights at a downtown McDonald's, a
Puerto Rican National Guard contingent will have relieved soldiers from New
Mexico. A Florida National Guard unit has already been tapped next year to
replace Wisconsin troops who produce a weekly newsletter.

Like the windmills high above the base on John Paul Jones Hill, the prison camps
were once a source of pride and fascination -- a Pentagon outpost of the war on
terrorism where day-trippers from Washington could visit the camps and be home
for dinner.

Now they're just there.

They occupy a sliver of the base.

Last week a lone reporter attended the war court arraignment of Mohammed Hashim,
an illiterate 32-year-old Afghan accused of spying on U.S. troops in his
homeland. "We're moving forward. The mission continues," says Army Col. Bruce
Pagel, the Pentagon's deputy chief prosecutor for war crimes. "We're not
allowing ourselves, within the bounds of reason, to become distracted."

'ENDURING MISSION'

Still, should the military empty the prison camps -- send some men home, others
to the U.S. for trial -- Navy commanders like to note that the century-old base
itself has "an enduring mission."

There's a landing strip for American military and intelligence aircraft hunting
drug traffickers and Florida-bound balseros. There's the port where, in
September, the USS Kearsarge resupplied for relief efforts in hurricane-stricken
Haiti.

Often, this base houses about 30 Cubans and Haitians picked up at sea. They live
in renovated barracks, eat in Navy cafeterias and bag groceries at the
commissary for tips while U.S. diplomats seek another country to resettle them.

Asylum-seekers here cannot go to the United States under a Clinton
administration disincentive plan to discourage Cubans from wading through the
minefield to reach the base as a way-station to Miami.

So should the alleged al Qaeda members go elsewhere, there's still plenty to do,
says Navy Cmdr. Pauline Storum. "The calls to 'close Guantanamo' refer only to
the closure of the detention operations conducted here," says Storum, the
detention center's public affairs officer. "Operations at Naval Station
Guantanamo continue to have enduring strategic value, as they have for more than
100 years."

*


New York Times --

November 20, 2008

JUDGE ORDERS FIVE DETAINEES FREED FROM GUANTANAMO

by William Glaberson

http://www.nytimes.com/2008/11/21/us/21guantanamo.html?hp

In the first hearing on the government's evidence for holding detainees at the
Guantanamo Bay detention camp for nearly seven years, a federal judge ruled on
Thursday that five prisoners were being held an unlawfully and ordered their
release.

The case, involving six Algerians detained in Bosnia in 2001, was an important
test of the Bush administration's detention policies, which critics have long
argued swept up innocent men and low-level foot soldiers along with high-level
and hardened terrorists.

The hearings for the Algerian men, in which all evidence was heard in
proceedings closed to the public, were the first in which the Justice Department
presented its full justification for holding specific detainees since the
Supreme Court ruled in June that the prisoners have a constitutional right to
contest their imprisonment in habeas corpus suits.

Ruling from the bench, Judge Richard J. Leon of Federal District Court in
Washington said that the information gathered on the men had been sufficient to
hold them for intelligence purposes, but was not strong enough in court.

"To rest on so thin a reed would be inconsistent with this court's obligation,"
he said. He directed that the five men be released "forthwith" and urged the
government not to appeal.

Judge Leon, who was appointed by President Bush, had been expected to be
sympathetic to the government. In 2005, he ruled that the men had no habeas
corpus rights.

The decision, lawyers said, is likely to be seen as a major judicial repudiation
of the Bush administration's effort to use the detention center at the American
naval base at Guantanamo Bay, Cuba, as a way to avoid scrutiny by American
judges. President-elect Barack Obama has said he will close the prison.

Lawyers for the detainees said the ruling was a vindication of their arguments
for years. "The decision by Judge Leon lays bare the scandalous basis on which
Guantanamo has been based -- slim evidence of dubious quality," said Zachary
Katznelson, legal director at Reprieve, a British legal group that represents
many Guantanamo detainees. "This is a tough, no-nonsense judge."

Because of the Bush administration's claims that most of the evidence against
the men was classified, Judge Leon ordered the entire case was to be heard in a
closed courtroom after brief opening statements on Nov. 5.

The government argued that the six Algerians, who were residents of Bosnia when
they were first detained in 2001, were planning to go to Afghanistan to fight
the United States and that one of them was a member of Al Qaeda.

The five men who the judge ordered freed included Lakhdar Boumediene, for whom
the landmark Supreme Court ruling in June was named.

It was not immediately clear whether the government would appeal, but some
lawyers said they considered an appeal likely.

The one detainee Judge Leon found to be lawfully held was Bensayah Belkacem, who
has been described by intelligence agencies as a leading Al Qaeda operative in
Bosnia.

The case has become an example of the Bush administration's pattern of changing
legal strategy in its long legal war over Guantanamo, as the courts have
scrutinized its justifications for its detention policies in general and its
reasons for holding individual detainees.

In 2002, President Bush made the government's allegations against the men a
showcase of his administration's anti-terrorism approach. He said in his state
of the union address that the six men had been planning a bomb attack on the
United States Embassy in Sarajevo, Bosnia. Last month, though, Department of
Justice lawyers said they were no longer relying on those accusations to justify
the men's detention.

The habeas corpus cases have moved slowly despite the Supreme Court's decision
in June that directed federal judges in Washington to act quickly on the cases,
after nearly seven years of detention for many of the 250 men still held in
Guantanamo.

Another district court judge in Washington, Ricardo M. Urbina, ordered the
release of 17 other detainees last month, all ethnic Uighurs from western China.
But in that case, he did not hold a hearing on the evidence, because the
government conceded that the men were not enemy combatants.

The Justice Department won a stay of Judge Urbina's release order and is
appealing it. Arguments in that case are scheduled for Monday in the United
States Courts of Appeals in Washington.

Separately, this week the Justice Department filed legal motions seeking to stop
more than 100 of the other Guantanamo habeas corpus cases from proceeding now,
in a move that detainees lawyers said was a government effort to avoid further
court scrutiny.

Department of Justice lawyers argued in motions filed Tuesday that there were
flaws in the ground rules of other judges for the Guantanamo cases that would
require the government, among other things, to reveal classified evidence.

Detainees' lawyers said the ruling on Thursday by Judge Leon would indicate to
other judges that they should be skeptical of the government's efforts to delay
hearings.

P. Sabin Willett, a lawyer for the Uighurs, said that Judge Leon's decision
"sends a powerful message to all the other judges to get these cases moving."

J. Wells Dixon, a detainees' lawyer at the Center for Constitutional Rights,
said the ruling made clear that Guantanamo Bay had failed. But, he said,
"Justice comes too late for these five men."

[ Bernie Becker contributed reporting from Washington. ]

*


The Telegraph (UK) --

November 17, 2008

LORD GOLDSMITH'S ADVICE ON IRAQ INVASION 'FLAWED', SAYS FORMER TOP JUDGE

Lord Bingham believes there was 'a serious violation of international law and
the rule of law' by Britain. But the former Attorney General stands by his
advice to Tony Blair in 2003 that military action against Iraq was lawful. And
Jack Straw, the Lord Chancellor, also challenges Lord Bingham's view.

by Joshua Rozenberg

http://www.telegraph.co.uk/news/newstopics/lawreports/joshuarozenberg/3471950/
Lord-Goldsmiths-advice-on-Iraq-invasion-flawed-says-former-top-judge.html

Lord Goldsmith's advice to ministers on Britain's invasion of Iraq was "flawed
in two fundamental respects", Britain's most respected former judge said
tonight.

Lord Bingham KG, who retired in September as senior law lord, said that -- if he
was right in concluding that the 2003 invasion had been unauthorised -- "there
was, of course, a serious violation of international law and of the rule of
law".

It is thought to be the first time that Lord Bingham has expressed his views
about the legal advice given to Tony Blair by the former Attorney General. The
issue never came before Lord Bingham while he was sitting as a judge.

But Lord Goldsmith, who had been shown an advance text of Lord Bingham's
remarks, made it clear today that he stood by his advice. And the former
Attorney General was supported this afternoon by the Lord Chancellor, Jack
Straw.

Lord Bingham was delivering the annual Grotius Lecture, this year marking the
50th anniversary of the British Institute of International and Comparative Law.
He was speaking as chairman of the institute, an independent research body that
promotes the rule of law in international affairs.

In Lord Bingham's view, the effect of unilateral action by Britain, the US and
some other countries had been to undermine the foundation on which the post-1945
consensus had been constructed. This was the prohibition of force -- except in
self-defence or, perhaps, to avert an impending humanitarian catastrophe --
unless formally authorised by the UN Security Council.

Delivering a wide-ranging lecture on the importance of complying with
international law, Lord Bingham summarised the former Attorney General's
reliance on three interrelated Security Council resolutions as authorising the
Iraq invasion. In his full written advice to the Prime Minister of March 7, 2003
-- not made public at the time -- Lord Goldsmith QC considered that resolution
1441 could, in principle, revive the authority to use force contained in
resolution 678 and suspended, but not revoked, by resolution 687. At that time,
though, it was not clear to him whether the use of force required merely a
discussion by the Security Council or a further resolution.

Summarising Lord Goldsmith's reasoning, Lord Bingham said: "A reasonable case
could be made that resolution 1441 was capable in principle of reviving the
authorisation in resolution 678, but the argument could only be sustainable if
there were 'strong factual grounds' for concluding that Iraq had failed to take
the final opportunity. There would need to be 'hard evidence'."

Ten days later, in a Parliamentary written answer issued on March 17, 2003, Lord
Goldsmith said it was "plain" that Iraq had failed to comply with its
disarmament obligations and was therefore in material breach of resolution 687.
Accordingly, the authority to use force under resolution 678 had revived.

The former judge then quoted the conclusion to Lord Goldsmith's Parliamentary
statement: "Resolution 1441 would, in terms, have provided that a further
decision of the Security Council to sanction force was required if that had been
intended. Thus, all that resolution 1441 requires is reporting to and discussion
by the Security Council of Iraq's failures, but not an express further decision
to authorise force."

Lord Bingham was not impressed. "This statement was, I think flawed in two
fundamental respects," he said.

"First, it was not plain that Iraq had failed to comply in a manner justifying
resort to force and there were no strong factual grounds or hard evidence to
show that it had: Hans Blix and his team of weapons inspectors had found no
weapons of mass destruction, were making progress and expected to complete their
task in a matter of months.

"Secondly, it passes belief that a determination whether Iraq had failed to
avail itself of its final opportunity was intended to be taken otherwise than
collectively by the Security Council."

The former senior law lord noted that Lord Goldsmith's "revival" argument had
been ill-received. Lord Alexander QC described it as "unconvincing". Prof
Philippe Sands QC called it a "bad argument". And Prof Vaughan Lowe QC described
it as "fatuous".

Commenting on this "serious violation of international law", Lord Bingham said:
"The moment that a state treats the rules of international law as binding on
others but not on itself, the compact on which the law rests is broken. Quoting
Prof Lowe again, he said it was "the difference between the role of world
policeman and world vigilante".

After reading a draft of Lord Bingham's speech, Lord Goldsmith said he remained
of the view that his conclusion was correct. "I would not have given that advice
if it were not genuinely my view," he told the telegraph.co.uk law page.

Why, though, did his views appear to harden between March 7 and March 17?
"Having rightly expressed caution in my earlier advice, I had formed the view
during the week before the 17th that it was my job to express a clear judgment
one way or the other."

Civil servants and military commanders had wanted a clear answer. "Either it was
lawful or it was not," Lord Goldsmith explained. "It could not be a little bit
lawful."

Having decided that military action was lawful, the Attorney General decided
that he should express his view "shortly but clearly".

Lord Bingham had said it was not plain that Iraq had failed to comply with
resolution 678. But that was understood by Lord Goldsmith to have been Tony
Blair's view at the time, based on intelligence reports. Resolution 1441 was not
about finding weapons of mass destruction.

And Lord Goldsmith also took issue with Lord Bingham's view that a decision on
whether Iraq had failed to take up its final opportunity was one to be reached
collectively by the United Nations.

Having spoken to those who negotiated the terms of the resolution, Lord
Goldsmith was sure that the need for a further determination had been
deliberately omitted. US diplomats would not have agreed to resolution 1441 if
they thought it allowed other members of the Security Council to block military
action by requiring a second resolution that might be vetoed.

This afternoon, Lord Bingham amended the text of his speech to record -- though
not adopt -- Lord Goldsmith's concerns. He said: "I should make it plain that Mr
Jack Straw, Foreign Secretary in March 2003, and Lord Goldsmith, Attorney
General at the time, to whom my text was very recently copied, challenge the
conclusion I have expressed. Lord Goldsmith emphasises that he believed the
advice which he gave at the time to be correct -- which I have not challenged --
and remains of that view."

After summarising the former Attorney General's comments he continued: "Lord
Goldsmith stresses that this was his genuine view which -- I repeat -- I have
not challenged. Mr Straw agrees with what Lord Goldsmith says. The negotiating
history and wording of Security Council resolution 1441 shows, he says, that it
was not the intention of the Security Council, nor was it so expressed, that a
decision on material breach had to be decided by the Security Council. This may
be surprising, he comments, but it is true."

Moving on to consider Britain's role as an occupying power in Iraq, Lord Bingham
said its record had been "sullied by a number of incidents, most notably the
shameful beating to death of Mr Baha Mousa in Basra". However, such breaches
were not the result of deliberate government policy and the victims' rights had
been recognised.

"This contrasts with the unilateral decisions of the US government that the
Geneva Conventions did not apply to the detention conditions in Guantanamo Bay,
Cuba, or to trial of al-Qaeda or Taliban prisoners by military commissions, that
al-Qaeda suspects should be denied the rights of both prisoners of war and
criminal suspects and that torture should be redefined, contrary to the Torture
Convention and the consensus of international opinion, to connote pain, where
physical, 'of an intensity akin to that which accompanies serious physical
injury such as death or organ failure'."

But despite criticising the "cynical lack of concern for international legality
among some top officials in the Bush administration", Lord Bingham managed an
optimistic conclusion. Most transactions governed by international law proceeded
smoothly on the strength of known and accepted rules, he stressed.

And although there had been little public interest in the legality of Britain's
earlier military interventions such as the Suez Crisis of 1956, the issue of
whether the Iraq invasion was lawful had loomed larger than ever before --
"perhaps because of widespread doubt in this country about the wisdom and
necessity of going to war".

Prophecy was always perilous, Lord Bingham admitted. But it was "perhaps
unlikely that states chastened by their experience in Iraq will be eager to
repeat it".

While they had not been "hauled before the International Court of Justice or any
other tribunal to answer for their actions, they have been arraigned at the bar
of world opinion, and been judged unfavourably, with resulting damage to their
standing and influence".

He concluded: "If the daunting challenges now facing the world are to be
overcome, it must be through the medium of rules, internationally agreed,
internationally implemented and, if necessary, internationally enforced. That is
what the rule of law requires in the international order."

*


The Guardian (UK) --

November 18, 2008

TOP JUDGE: US AND UK ACTED AS 'VIGILANTES' IN IRAQ INVASION

Former senior law lord condemns 'serious violation of international law'

by Richard Norton-Taylor

http://www.guardian.co.uk/world/2008/nov/18/iraq-us-foreign-policy

One of Britain's most authoritative judicial figures last night delivered a
blistering attack on the invasion of Iraq, describing it as a serious violation
of international law, and accusing Britain and the US of acting like a "world
vigilante".

Lord Bingham, in his first major speech since retiring as the senior law lord,
rejected the then attorney general's defence of the 2003 invasion as
fundamentally flawed.

Contradicting head-on Lord Goldsmith's advice that the invasion was lawful,
Bingham stated: "It was not plain that Iraq had failed to comply in a manner
justifying resort to force and there were no strong factual grounds or hard
evidence to show that it had." Adding his weight to the body of international
legal opinion opposed to the invasion, Bingham said that to argue, as the
British government had done, that Britain and the US could unilaterally decide
that Iraq had broken UN resolutions "passes belief".

Governments were bound by international law as much as by their domestic laws,
he said. "The current ministerial code," he added "binding on British ministers,
requires them as an overarching duty to 'comply with the law, including
international law and treaty obligations'."

The Conservatives and Liberal Democrats continue to press for an independent
inquiry into the circumstances around the invasion. The government says an
inquiry would be harmful while British troops are in Iraq. Ministers say most of
the remaining 4,000 will leave by mid-2009.

Addressing the British Institute of International and Comparative Law last
night, Bingham said: "If I am right that the invasion of Iraq by the US, the UK,
and some other states was unauthorised by the security council there was, of
course, a serious violation of international law and the rule of law.

"For the effect of acting unilaterally was to undermine the foundation on which
the post-1945 consensus had been constructed: the prohibition of force (save in
self-defence, or perhaps, to avert an impending humanitarian catastrophe) unless
formally authorised by the nations of the world empowered to make collective
decisions in the security council ..."

The moment a state treated the rules of international law as binding on others
but not on itself, the compact on which the law rested was broken, Bingham
argued. Quoting a comment made by a leading academic lawyer, he added: "It is,
as has been said, 'the difference between the role of world policeman and world
vigilante'."

Bingham said he had very recently provided an advance copy of his speech to
Goldsmith and to Jack Straw, foreign secretary at the time of the invasion of
Iraq. He told his audience he should make it plain they challenged his
conclusions.

Both men emphasised that point last night by intervening to defend their views
as consistent with those held at the time of the invasion. Goldsmith said in a
statement: "I stand by my advice of March 2003 that it was legal for Britain to
take military action in Iraq. I would not have given that advice if it were not
genuinely my view. Lord Bingham is entitled to his own legal perspective five
years after the event." Goldsmith defended what is known as the "revival
argument" - namely that Saddam Hussein had failed to comply with previous UN
resolutions which could now take effect. Goldsmith added that Tony Blair had
told him it was his "unequivocal view" that Iraq was in breach of its UN
obligations to give up weapons of mass destruction.

Straw said last night that he shared Goldsmith's view. He continued: "However
controversial the view that military action was justified in international law
it was our attorney general's view that it was lawful and that view was widely
shared across the world."

Bingham also criticised the post-invasion record of Britain as "an occupying
power in Iraq". It is "sullied by a number of incidents, most notably the
shameful beating to death of Mr Baha Mousa [a hotel receptionist] in Basra [in
2003]", he said.

Such breaches of the law, however, were not the result of deliberate government
policy and the rights of victims had been recognised, Bingham observed.

He contrasted that with the "unilateral decisions of the US government" on
issues such as the detention conditions in Guantanamo Bay, Cuba.

After referring to mistreatment of Iraqi detainees in Abu Ghraib, Bingham added:
"Particularly disturbing to proponents of the rule of law is the cynical lack of
concern for international legality among some top officials in the Bush
administration."

*


New York Times --

November 12, 2008

BUSH, OUT OF OFFICE, COULD OPPOSE INQUIRIES

by Charlie Savage

http://www.nytimes.com/2008/11/13/washington/13inquire.html

WASHINGTON -- When a Congressional committee subpoenaed Harry S. Truman in 1953,
nearly a year after he left office, he made a startling claim: Even though he
was no longer president, the Constitution still empowered him to block
subpoenas.

"If the doctrine of separation of powers and the independence of the presidency
is to have any validity at all, it must be equally applicable to a president
after his term of office has expired," Truman wrote to the committee.

Congress backed down, establishing a precedent suggesting that former presidents
wield lingering powers to keep matters from their administration secret. Now, as
Congressional Democrats prepare to move forward with investigations of the Bush
administration, they wonder whether that claim may be invoked again.

"The Bush administration overstepped in its exertion of executive privilege, and
may very well try to continue to shield information from the American people
after it leaves office," said Senator Sheldon Whitehouse, Democrat of Rhode
Island, who sits on two committees, Judiciary and Intelligence, that are
examining aspects of Mr. Bush's policies.

Topics of open investigations include the harsh interrogation of detainees, the
prosecution of former Gov. Don Siegelman of Alabama, secret legal memorandums
from the Justice Department's Office of Legal Counsel and the role of the former
White House aides Karl Rove and Harriet E. Miers in the firing of federal
prosecutors.

Mr. Bush has used his executive powers to block Congressional requests for
executive branch documents and testimony from former aides. But investigators
hope that the Obama administration will open the filing cabinets and withdraw
assertions of executive privilege that Bush officials have invoked to keep from
testifying.

"I intend to ensure that our outstanding subpoenas and document requests
relating to the U.S. attorneys matter are enforced," said Representative John
Conyers Jr., Democrat of Michigan and chairman of the House Judiciary Committee.
"I am hopeful that progress can be made with the coming of the new
administration."

Also, two advocacy groups, the American Civil Liberties Union and Human Rights
First, have prepared detailed reports for the new administration calling for
criminal investigations into accusations of abuse of detainees.

It is not clear, though, how a President Barack Obama will handle such requests.
Legal specialists said the pressure to investigate the Bush years would raise
tough political and legal questions.

Because every president eventually leaves office, incoming chief executives have
an incentive to quash investigations into their predecessor's tenure. Mr. Bush
used executive privilege for the first time in 2001, to block a subpoena by
Congressional Republicans investigating the Clinton administration.

In addition, Mr. Obama has expressed worries about too many investigations. In
April, he told The Philadelphia Daily News that people needed to distinguish
"between really dumb policies and policies that rise to the level of criminal
activity."

"If crimes have been committed, they should be investigated," Mr. Obama said,
but added, "I would not want my first term consumed by what was perceived on the
part of Republicans as a partisan witch hunt, because I think we've got too many
problems we've got to solve."

But even if his administration rejects the calls for investigations, Mr. Obama
cannot control what the courts or Congress do. Several lawsuits are seeking
information about Bush policies, including an Islamic charity's claim that it
was illegally spied on by Mr. Bush's program on wiretapping without warrants.

And Congressional Democrats say that they are determined to pursue their
investigations -- and that they expect career officials to disclose other issues
after the Bush administration leaves. "We could spend the entire next four years
investigating the Bush years," Mr. Whitehouse said.

But if Mr. Obama decides to release information about his predecessor's tenure,
Mr. Bush could try to invoke executive privilege by filing a lawsuit, said Peter
Shane, a law professor at Ohio State University.

In that case, an injunction would most likely be sought ordering the Obama
administration not to release the Bush administration's papers or enjoining Mr.
Bush's former aides from testifying. The dispute would probably go to the
Supreme Court, Mr. Shane said.

The idea that ex-presidents may possess residual constitutional powers to keep
information secret traces back to Truman.

In November 1953, after Dwight D. Eisenhower became president, the House Un-
American Activities Committee subpoenaed Truman to testify about why he had
appointed a suspected Communist to the International Monetary Fund.

Truman decided not to comply and asked his lawyer, Samuel I. Rosenman, for help.
But there was little time for research.

Edward M. Cramer, a young associate at Mr. Rosenman's law firm, recalled being
summoned with two colleagues to their boss's office at 6 p.m. and told to come
up with something. The next morning, they helped dictate Truman's letter telling
the panel he did not have to testify -- or even appear at the hearing.

"I think, legally, we were wrong" about whether Truman had to show up, Mr.
Cramer, now 83, said in a phone interview from his home in New York.

But the committee did not call the former president's bluff. It dropped the
matter, and Truman's hastily devised legal claim became a historical precedent.

In 1973, President Nixon cited Truman's letter when he refused to testify or
give documents to the committee investigating the Watergate scandal.

Mr. Cramer recalled, "Nixon used it, and we said 'Oh, Jesus, what have we
done?' "

The first judicial backing for the idea that former presidents wield executive
privilege powers came in 1977, as part of a Supreme Court ruling in a case over
who controlled Nixon's White House files. The decision suggested that Nixon
might be able to block the release of papers in the future. But it offered few
details, and Nixon never sought to do so.

In 1989 and 1990, judges presiding over criminal trials related to the Iran-
contra affair blocked requests by defendants to make former President Ronald
Reagan testify and release his diaries.

But the Supreme Court has never made clear how far a former president may go in
trying to block Congressional demands for documents and testimony -- or what
happens if a president disagrees with a predecessor about making information
public.

"There is no relevant precedent on the books," Mr. Shane said.

*


Wall Sreet Journal --

October 17, 2008
NEW SENTENCE IS SOUGHT FOR BIN LADEN'S DRIVER
by Jess Bravin

WASHINGTON -- The Bush administration wants the military jury that sentenced
Osama bin Laden's former driver to reconvene for new deliberations that could
add five years to his scheduled release date of Dec. 31.

In August, a six-officer panel convicted Salim Hamdan of providing material
support to terrorism. It acquitted him of a more serious conspiracy charge and
sentenced him to four months and 22 days beyond the time he had already served
-- far less than the 30 years prosecutors sought.

Mr. Hamdan's sentence surprised the Bush administration, which had argued that
prisoners like him presented such a threat to national security that they could
not be tried on U.S. soil or in federal court. Jurors said the government failed
to prove Mr. Hamdan was more than a minor functionary in al Qaeda.

Prosecutor John Murphy, a Justice Department attorney, initially said the
government accepted the decision and called it "a victory for the system." But
on Sept. 24, prosecutors filed a motion asking that the sentence be
reconsidered. The Defense Department released the document Thursday, after
inquiries by The Wall Street Journal.

The motion contends that the military judge, Navy Capt. Keith Allred, lacked
authority to credit Mr. Hamdan for the time he served in pretrial confinement.
Without such credit, Mr. Hamdan, who was captured in November 2001, would face
an extra five years.

The chief Guantanamo prosecutor, Col. Lawrence Morris, said the government wants
to clarify that unlike courts-martial, military commissions cannot credit
defendants for time served.

"The length of the sentence is a matter of indifference to us," Col. Morris
said. He said that if the jury still wants Mr. Hamdan released on Dec. 31, it
could resentence him to however many days remained until then.

Lawyers for Mr. Hamdan opposed the motion, and said there was no legal basis to
reconsider the sentence.

"In short, the administration's position is that it should have two
opportunities to seek a sentence that it deems long enough," they said in a
legal filing.

"I really am at a loss for words," said Lt. Cmdr. Brian Mizer, Mr. Hamdan's
military defense lawyer. "The government, having stacked the deck, is now
complaining about the hand it was dealt."

A civilian lawyer for Mr. Hamdan, Harry Schneider, said he believed the U.S.
motion "is an effort to postpone the release date into a new administration."
During deliberations, jurors asked what credit Mr. Hamdan would receive, and
fashioned a sentence that set his release date precisely on Dec. 31.
Hardy Vieux, a former Navy officer and a lawyer with the firm Blank Rome in
Washington, said military judges routinely grant credit for pretrial
confinement. "It's a fairness issue," he says.

For their part, defense lawyers have sought to hasten Mr. Hamdan's release date,
arguing during trial that he deserves three days of credit for each day of the
two years he spent in solitary confinement. Capt. Allred has yet to rule on that
request.

Regardless of his criminal sentence, the government maintains it can hold Mr.
Hamdan indefinitely as an unlawful enemy combatant. The government has not
disclosed its plans for Mr. Hamdan, defense lawyers said.

*


Washington Post --

October 15, 2008

CIA TACTICS ENDORSED IN SECRET MEMOS
Waterboarding Got White House Nod

by Joby Warrick

http://www.washingtonpost.com/wp-dyn/content/
article/2008/10/14/AR2008101403331.html

The Bush administration issued a pair of secret memos to the CIA in 2003 and
2004 that explicitly endorsed the agency's use of interrogation techniques such
as waterboarding against al-Qaeda suspects -- documents prompted by worries
among intelligence officials about a possible backlash if details of the program
became public.

The classified memos, which have not been previously disclosed, were requested
by then-CIA Director George J. Tenet more than a year after the start of the
secret interrogations, according to four administration and intelligence
officials familiar with the documents. Although Justice Department lawyers,
beginning in 2002, had signed off on the agency's interrogation methods, senior
CIA officials were troubled that White House policymakers had never endorsed the
program in writing.

The memos were the first -- and, for years, the only -- tangible expressions of
the administration's consent for the CIA's use of harsh measures to extract
information from captured al-Qaeda leaders, the sources said. As early as the
spring of 2002, several White House officials, including then-national security
adviser Condoleezza Rice and Vice President Cheney, were given individual
briefings by Tenet and his deputies, the officials said. Rice, in a statement to
congressional investigators last month, confirmed the briefings and acknowledged
that the CIA director had pressed the White House for "policy approval."

The repeated requests for a paper trail reflected growing worries within the CIA
that the administration might later distance itself from key decisions about the
handling of captured al-Qaeda leaders, former intelligence officials said. The
concerns grew more pronounced after the revelations of mistreatment of detainees
at the Abu Ghraib prison in Iraq, and further still as tensions grew between the
administration and its intelligence advisers over the conduct of the Iraq war.

"It came up in the daily meetings. We heard it from our field officers," said a
former senior intelligence official familiar with the events. "We were already
worried that we" were going to be blamed.

A. John Radsan, a lawyer in the CIA general counsel's office until 2004,
remembered the discussions but did not personally view the memos the agency
received in response to its concerns. "The question was whether we had enough
'top cover,' " Radsan said.

Tenet first pressed the White House for written approval in June 2003, during a
meeting with members of the National Security Council, including Rice, the
officials said. Days later, he got what he wanted: a brief memo conveying the
administration's approval for the CIA's interrogation methods, the officials
said.

Administration officials confirmed the existence of the memos, but neither they
nor former intelligence officers would describe their contents in detail because
they remain classified. The sources all spoke on the condition of anonymity
because they were not cleared to discuss the events.

The second request from Tenet, in June 2004, reflected growing worries among
agency officials who had just witnessed the public outcry over the Abu Ghraib
scandal. Officials who held senior posts at the time also spoke of deteriorating
relations between the CIA and the White House over the war in Iraq -- a rift
that prompted some to believe that the agency needed even more explicit proof of
the administration's support.

"The CIA by this time is using the word 'insurgency' to describe the Iraq
conflict, so the White House is viewing the agency with suspicion," said a
second former senior intelligence official.

As recently as last month, the administration had never publicly acknowledged
that its policymakers knew about the specific techniques, such as waterboarding,
that the agency used against high-ranking terrorism suspects. In her
unprecedented account to lawmakers last month, Rice, now secretary of state,
portrayed the White House as initially uneasy about a controversial CIA plan for
interrogating top al-Qaeda suspects.

After learning about waterboarding and similar tactics in early 2002, several
White House officials questioned whether such harsh measures were "effective and
necessary . . . and lawful," Rice said. Her concerns led to an investigation by
the Justice Department's criminal division into whether the techniques were
legal.

But whatever misgivings existed that spring were apparently overcome. Former and
current CIA officials say no such reservations were voiced in their presence.

In interviews, the officials recounted a series of private briefings about the
program with members of the administration's security team, including Rice and
Cheney, followed by more formal meetings before a larger group including then-
Attorney General John D. Ashcroft, then-White House counsel Alberto R. Gonzales
and then-Defense Secretary Donald H. Rumsfeld. None of the officials recalled
President Bush being present at any of the discussions.

Several of the key meetings have been previously described in news articles and
books, but Rice last month became the first Cabinet-level official to publicly
confirm the White House's awareness of the program in its earliest phases. In
written responses to questions from the Senate Armed Services Committee, Rice
said Tenet's description of the agency's interrogation methods prompted her to
investigate further to see whether the program violated U.S. laws or
international treaties, according to her written responses, dated Sept. 12 and
released late last month.

"I asked that . . . Ashcroft personally advise the NSC principles whether the
program was lawful," Rice wrote.

Current and former intelligence officials familiar with the briefings described
Tenet as supportive of enhanced interrogation techniques, which the officials
said were developed by CIA officers after the agency's first high-level captive,
al-Qaeda operative Zayn al-Abidin Muhammed Hussein, better known as Abu Zubaida,
refused to cooperate with interrogators.

"The CIA believed then, and now, that the program was useful and helped save
lives," said a former senior intelligence official knowledgeable about the
events. "But in the agency's view, it was like this: 'We don't want to continue
unless you tell us in writing that it's not only legal but is the policy of the
administration.' "

One administration official familiar with the meetings said the CIA made such a
convincing case that no one questioned whether the methods were necessary to
prevent further terrorist attacks.

"The CIA had the White House boxed in," said the official. "They were saying,
'It's the only way to get the information we needed, and -- by the way -- we
think there's another attack coming up.' It left the principals in an extremely
difficult position and put the decision-making on a very fast track."

But others who were present said Tenet seemed more interested in protecting his
subordinates than in selling the administration on a policy that administration
lawyers had already authorized.

"The suggestion that someone from CIA came in and browbeat everybody is
ridiculous," said one former agency official familiar with the meeting. "The CIA
understood that it was controversial and would be widely criticized if it became
public," the official said of the interrogation program. "But given the tenor of
the times and the belief that more attacks were coming, they felt they had to do
what they could to stop the attack."

The CIA's anxiety was partly fueled by the lack of explicit presidential
authorization for the interrogation program. A secret White House "memorandum of
notification" signed by Bush on Sept. 15, 2001, gave the agency broad authority
to wage war against al-Qaeda, including killing and capturing its members. But
it did not spell out how captives should be handled during interrogation.

But by the time the CIA requested written approval of its policy, in June 2003,
the population of its secret prisons had grown from one to nine, including
Khalid Sheik Mohammed, the alleged principal architect of the Sept. 11, 2001,
attacks. Three of the detainees had been subjected to waterboarding, which
involves strapping a prisoner to a board, covering his face and pouring water
over his nose and mouth to simulate drowning.

By the spring of 2004, the concerns among agency officials had multiplied, in
part because of shifting views among administration lawyers about what acts
might constitute torture, leading Tenet to ask a second time for written
confirmation from the White House. This time the reaction was far more reserved,
recalled two former intelligence officials.

"The Justice Department in particular was resistant," said one former
intelligence official who participated in the discussions. "They said it doesn't
need to be in writing."

Tenet and his deputies made their case in yet another briefing before the White
House national security team in June 2004. It was to be one of the last such
meetings for Tenet, who had already announced plans to step down as CIA
director. Author Jane Mayer, who described the briefing in her recent book, "The
Dark Side," said the graphic accounts of interrogation appeared to make some
participants uncomfortable. "History will not judge us kindly," Mayer quoted
Ashcroft as saying.

Participants in the meeting did not recall whether a vote was taken. Several
weeks passed, and Tenet left the agency without receiving a formal response.

Finally, in mid-July, a memo was forwarded to the CIA reaffirming the
administration's backing for the interrogation program. Tenet had acquired the
statement of support he sought.

[ Staff researcher Julie Tate contributed to this report. ]

*


Los Angeles Times --

October 12, 2008

GUANTANAMO PROSECUTOR WHO QUIT HAD 'GRAVE MISGIVINGS' ABOUT FAIRNESS

Convinced that key evidence was being withheld from the defense, Lt. Col. Darrel
J. Vandeveld went from being a 'true believer to someone who felt truly
deceived' by the tribunals.

by Josh Meyer

http://www.latimes.com/news/nationworld/world/
la-na-gitmo12-2008oct12,0,3624147.story

WASHINGTON -- Darrel J. Vandeveld was in despair. The hard-nosed lieutenant
colonel in the Army Reserve, a self-described conformist praised by his
superiors for his bravery in Iraq, had lost faith in the Guantanamo Bay war
crimes tribunals in which he was a prosecutor.

His work was top secret, making it impossible to talk to family or friends. So
the devout Catholic -- working away from home -- contacted a priest online.

Even if he had no doubt about the guilt of the accused, he wrote in an August e-
mail, "I am beginning to have grave misgivings about what I am doing, and what
we are doing as a country. . . .

"I no longer want to participate in the system, but I lack the courage to quit.
I am married, with children, and not only will they suffer, I'll lose a lot of
friends."

Two days later, he took the unusual step of reaching out for advice from his
opposing counsel, a military defense lawyer.

"How do I get myself out of this office?" Vandeveld asked Major David J.R. Frakt
of the Air Force Reserve, who represented the young Afghan Vandeveld was
prosecuting for an attack on U.S. soldiers -- despite Vandeveld's doubts about
whether Mohammed Jawad would get a fair trial. Vandeveld said he was seeking a
"practical way of extricating myself from this mess."

Last month, Vandeveld did just that, resigning from the Jawad case, the military
commissions overall and, ultimately, active military duty. In doing so, he has
become even more of a central figure in the "mess" he considers Guantanamo to
be.

Vandeveld is at least the fourth prosecutor to resign under protest. Questions
about the fairness of the tribunals have been raised by the very people charged
with conducting them, according to legal experts, human rights observers and
current and former military officials.

Vandeveld's claims are particularly explosive.

In a declaration and subsequent testimony, he said the U.S. government was not
providing defense lawyers with the evidence it had against their clients,
including exculpatory information -- material considered helpful to the defense.

Saying that the accused enemy combatants were more likely to be wrongly
convicted without that evidence, Vandeveld testified that he went from being a
"true believer to someone who felt truly deceived" by the tribunals. The system
in place at the U.S. military facility in Cuba, he wrote in his declaration, was
so dysfunctional that it deprived "the accused of basic due process and
subject[ed] the well-intentioned prosecutor to claims of ethical misconduct."

Army Col. Lawrence J. Morris, the chief prosecutor and Vandeveld's boss, said
the Office of Military Commissions provides "every scrap of paper and
information" to the defense. Morris said that Vandeveld was disgruntled because
his commanding officers disagreed with some of his legal tactics and that he
"never once" raised substantive concerns.

Morris said last week that he had no idea why Vandeveld had become so
antagonistic toward the tribunal process, adding that the lieutenant colonel's
outspokenness angered him because it was unfair and was a "broad blast at some
very ethical and hardworking people whose performances are being smudged
groundlessly."

Vandeveld, who was prosecuting seven tribunal cases -- nearly a third of pending
cases -- has declined to be interviewed about the particulars of the Jawad case.
But he did engage in a series of e-mails with The Times about his general
concerns, before being "reminded" last week that he could not talk to the press
until his release from active duty was final. In the future, he said, he plans
to speak out.

"I don't know how else the creeping rot of the commissions and the politics that
fostered and continued to surround them could be exposed to the curative powers
of the sunlight," he said. "I care not for myself; our enemies deserve nothing
less than what we would expect from them were the situations reversed. More than
anything, I hope we can rediscover some of our American values."

Some tribunal defense lawyers are preparing to call Vandeveld as a witness,
saying that his claims of systemic problems at Guantanamo, if true, could alter
the outcome of every pending case there -- and force the turnover of long-sought
information on coercive interrogation tactics and other controversial measures
used against their clients in the war on terrorism.

For years, defense lawyers and human rights organizations have raised similar
concerns in individual cases. "But we never had anyone on the inside who could
validate those claims," said Michael J. Berrigan, the deputy chief defense
counsel for the commissions.

Before the Sept. 11 terrorist attacks, Vandeveld led a relatively placid life
outside Erie, Pa., with his wife and four children. He worked as a senior deputy
state attorney general in charge of consumer protection in the region, and he
served on his local school board in Millcreek Township.

Anyone who knows him, Vandeveld, 48, told The Times, "will probably tell you
that I've been a conformist my entire life, and [that] to speak out against the
injustice wrought upon our worst enemies entailed a weather shift in my
worldview."

Mark Tanenbaum, an English teacher whose children are friends with Vandeveld's,
remembers talking to him while sitting around campfires at high school
gatherings. "We talked a lot about religion. I'm Jewish. We'd talk about faith,
value-based philosophy. We were kindred spirits in this.

"With him, it is all about doing the right thing."

Vandeveld, called to active duty after 9/11, received glowing evaluations as a
Pentagon legal advisor and judge advocate in Bosnia, the Horn of Africa and
Iraq. "An absolutely outstanding, first-class performance by an extraordinarily
gifted, intelligent, knowledgeable and experienced judge advocate, whose
potential is utterly unlimited," his commanding officer, Gen. Charles J. Barr,
wrote in his June 2006 evaluation. "One of the corps' best and brightest. Save
the very toughest jobs in the corps for him."

From his Iraq assignment, Vandeveld went to Guantanamo, where he began locking
horns over the Jawad case with Frakt -- a law professor at Western State
University in Fullerton and a former active-duty Air Force lawyer who
volunteered for the tribunals.

Frakt believed that his Afghan client was, at worst, a confused teen who had
been brainwashed and drugged by militant extremists who coerced him into
participating in a grenade-throwing incident with other older -- and more guilty
-- men. He insisted that the prosecution was withholding key information or not
obtaining it from those at the Pentagon, CIA and other U.S. agencies that had
investigated and interrogated Jawad.

Vandeveld believed that Jawad was a war criminal who had been taught by an Al
Qaeda-linked group to kill American troops and, if caught, to make up claims he
had been tortured and was underage. Vandeveld insisted that he had been
providing all evidence to the defense.

But by July, Vandeveld told The Times, he had grown increasingly troubled. He
kept finding sources of information and documents that appeared to bolster
Frakt's claims that evidence was being withheld -- including some favorable to
the defense, such as information suggesting that Jawad was underage, that he had
been drugged before the incident and that he had been abused by U.S. forces
afterward.

Vandeveld also was having difficulty obtaining authorization to release
documents in his possession to the defense.

On Aug. 5, he e-mailed Father John Dear, a well-known Jesuit peace activist.
Dear, who boasts of being arrested 75 times in protests, encouraged him to act,
saying he might "save lives and change the direction of the entire policy."

With Frakt pressing for the charges against Jawad to be dismissed due to
"outrageous government misconduct," Vandeveld proposed a plea agreement under
which Jawad, now thought to be 22, could return to Afghanistan for
rehabilitation. But his superiors rejected it, Vandeveld said.

By late August, he had told Frakt that there were other "disquieting" things
about Guantanamo and that his superiors were refusing to address them or to let
him quietly transfer out, Frakt said in an interview.

"Now might be a good time to take a courageous stand and expose some of the
'disquieting' things that you have alluded to, whatever they may be," Frakt
replied in a Sept. 2 e-mail, noting that there would soon be a change of
administrations in Washington.

"It wouldn't be a bad idea to distance yourself from a process that has become
largely discredited, or at least distinguish yourself as one of the good guys,
an ethical prosecutor trying to do the right thing," Frakt wrote.

On Sept. 9, Vandeveld e-mailed Dear to say he had resigned from the Guantanamo
military tribunals: "The reaction was the expected outrage and condemnation. I
have and will maintain my equanimity and, while scared for me and for my family,
know that Christ will watch over me."

That, however, was only the beginning. In late September -- after the military,
according to Frakt, initially tried to block it -- Vandeveld testified by video
link for the defense, saying he believed that insurmountable problems with the
tribunals might make them incapable of meting out justice fairly.

Morris said that Vandeveld is not qualified to speak about systemwide problems
at Guantanamo. But Frakt said that he is and that Vandeveld's testimony and
declaration only scratched the surface of his concerns, judging by their
extensive conversations and hundreds of e-mail exchanges.

"There is a lot more that he knows," Frakt said.

[ josh.meyer@latimes.com ]

*


Washington Post --

September 20, 2008

GUANTANAMO TRIALS' OVERSEER REASSIGNED
Many Angry That He Remains at All

By Peter Finn

http://www.washingtonpost.com/wp-dyn/content/
article/2008/09/19/AR2008091903507.html

The Pentagon transferred a controversial senior official involved in overseeing
the war-crimes trials at Guantanamo Bay into a new position yesterday, a move
that was anticipated after military judges in three separate cases barred Air
Force Brig. Gen. Thomas W. Hartmann from further participation in various
aspects of the military commissions.

Defense officials, who would discuss the reassignment only on the condition of
anonymity, said Hartmann's position became untenable after judges ruled that he
improperly influenced prosecutors by pressing them to move to trial quickly and,
over their objections, used evidence obtained from interrogations that involved
coercive techniques. Legal disputes over Hartmann's role threatened to delay
trials that the Bush administration wants to see up and running.

The Defense Department said in a statement yesterday that Hartmann will remain
involved as director of operations, planning and development for military
commissions. His deputy, Michael Chapman, will become the new legal adviser.

"Gen. Hartmann has driven the commissions process forward since his arrival in
July 2007," Daniel J. Dell'Orto, acting general counsel at the Pentagon, said in
a statement. "In no small part because of his efforts and his dedication, the
commissions are an active, operational legal system."


Hartmann was the legal adviser to the Convening Authority, a Pentagon office
that is required to exercise a neutral role in the commissions, overseeing but
not dictating the work of prosecutors and allocating resources to both the
prosecution and defense.

Military defense lawyers, human rights groups and a former lead prosecutor
expressed dismay that Hartmann will remain in a position that they say will
allow him to continue influencing cases.

"Elevating his deputy and leaving him in the process, I'm afraid, will be like
the Vladimir Putin-Dmitry Medvedev relationship where there's some real doubt
over who pulls the strings," said Col. Morris Davis, a former chief military
prosecutor at Guantanamo Bay, Cuba, drawing a parallel to the Russian prime
minister and the protege he helped elevate to the presidency.

Lt. Cmdr. William Kuebler, military defense counsel for Canadian defendant Omar
Khadr, said in a statement that "Hartmann's reassignment should be seen for what
it is -- a thin veneer for what amounts to being fired for his excessive and
unlawful interference in the military commissions process."

Human Rights Watch said that "instead of trying to clean up house, the Pentagon
has now moved a man accused of bullying prosecutors to bring cases to trial and
dismissing concerns about evidence being tainted by torture into a position
coordinating all matters relating to the commissions."

Hartmann dismissed the criticism, saying: "We are going to produce fair, open
and just trials."

Attorneys for some of the most high-profile defendants at Guantanamo Bay,
including Khalid Sheik Mohammed, the alleged operational mastermind behind the
Sept. 11, 2001, attacks, are still seeking to have the charges against their
clients dismissed because of Hartmann's actions. That is unlikely to happen,
defense attorneys said, but the cases could be delayed by another ruling against
Hartmann, which would be a blow to an administration in its final months.

Hearings on various issues will be held next week at Guantanamo Bay, including a
discovery motion on Hartmann's role in the Mohammed case.

Hartmann said the recent court rulings forced him and others at the Pentagon to
think about his role at the commissions, but he said they were not the reason
for his new assignment. He said that after the "explosive growth of the
commissions over the last 10 or 12 months," he and his superiors thought that
the "best way to run the system was to take this more senior leadership
position."

*


Washington Post --

September 15, 2008

CHENEY SHIELDED BUSH FROM CRISIS

By Barton Gellman

http://www.washingtonpost.com/wp-dyn/content/
article/2008/09/14/AR2008091401974.html

[ This is the second of two stories adapted from "Angler: The Cheney Vice
Presidency," to be published Tuesday by Penguin Press. Original source notes are
denoted in [brackets] throughout. ]

Vice President Cheney convened a meeting in the Situation Room at 3 p.m. on
Wednesday, March 10, 2004, with just one day left before the warrantless
domestic surveillance program was set to expire. Around him were National
Security Agency Director Michael V. Hayden, White House counsel Alberto R.
Gonzales and the Gang of Eight -- the four ranking members of the House and the
Senate, and the chairmen and vice chairmen of the intelligence committees.

Even now, three months into a legal rebellion at the Justice Department,
President Bush was nowhere in the picture [1]. He was stumping in the
battleground state of Ohio, talking up the economy.

With a nod from Cheney, Hayden walked through the program's vital mission [2].
Gonzales said top lawyers at the NSA and Justice had green-lighted the program
from the beginning. Now Attorney General John D. Ashcroft was in the hospital,
and James B. Comey, Ashcroft's deputy, refused to certify that the surveillance
was legal.

That was misleading at best. Cheney and Gonzales knew that Comey spoke for
Ashcroft as well. They also knew, but chose not to mention, that Jack L.
Goldsmith, chief of the Office of Legal Counsel at Justice, had been warning of
major legal problems for months.

More than three years later, Gonzales would testify that there was "consensus in
the room" from the lawmakers, "who said, 'Despite the recommendation of the
deputy attorney general, go forward with these very important intelligence
activities.' [3] " By this account -- disputed by participants from both parties
-- four Democrats and four Republicans counseled Cheney to press on with a
program that Justice called illegal.

In fact, Cheney asked the lawmakers a question that came close to answering
itself. Could the House and Senate amend surveillance laws without raising
suspicions that a new program had been launched? The obvious reply became a new
rationale for keeping Congress out.

The Bush administration had no interest in changing the law, according to U.S.
District Judge Royce C. Lamberth, chief of the federal government's special
surveillance court when the warrantless eavesdropping began.

"We could have gone to Congress, hat in hand, the judicial branch and the
executive together, and gotten any statutory change we wanted in those days, I
felt like," he said in an interview. "But they wanted to demonstrate that the
president's power was supreme."

* * *

Late that Wednesday afternoon, Bush returned from Cleveland. In early evening,
the phone rang at the makeshift FBI command center at George Washington
University Medical Center, where Ashcroft remained in intensive care. According
to two officials who saw the FBI logs, the president was on the line [4]. Bush
told the ailing Cabinet chief to expect a visit from Gonzales and White House
Chief of Staff Andrew H. Card Jr.

A Senate hearing in 2007 described some of what happened next. But much of the
story remained untold [5].

Alerted by Ashcroft's chief of staff, Comey, Goldsmith and FBI Director Robert
S. Mueller III raced toward the hospital, abandoning double-parked vehicles and
running up a stairwell as fast as their legs could pump.

Comey reached Ashcroft's bedside first. Goldsmith and his colleague Patrick F.
Philbin were close behind. Now came Card and Gonzales, holding an envelope. If
Comey would not sign the papers, maybe Ashcroft would.

The showdown with the vice president the day before had been excruciating, the
pressure "so great it could crush you like a grape," Comey said [6]. This was
worse.

Was Comey going to sit there and watch a barely conscious man make his mark? On
an order that he believed, and knew Ashcroft believed, to be unlawful?

Unexpectedly, Ashcroft roused himself. Previous accounts have said he backed his
deputy. He did far more than that. Ashcroft told the president's men he never
should have certified the program in the first place [7].

"You drew the circle so tight I couldn't get the advice that I needed," Ashcroft
said, according to Comey. He knew things now, the attorney general said, that he
should have been told before. Spent, he sank back in his bed.

Mueller arrived just after Card and Gonzales departed. He shared a private
moment with Ashcroft, bending over to hear the man's voice.

"Bob, I'm struggling," Ashcroft said.

"In every man's life there comes a time when the good Lord tests him," Mueller
replied. "You have passed your test tonight."

* * *

Goldsmith was out the door. He telephoned Ed Whelan, his deputy, who was at home
bathing his children.

"You've got to get into the office now," Goldsmith said. "Please draft a
resignation letter for me. I can't tell you why."

All hell was breaking loose at Justice. Lawyers streamed back from the suburbs,
converging on the fourth-floor conference room. Most of them were not cleared to
hear the details, but a decision began to coalesce: If Comey quit, none of them
were staying.

At the FBI, they called Mueller "Bobby Three Sticks," playfully tweaking the
Roman numerals in his fancy Philadelphia name. Late that evening, word began to
spread. It wasn't only Comey. Bobby Three Sticks was getting ready to turn in
his badge.

Justice had filled its top ranks with political loyalists. They hoped to see
Bush reelected. Had anyone explained to the president what was at stake?

Whelan pulled out his BlackBerry. He fired off a message to White House staff
secretary Brett Kavanaugh, a friend whose position gave him direct access to
Bush.

"I knew zilch about what the matter was, but I did know that lots of senior DOJ
folks were on the verge of resigning," Whelan said in an e-mail [8], declining
to discuss the subject further. "I thought it important to make sure that the
president was aware of that situation so that he could factor it in as he saw
fit."

Kavanaugh had no more idea than Whelan, but he passed word to Card.

The timing was opportune. Just about then, around 11 p.m., Comey responded to an
angry summons from the president's chief of staff. Whatever Card was planning to
say, he had calmed down suddenly.

What was all this he heard, Card asked, about quitting?

"I don't think people should try to get their way by threatening resignations,"
Comey replied [9]. "If they find themselves in a position where they're not
comfortable continuing, then they should resign."

"He obviously got the gist of what I was saying," Comey recalled.

It was close to midnight when Comey got home, long past the president's bedtime.
Bush had yet to learn that his government was coming apart.

* * *

Trouble was spreading. The FBI's general counsel, Valerie E. Caproni, and her
CIA counterpart, Scott W. Mueller, told colleagues they would leave if the
president reauthorized the program over Justice Department objections [10].

Assistant Attorney General Christopher A. Wray, who ran Justice's criminal
division, stopped Comey in a hallway.

"Look, I don't know what's going on, but before you guys all pull the rip cords,
please give me a heads-up so I can jump with you," he said.

James A. Baker, the counselor for intelligence, thought hard about jumping, too
[11]. Early on, he got wind of the warrantless eavesdropping and forced the
White House to disclose it to Lamberth. Later, Baker told Lamberth's successor
that he could not vouch that the Bush administration was honoring its promise to
keep the chief surveillance judge fully informed.

"I was determined to stay there and fight for what I thought was right," Baker
said in an interview [12], declining to say what the fight was about, on or off
the record. He had obligations, he said, to the lawyers who worked for him in
the Office of Intelligence Policy and Review. "If it had come to this, if people
were willing to go to the mat and tolerate the attorney general and deputy
attorney general resigning, that's pretty serious. God knows what else they
would have come up with."

* * *

At the White House on Thursday morning, the president moved in a bubble so tight
that hardly any air was getting in. It was March 11, decision day. If Bush
reauthorized the program, he would have no signature from the attorney general.
By now that was nowhere near the president's biggest problem.

Many of the people Bush trusted most were out of the picture. Karl Rove was not
cleared for the program. Neither was Dan Bartlett or Karen Hughes.

National security adviser Condoleezza Rice had the clearance, but Cheney did not
invite her to the meetings that mattered.

Bush gave a speech to evangelicals that morning and left the White House for an
after-lunch fundraiser in New York [13]. In whatever time he took to weigh his
options, the president had only Cheney, Card and Gonzales to advise him.

The vice president knew exactly where he stood, unswerving in his commitment to
keep the program just as it was. Gonzales later told two confidants that he had
broken with David S. Addington, Cheney's lawyer, urging Bush to find common
ground with Justice. Card, too, told colleagues that he had urged restraint.

"My job was to communicate with the president about the peripheral vision, not
just the tunnel vision of the moment," he said, deflecting questions about the
details [14].

Did peripheral vision mean a broader view of the consequences?

"Yes," Card replied. "It was like -- I don't want to limit it to this particular
matter, but that's part of a chief of staff's job. A lot of people who work in
the White House have tunnel vision, and not an awful lot of people have
peripheral vision. And I think the chief of staff is one of the people who
should have peripheral vision."

Card didn't really need the corner of his eye to see a disaster at hand. Even
so, Bush didn't know what his subordinates knew that Thursday morning.

Cheney, Addington, Card and Gonzales had plenty of data. Card had heard the news
directly from Comey the night before. On Thursday, the FBI director delivered
much the same warning.

For Cheney, it didn't matter much whether one official or 10 or 20 took a walk.
Maybe they were bluffing, maybe not. The principle was the same: Do what has to
be done.

"The president of the United States is the chief law enforcement officer -- that
was the Cheney view," said Bartlett, Bush's counselor, who was later briefed
into the program and the events of the day. "You can't let resignations deter
you if you're doing what's right."

Cheney and Addington "were ready to go to the mat," he said, and the vice
president's position boiled down to this: " 'That's why we're leaders, that's
why we're here. Take the political hit. You've got to do it.' "

* * *

Addington opened the code-word-classified file on his computer. He had a
presidential directive to rewrite.

It has been widely reported that Bush executed the March 11 order with a blank
space over the attorney general's signature line. That is not correct [15]. For
reasons both symbolic and practical, the vice president's lawyer could not
tolerate an empty spot where a mutinous subordinate should have signed.
Addington typed a substitute signature line: "Alberto R. Gonzales."

What Addington wrote for Bush that day was more transcendent than that. He drew
up new language in which the president relied on his own authority to certify
the program as lawful. Bush expressly overrode the Justice Department and any
act of Congress or judicial decision that purported to constrain his power as
commander in chief. Only Richard M. Nixon, in an interview after leaving the
White House in disgrace, claimed authority so nearly unlimited [16].

The specter of future prosecutions hung over the program, now that Justice had
ruled it illegal.

"Pardon was in the air," said one of the lawyers involved.

It was possible to construct a case, he said, in which those who planned and
carried out the program were engaged in a criminal conspiracy. That would be
tendentious, this lawyer believed, but with a change of government it could not
be ruled out.

"I'm sure when we leave office we're all going to be hauled up before
congressional committees and grand juries," Addington told one colleague in
disgust.

* * *

Bush signed the directive before leaving for New York around lunchtime on
Thursday, March 11, 2004.

Comey got word a couple of hours later. He sat down and typed a letter.

"Over the last two weeks ... I and the Department of Justice have been asked to
be part of something that is fundamentally wrong," he wrote [17]. "As we have
struggled over these last days to do the right thing, I have never been prouder
of the Department of Justice or of the Attorney General. Sadly, although I
believe this has been one of the institution's finest hours, we have been unable
to right that wrong... . Therefore, with a heavy heart and undiminished love of
my country and my Department, I resign as Deputy Attorney General of the United
States, effective immediately."

David Ayres, Ashcroft's chief of staff, pleaded with Comey to wait a few days
[18]. He was certain that Ashcroft would want to quit alongside him. Comey
agreed to hold his letter through the weekend.

Bush was not a man to second-guess himself. By Friday morning, he would need new
facts to save him. Somebody, finally, would have to tell him something.

It was Rice, largely in the dark herself, who threw the president a lifeline.
She had a few minutes alone with him, shortly before 7:30 a.m., on the day after
he renewed the surveillance order. She told Bush about Comey's agitated
approach, the day before, to Frances Fragos Townsend, the deputy national
security adviser for combating terrorism. This was no way to keep a secret.

"It was a compartmented issue," Rice recalled in an interview [19]. "Obviously,
there was a security issue here and not just a legal one, because you didn't
want this sort of bumping around."

Rice made a suggestion.

Comey is "a reasonable guy," she told the president. "You really need to make
sure that you are hearing these folks out."

An hour later, Comey and Robert Mueller arrived at the White House for the
regular 8:30 terrorism briefing. They had a lot to cover: Bombs aboard commuter
trains in Madrid had killed 191 people.

Both men told aides that this would be their last day in government. There would
be no door-slamming, but the president had made his choice and they had made
theirs.

Bush stood as the meeting ended, crossing behind Cheney's chair. Comey moved in
the opposite direction, on his way out. He had nearly reached the grandfather
clock at the door, two witnesses said, when the president said, "Jim, can I talk
to you for a minute? [20]"

Bush nodded toward the private dining room a few steps from his desk, the one he
shared with Cheney once a week. This time the vice president was not invited.

"I'll wait for you downstairs," Mueller told Comey.

* * *

By now, around 9:15 Friday morning, Bush knew enough to be nervous about what
the acting attorney general might do. That did not mean he planned to reverse
himself. One high-ranking adviser said there was still an "optimism that maybe
you can finesse your way through this."

Afterward, in conversations with aides, the two men described the meeting in
similar terms.

"You don't look well," Bush began.

Oldest trick in the book. Establish dominance, put the other guy off his game
[21].

"Well, I feel okay."

"I'm worried about you. You look burdened."

"I am, Mr. President. I feel like there's a tremendous burden on me."

"Let me lift that burden from your shoulders," Bush said. "Let me be the one who
makes the decision here."

"Mr. President, I would love to be able to do that."

Bush's tone grew crisp.

"I decide what the law is for the executive branch," he said.

"That's absolutely true, sir, you do. But I decide what the Department of
Justice can certify to and can't certify to, and despite my absolute best
efforts, I simply cannot in the circumstances."

Comey had majored in religion, William and Mary Class of 1982. He might have
made a connection with Bush if he had quoted a verse from Scripture. The line
that came to him belonged to a 16th-century theologian who defied an emperor.

"As Martin Luther said, 'Here I stand; I can do no other,' " Comey said. "I've
got to tell you, Mr. President, that's where I am."

Now Bush said something that floored Comey.

"I just wish that you weren't raising this at the last minute."

The last minute! He didn't know.

The president kept talking. Not the way it's supposed to work, popping up with
news like this. The day before a deadline?

Wednesday. He didn't know until Wednesday. No wonder he sent Card and Gonzales
to the hospital.

"Oh, Mr. President, if you've been told that, you have been very poorly served
by your advisers," Comey said. "We have been telling them for months we have a
huge problem here."

"Give me six weeks," Bush asked. One more renewal.

"I can't do that," Comey said. "You do say what the law is in the executive
branch, I believe that. And people's job, if they're going to stay in the
executive branch, is to follow that. But I can't agree, and I'm just sorry."

If they're going to stay.

Comey was edging toward a breach of his rule against resignation threats.

This man just needs to know what's about to happen.

"I think you should know that Director Mueller is going to resign today," Comey
said.

Bush raised his eyebrows. He shifted in his chair. He could not hide it, or did
not try. He was gobsmacked.

"Thank you very much for telling me that," he said.

Comey hurried down to Mueller, who sat in the foyer outside the Situation Room.
A Secret Service agent followed close behind. The president would like to see
you, the agent told Mueller.

Comey pulled out his BlackBerry and sent a note to six colleagues at 9:27 a.m.

"The president just took me into his private office for a 15 minute one on one
talk," he wrote [22]. "Told him he was being misled and poorly served. We had a
very full and frank exchange. Don't know that either of us can see a way
out... . Told him Mueller was about to resign. He just pulled Bob into his
office."

The FBI director was no more tractable than Comey. This was a rule-of-law
question, he told the president, and the answer was in the Justice Department
[23]. The FBI could not participate in operations that Justice held to be in
breach of criminal law. If those were his orders, he would respectfully take his
leave.

And there it was, unfinessable. Bush was out of running room, all the way out.
He had only just figured out that the brink was near, and now he stood upon it.

Not 24 hours earlier, the president had signed his name to an in-your-face
rejection of the attorney general's ruling on the law. Now he had two bad
choices. March on, with all the consequences. Or retreat.

The president stepped back from the precipice. He gave Mueller a message for
Comey.

"Tell Jim to do what Justice thinks needs to be done," he said.

Seven days later, Bush amended his March 11 directive. The legal certification
belonged again to the attorney general. The surveillance program stopped doing
some things, and it did other things differently. Much of the operation remained
in place. Not all of it.

* * *

Because Bush did not walk off the cliff, and because so much of the story was
suppressed, an extraordinary moment in presidential history passed unrecognized.

"I mean, it would be damn near unprecedented for the top echelon of your Justice
Department to resign over a position you've taken," Bartlett said.

There might be one precedent, he allowed. He did not want to spell it out.

"Not a good one," he said.

During the Watergate scandal, the attorney general and deputy attorney general
resigned, refusing to carry out Richard Nixon's order to fire the special
prosecutor. Nixon lost his top two Justice officials, and that was called the
Saturday Night Massacre.

Bush had come within minutes of losing his FBI director and at least the top
five layers at Justice. What would they call that? Suicide, maybe?

"You don't have to be the smartest guy to figure out that [mass resignations]
would be pretty much the most devastating thing that could happen to your
administration," said Mark Corallo, Ashcroft's communications director and,
during Bush's first race for the White House, chief spokesman for the Republican
National Committee. "The rush to hearings on the Hill, both in the House and
Senate, would be unbelievable. The media frenzy that would have ensued would
have been unlike anything we've ever seen. That's when you're getting into
Watergate territory."

Long after departing as chief of staff, Card held fast to the proposition that
whatever happened was nobody's business, and no big deal anyway [24].

"I think you're writing about something that's irrelevant," Card said.
"Voyeurism."

Because?

"Nobody resigned over this," he said. It all boiled down to trash talk: " 'Oh, I
was gonna swing at the pitch but it was too high.' "

That seems unlikely to stand as history's verdict. In the fourth year of his
presidency, a man who claimed the final word was forced by subordinates to
comply with their ruling on the law. Ashcroft, Comey, Goldsmith, Philbin --
believers, one and all, in the "unitary executive branch" -- obliged the
commander in chief to stand down. For the first time, a president claimed in
writing that he alone could say what the law was. A rebellion, in direct
response, became so potent a threat that Bush reversed himself in a day.

"This is the first time when the president of the United States really wanted
something in wartime, and tried to overrule the Department of Justice, and the
law held," said Goldsmith, after studying similar conflicts under Abraham
Lincoln and Franklin D. Roosevelt.

In the aftermath, the White House senior staff asked questions. Was the
president getting timely information and advice? Had he relinquished too much
control to Cheney?

Bush, aides said, learned something he would not forget. Cheney was the nearest
thing to an anti-politician in elected office. Bush could not afford to be like
that. In his second term, his second chance, the president would take greater
care to consult his own instincts.

"Cheney was not afraid of giving pure, kind of principled advice," Bartlett
said. "He thinks from a policy standpoint, and I think he does this out of pure
intentions. He thinks of the national security interest or the prerogatives of
the executive. The president has other considerations he has to take into
account. The political fallout of certain reactions -- he's just going to
calculate different than Cheney does."

"He grew accustomed to that," Bartlett said.

[ Staff researcher Julie Tate contributed to this report. ]

*


Washington Post --

September 14, 2008

CONFLICT OVER SPYING LED WHITE HOUSE TO BRINK

By Barton Gellman

http://www.washingtonpost.com/wp-dyn/content/
article/2008/09/13/AR2008091302284.html

This is the first of two stories adapted from "Angler: The Cheney Vice
Presidency," to be published Tuesday by Penguin Press. Original source notes are
denoted in [brackets] throughout.

A burst of ferocity stunned the room into silence. No other word for it: The
vice president's attorney was shouting.

"The president doesn't want this! [1] You are not going to see the opinions. You
are out ... of ... your ... lane!"

Five government lawyers had gathered around a small conference table in the
Justice Department command center. Four were expected. David S. Addington,
counsel to Vice President Cheney, got wind of the meeting and invited himself.

If Addington smelled revolt, he was not far wrong. Unwelcome questions about
warrantless domestic surveillance had begun to find their voice.

Cheney and his counsel would struggle for months to quash the legal insurgency.
By the time President Bush became aware of it, his No. 2 had stoked dissent into
flat-out rebellion. The president would face a dilemma, and the presidency
itself a historic test. Cheney would come close to leading them off a cliff, man
and office both [2].

On this second Monday in December 2003, Addington's targets were a pair of
would-be auditors from the National Security Agency. He had displeasure to spare
for their Justice Department hosts.

Perfect example, right here. A couple of NSA bureaucrats breeze in and ask for
the most sensitive documents in the building. And Justice wants to tell them,
Help yourselves? This was going to be a very short meeting.

Joel Brenner and Vito Potenza, the two men wilting under Addington's wrath, had
driven 26 miles from Fort Meade, the NSA's eavesdropping headquarters in
Maryland. They were conducting a review of their agency's two-year-old special
surveillance operation. They already knew the really secret stuff [3]: The NSA
and other services had been unleashed to turn their machinery inward, collecting
signals intelligence inside the United States. What the two men didn't know was
why the Bush administration believed the program was legal.

It was an awkward question. Potenza, the NSA's acting general counsel, and
Brenner, its inspector general, were supposed to be the ones who kept their
agency on the straight and narrow. That's what Cheney and their boss, Lt. Gen.
Michael V. Hayden, told doubters among the very few people who knew what was
going on. Cheney, who chaired briefings for select members of Congress, said
repeatedly that the NSA's top law and ethics officers -- career public servants
-- approved and supervised the surveillance program.

That was not exactly true, not without one of those silent asterisks that
secretly flip a sentence on its tail. Every 45 days, after Justice Department
review, Bush renewed his military order for warrantless eavesdropping. Brenner
and Potenza told Hayden that the agency was entitled to rely on those orders
[4]. The United States was at war with al-Qaeda, intelligence-gathering is
inherent in war, and the Constitution appoints the president commander in chief.

But they had not been asked to give their own written assessments of the
legality of domestic espionage. They based their answer in part on the attorney
general's certification of the "form and legality" of the president's orders.
Yet neither man had been allowed to see the program's codeword-classified legal
analyses [5], which were prepared by John C. Yoo, Addington's close ally in the
Justice Department's Office of Legal Counsel. Now they wanted to read Yoo's
opinions for themselves [6].

"This is none of your business!" Addington exploded.

He was massive in his swivel chair, taut and still, potential energy amping up
the menace. Addington's pugnacity was not an act. Nothing mattered more, as the
vice president and his lawyer saw the world, than these new surveillance tools.
Bush had made a decision. Debate could only blow the secret, slow down vital
work, or call the president's constitutional prerogatives into question.

The NSA lawyers returned to their car empty-handed.

* * *

The command center of "the president's program," as Addington usually called it,
was not in the White House. Its controlling documents, which gave strategic
direction to the nation's largest spy agency, lived in a vault across an alley
from the West Wing [7] -- in the Eisenhower Executive Office Building, on the
east side of the second floor, where the vice president headquartered his staff.

The vault was in EEOB 268, Addington's office. Cheney's lawyer held the
documents, physical and electronic, because he was the one who wrote them. New
forms of domestic espionage were created and developed over time in presidential
authorizations that Addington typed on a Tempest-shielded computer across from
his desk [8].

It is unlikely that the history of U.S. intelligence includes another operation
conceived and supervised by the office of the vice president. White House Chief
of Staff Andrew H. Card Jr. had "no idea," he said, that the presidential orders
were held in a vice presidential safe. An authoritative source said the staff
secretariat, which kept a comprehensive inventory of presidential papers,
classified and unclassified, possessed no record of these.

In an interview, Card said the Executive Office of the President, a formal term
that encompassed Bush's staff but not Cheney's, followed strict procedures for
handling and securing presidential papers.

"If there were exceptions to that, I'm not aware of them," he said. "If these
documents weren't stored the right way or put in the right places or maintained
by the right people, I'm not aware of it."

Asked why Addington would write presidential directives, Card said, "David
Addington is a very competent lawyer." After a moment he added, "I would
consider him a drafter, not the drafter [9]. I'm sure there were a lot of smart
people who were involved in helping to look at the language and the law."

Not many, it turned out. Though the president had the formal say over who was
"read in" to the domestic surveillance program, Addington controlled the list in
practice, according to three officials with personal knowledge. White House
counsel Alberto R. Gonzales was aware of the program, but was not a careful
student of the complex legal questions it raised. In its first 18 months, the
only other lawyer who reviewed the program was John Yoo.

By the time the NSA auditors came calling, a new man, Jack L. Goldsmith, was
chief of the Justice Department's Office of Legal Counsel. Soon after he arrived
on Oct. 6, 2003, the vice president's lawyer invited him to EEOB 268. Addington
pulled out a folder with classification markings that Goldsmith had never seen
[10].

"David Addington was doing all the legal work. All the important documents were
kept in his safe [11]," Goldsmith recalled. "He was the one who first briefed
me."

Goldsmith's new assignment gave him final word in the executive branch on what
was legal and what was not. Addington had cleared him for the post -- "the
biggest presence in the room," Goldsmith said, during a job interview ostensibly
run by Gonzales.

Goldsmith did not have the looks of a guy who posed a threat to the Bush
administration's alpha lawyer. A mild-mannered law professor from the University
of Chicago, he was rumpled and self-conscious, easy to underestimate. On first
impression, he gave off a misleading aura of softness. Goldsmith had lettered in
football, baseball and soccer at the Pine Crest School in Fort Lauderdale, Fla.,
[12] spending his formative years with a mob-connected Teamster who married his
mother [13]. He was not a bare-knuckled brawler in Addington's mold, but
Goldsmith arrived at Justice with no less confidence and strength of will.

Addington's behavior with the NSA auditors was "a wake-up call for me,"
Goldsmith said. Cheney and Addington, he came to believe, were gaming the
system, using secrecy and intimidation to prevent potential dissenters from
conducting an independent review.

"They were geniuses at this," Goldsmith said. "They could divide up all these
problems in the bureaucracy, ask different people to decide things in their
lanes, control the facts they gave them, and then put the answers together to
get the result they want."

Dec. 9, 2003, the day of the visit from Brenner and Potenza, was the beginning
of the end of that strategy. The years of easy victory were winding down for
Cheney and his staff.

* * *

Goldsmith began a top-to-bottom review of the domestic surveillance program,
taking up the work begun by a lawyer named Patrick F. Philbin after John Yoo
left the department. Like Yoo and Goldsmith, Philbin had walked the stations of
the conservative legal establishment: Federalist Society, a clerkship with U.S.
Circuit Judge Laurence H. Silberman, another with Supreme Court Justice Clarence
Thomas.

The more questions they asked, the less Goldsmith and Philbin liked the answers.
Parts of the program fell easily within the constitutional powers of the
commander in chief. Others looked dicier.

The two lawyers worked at the intersection of three complex systems:
telecommunications, spy technology, and the statutory regimes that governed
surveillance. After a few weeks, Goldsmith said, he decided the program "was the
biggest legal mess I'd seen in my life."

He asked for permission to read in Attorney General John D. Ashcroft's new
deputy, James B. Comey [14]. As always, he found Addington waiting with Gonzales
in the White House counsel's corner office, one floor up from the chief of
staff. They sat in parallel wing chairs, much as Bush and Cheney did in the Oval
Office.

"The attorney general and I think the deputy attorney general should be read
in," Goldsmith said.

Addington replied first.

"Forget it," he said.

"The president insists on strict limitations on access to the program," Gonzales
agreed.

Weeks passed. Goldsmith kept asking. Addington kept saying no.

"He always invoked the president, not the vice president," Goldsmith said [15].

Comey was not exactly Mr. Popular at 1600 Pennsylvania Ave. He had arrived at
Justice as a 6-foot-8 golden boy, smooth and polished, with top chops as a
federal terrorism prosecutor in Northern Virginia and New York City. Then came
Dec. 30, 2003. Comey did something unforgivable: He appointed an independent
counsel to investigate the leak of Valerie Plame's identity as a clandestine CIA
officer, a move that would bring no end of grief for Cheney.

In late January, Goldsmith and Addington cut a deal. Comey would get his read-
in. Goldsmith would get off the fence about the program, giving his definitive
answer by the March 11 deadline.

"You're the head of the Office of Legal Counsel, and if you say we cannot do
this thing legally, we'll shut it off," Addington told him [16].

Feel free to tell the president that his most important intelligence operation
has to stop.

Your call, Jack.

Goldsmith wanted to fix the thing, not stop it. He and Philbin traveled again
and again to Fort Meade, each time delving deeper. They were in and out of
Gonzales's office, looking for adjustments in the program that would bring it
into compliance with the law. The issues were complex and remain classified.
Addington bent on nothing, swatting back every idea. Gonzales listened placidly,
sipping Diet Cokes from his little refrigerator, encouraging the antagonists to
keep things civil.

There would be no easy out, no middle ground. Addington made clear that he did
not believe for a moment that Justice would pull the plug.

* * *

Mike Hayden and Vito Potenza drove down from NSA headquarters after lunch on
Feb. 19, 2004, to give Jim Comey his first briefing on the program. In the
Justice Department's vault-like SCIF, a sensitive compartmented information
facility, Hayden got Comey's attention fast.

"I'm so glad you're getting read in, because now I won't be alone at the table
when John Kerry is elected president," the NSA director said [17].

The witness table, Hayden meant. Congressional hearing, investigation of some
kind. Nothing good. Kerry had the Democratic nomination just about locked up and
was leading Bush in national polls. Hardly anyone in the intelligence field
believed the next administration would climb as far out on a legal limb as this
one had.

"Hayden was all dog-and-pony, and this is probably what happened to those poor
folks in Congress, too," Comey told his chief of staff after the briefing. "You
think for a second, 'Wow, that's great,' and then if you try actually to explain
it back to yourself, you don't get it. You scratch your head afterward and you
think, 'What the hell did that guy just tell me?' "

The NSA chief insisted on limiting surveillance to e-mails, phone calls and
faxes in which one party was overseas, deflecting arguments from Cheney and
Addington that he could just as well collect communications inside the United
States.

That was one reason Hayden hated when reporters referred to "domestic
surveillance." He made his point with a folksy analogy: He had taken "literally
hundreds of domestic flights," he said, and never "landed in Waziristan." That
sounded good. But the surveillance statutes said a warrant was required if
either end of the conversation was in U.S. territory. The American side of the
program -- the domestic surveillance -- was its distinguishing feature.

By the end of February, Goldsmith and Philbin had reached their conclusion:
Parts of the surveillance operation had no support in law. Comey was so
disturbed that he drove to Langley one evening to compare notes with Scott W.
Muller, the general counsel at the CIA. Muller "got it immediately," agreeing
with the Goldsmith-Philbin analysis, Comey said.

"At the end of the day, I concluded something I didn't ever think I would
conclude, and that is that Pat Philbin and Jack Goldsmith understood this
activity much better than Michael Hayden did," he said.

On Thursday, March 4, Comey brought the findings to Ashcroft, conferring for an
hour one-on-one. Three senior Justice Department officials said in interviews
that Ashcroft gave his full backing. He was not going to sign the next
presidential order -- due in one week, March 11 -- unless the White House agreed
to a list of required changes.

* * *

A few hours later, Ashcroft was reviewing notes for a news conference in
Alexandria when his color changed and he sat down heavily. An aide, Mark
Corallo, ducked out and returned to find the attorney general laid out on his
back. By nightfall, Ashcroft was taken to George Washington University Medical
Center in severe pain, suffering acute gallstone pancreatitis. Comey became
acting attorney general on Friday.

The next day -- Saturday, March 6, five days before the March 11 deadline --
Goldsmith brought the Justice Department verdict to the White House. He told
Gonzales and Addington for the first time that Justice would not certify the
program.

A long silence fell. It lasted three full days.

Gonzales phoned Goldsmith at home before sunrise on Tuesday, March 9, with two
days left before the program expired. Obviously there was bad chemistry with
Addington. Why not come in and talk, he asked, just the two of us?

Goldsmith arrived at the White House in morning twilight. Alone in his office,
Gonzales begged the OLC chief to reconsider. Gonzales tried to dispute
Goldsmith's analysis, but he was in over his head. At least let us have more
time, he said. Goldsmith said he couldn't do that.

The time had come for the vice president to step in. Proxies were not getting
the job done. Cheney was going to have to take hold of this thing himself.

Even now, after months of debate, Cheney did not enlist the president. Bush was
across the river in Arlington, commending the winners of the Malcolm Baldrige
awards for quality improvement in private industry [18]. Campaign season had
come already, and the president was doing a lot of that kind of thing. That week
he had a fundraiser in Dallas, a "Bush-Cheney 2004 event" in Santa Clara,
Calif., and a meet-and-greet at a rodeo in Houston.

Soon after hearing what had happened between Goldsmith and Gonzales, the vice
president asked Andy Card to set up a meeting at noon with Mike Hayden, FBI
Director Robert S. Mueller III, and John McLaughlin from the CIA (substituting
for his boss, George J. Tenet). Cheney spoke to them in Card's office, the door
closed.

Four hours later, at 4 p.m., the same cast reconvened. This time the Justice
contingent was invited. Comey, Goldsmith and Philbin found the titans of the
intelligence establishment lined up, a bunch of grave-faced analysts behind them
for added mass. The spy chiefs brought no lawyers. The law was not the point.
This meeting, described by officials with access to two sets of contemporaneous
notes, was about telling Justice to set its qualms aside.

The staging had been arranged for maximum impact. Cheney sat at the head of
Card's rectangular table, pivoting left to face the acting attorney general. The
two men were close enough to touch. Card sat grimly at Cheney's right, directly
across from Comey. There was plenty of eye contact all around.

This program, Cheney said, was vital. Turning it off would leave us blind.
Hayden, the NSA chief, pitched in: Even if the program had yet to produce
blockbuster results, it was the only real hope of discovering sleeper agents
before they could act.

"How can you possibly be reversing course on something of this importance after
all this time?" Cheney asked [19].

Comey held his ground. The program had to operate within the law. The Justice
Department knew a lot more now than it had before, and Ashcroft and Comey had
reached this decision together.

"I will accept for purposes of discussion that it is as valuable as you say it
is," Comey said. "That only makes this more painful. It doesn't change the
analysis. If I can't find a lawful basis for something, your telling me you
really, really need to do it doesn't help me."

"Others see it differently," Cheney said.

There was only one of those, really. John Yoo had been out of the picture for
nearly a year. It was all Addington.

"The analysis is flawed, in fact facially flawed," Comey said. "No lawyer
reading that could reasonably rely on it."

Gonzales said nothing. Addington stood by the window, over Cheney's shoulder. He
had heard a bellyful.

"Well, I'm a lawyer and I did," Addington said, glaring at Comey.

"No good lawyer," Comey said [20].

In for a dime, in for a dollar.

Addington started disputing the particulars. Now he was on Jack Goldsmith's
turf. From across the room the head of the Office of Legal Counsel jumped in.
And right there in front of the big guys, the two of them bickered in the snarly
tones of a couple who knew all of each other's lines.

* * *

As the sun went down on Tuesday, March 9, the president of the United States had
yet to learn that his Justice Department was heading off the rails. A train
wreck was coming, but Cheney wanted to handle it. Neither Card nor Gonzales was
in the habit of telling him no.

"I don't think it would be appropriate for the president to be engaged in the
to-and-fro until it is, you know, penultimate," Card said in a recent interview
[21]. "I guess the definition of 'penultimate' could vary from four steps to
three steps to two steps to one step. That's why you have White House counsel
and people who do the legal work."

Participants in the afternoon meeting, including some of Cheney's recruits, left
the room shaken. Mueller worked for the attorney general, and the FBI's central
mission was to "uphold and enforce the criminal laws of the United States."
Hayden's neck, and his agency, were on the line. The NSA director believed in
the program, believed he was doing the right thing. But keep on going when the
Justice Department said no?

Early the next morning -- Wednesday, March 10, with 24 hours to deadline --
Hayden was back in the White House. One colleague saw him conferring in worried
whispers with Homeland Security adviser John A. Gordon, a mentor and fellow Air
Force general, much the senior of the two. They huddled in the West Wing lobby,
Hayden on a love seat and Gordon in a chair [22].

Jim Comey was in the White House that morning, too, arriving early for the
president's regular 8:30 terrorism brief. He had heard nothing since the
discouraging meeting the day before.

Comey found Frances Fragos Townsend, an old friend, waiting just outside the
Oval Office, standing by the appointment secretary's desk. She was Bush's deputy
national security adviser for combating terrorism. Comey had known her since
their days as New York mob prosecutors in the 1980s. Since then, Townsend had
run the Justice Department's intelligence office. She lived and breathed
surveillance law.

Comey took a chance. He pulled her back out to the hallway between the Roosevelt
Room and the Cabinet Room.

"If I say a word, would you tell me whether you recognize it?" he asked quietly.

He did. She didn't. The program's classified code name left her blank. Comey
tried to talk around the subject.

"I think this is something I am not a part of," Townsend said [23]. "I can't
have this conversation." Like John Gordon and deputy national security adviser
Steven J. Hadley and Homeland Security Secretary Tom Ridge, she was out of the
loop [24].

Oh, God, Comey remembers thinking. They've held this so tight. Even Fran
Townsend. The president's counterterrorism adviser is not read in? Comey towered
over his diminutive friend. He chose his words carefully.

"I need to know," he said, "whether your boss recognizes that word, and whether
she's read in on a particular program. Because we had a meeting here yesterday
on that topic that I would have expected her to be at."

He meant national security adviser Condoleezza Rice. Comey was hoping for an
ally, or maybe rescue.

"I felt very alone, with some justification," Comey recalled. "The attorney
general is in intensive care. There's a train coming down the tracks that's
about to run me and my career and the Department of Justice over. I was
exploring every way to get off the tracks I could."

Townsend had a pretty good guess about what was on Comey's mind. Cheney had kept
her out of the loop, but it was hard to hide a warrantless domestic surveillance
program completely from the president's chief terrorism adviser.

"I'm not the right person to talk to," she told her friend, her voice close to a
whisper. Comey ought to go see Rice.

"I'm going to tell her you've got concerns," Townsend said.

Comey's concerns no longer interested Cheney. The vice president had tried to
back him down. That didn't work.

Only one day remained before the surveillance program expired. Time for Cheney
to take the fight somewhere else.

[ Staff researcher Julie Tate contributed to this report. ]

* * *