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NEWS DIGEST 2009.01.01 - 2009.03.15
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New York Review of Books --

March 15, 2009

US TORTURE: VOICES FROM THE BLACK SITES

by Mark Danner

ICRC Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody
by the International Committee of the Red Cross, 43 pp., February 2007

[ April 9, 2009 issue, Vol. 56, No. 6 ]

http://www.nybooks.com/articles/22530


        We need to get to the bottom of what happened -- and why -- so we make
        sure it never happens again.[1]
        
        -- Senator Patrick Leahy, Chairman, Senate Judiciary Committee


1.

We think time and elections will cleanse our fallen world but they will not.
Since November, George W. Bush and his administration have seemed to be rushing
away from us at accelerating speed, a dark comet hurtling toward the ends of the
universe. The phrase "War on Terror" -- the signal slogan of that
administration, so cherished by the man who took pride in proclaiming that he
was "a wartime president" -- has acquired in its pronouncement a permanent pair
of quotation marks, suggesting something questionable, something mildly
embarrassing: something past. And yet the decisions that that president made,
especially the monumental decisions taken after the attacks of September 11,
2001 -- decisions about rendition, surveillance, interrogation -- lie strewn
about us still, unclaimed and unburied, like corpses freshly dead.

How should we begin to talk about this? Perhaps with a story. Stories come to us
newborn, announcing their intent: Once upon a time ...  In the beginning ...
From such signs we learn how to listen to what will come. Consider:

I woke up, naked, strapped to a bed, in a very white room. The room measured
approximately 4m x 4m [13 feet by 13 feet]. The room had three solid walls, with
the fourth wall consisting of metal bars separating it from a larger room. I am
not sure how long I remained in the bed...

A man, unnamed, naked, strapped to a bed, and for the rest, the elemental facts
of space and of time, nothing but whiteness.


The storyteller is very much a man of our time. Early on in the "War on Terror,"
in the spring of 2002, he entered the dark realm of "the disappeared" -- and
only four and a half years later, when he and thirteen other "high-value
detainees" arrived at Guantánamo and told their stories in interviews with
representatives of the International Committee of the Red Cross (reported in the
confidential document listed above) did he emerge partly into the light. Indeed,
he is a famous man, though his fame has followed a certain path, peculiar to our
modern age: jihadist, outlaw, terrorist, "disappeared." An international
celebrity whose name, one of them anyway, is instantly recognizable. How many
people have their lives described by the president of the United States in a
nationally televised speech?

Within months of September the 11th, 2001, we captured a man known as Abu
Zubaydah. We believe that Zubaydah was a senior terrorist leader and a trusted
associate of Osama bin Laden... Zubaydah was severely wounded during the
firefight that brought him into custody -- and he survived only because of the
medical care arranged by the CIA.[2]

A dramatic story: big news. Wounded in a firefight in Faisalabad, Pakistan, shot
in the stomach, groin, and thigh after jumping from a roof in a desperate
attempt to escape. Massive bleeding. Rushed to a military hospital in Lahore. A
trauma surgeon at Johns Hopkins awakened by a late-night telephone call from the
director of central intelligence and flown in great secrecy to the other side of
the world. The wounded man barely escapes death, slowly stabilizes, is shipped
secretly to a military base in Thailand. Thence to another base in Afghanistan.
Or was it Afghanistan?


We don't know, not definitively. For from the moment of his dramatic capture, on
March 28, 2002, the man known as Abu Zubaydah slipped from one clandestine
world, that of al-Qaeda officials gone to ground in the days after September 11,
into another, a "hidden global internment network" intended for secret detention
and interrogation and set up by the Central Intelligence Agency under authority
granted directly by President George W. Bush in a "memorandum of understanding"
signed on September 17, 2001.

This secret system included prisons on military bases around the world, from
Thailand and Afghanistan to Morocco, Poland, and Romania -- "at various times,"
reportedly, "sites in eight countries" -- into which, at one time or another,
more than one hundred prisoners ... disappeared.[3] The secret internment
network of "black sites" had its own air force and its own distinctive "transfer
procedures," which were, according to the writers of the International Committee
of the Red Cross (ICRC) report, "fairly standardised in most cases":

The detainee would be photographed, both clothed and naked prior to and again
after transfer. A body cavity check (rectal examination) would be carried out
and some detainees alleged that a suppository (the type and the effect of such
suppositories was unknown by the detainees), was also administered at that
moment.

The detainee would be made to wear a diaper and dressed in a tracksuit.
Earphones would be placed over his ears, through which music would sometimes be
played. He would be blindfolded with at least a cloth tied around the head and
black goggles. In addition, some detainees alleged that cotton wool was also
taped over their eyes prior to the blindfold and goggles being applied...

The detainee would be shackled by [the] hands and feet and transported to the
airport by road and loaded onto a plane. He would usually be transported in a
reclined sitting position with his hands shackled in front. The journey times
... ranged from one hour to over twenty-four to thirty hours. The detainee was
not allowed to go to the toilet and if necessary was obliged to urinate and
defecate into the diaper.

One works the imagination trying to picture what it was like in this
otherworldly place: blackness in place of vision. Silence -- or "sometimes" loud
music -- in place of sounds of life. Shackles, together sometimes with gloves,
in place of the chance to reach, touch, feel. One senses metal on wrist and
ankle, cotton against eyes, cloth across face, shit and piss against skin. On
"some occasions detainees were transported lying flat on the floor of the plane
... with their hands cuffed behind their backs," causing them "severe pain and
discomfort," as they were moved from one unknown location to another.

For his part, Abu Zubaydah -- thirty-one years old, born Zein al-Abedeen
Mohammad Hassan, in Riyadh, Saudi Arabia, though coming of Palestinian stock,
from the Gaza Strip --

alleged that during one transfer operation the blindfold was tied very tightly
resulting in wounds to his nose and ears. He does not know how long the transfer
took but, prior to the transfer, he reported being told by his detaining
authorities that he would be going on a journey that would last twenty-four to
thirty hours.

A long trip then: perhaps to Guantánamo? Or Morocco? Then back, apparently, to
Thailand. Or was it Afghanistan? He thinks the latter but can't be sure...

2.

All classified, compartmentalized, deeply, deeply secret. And yet what is
"secret" exactly? In our recent politics, "secret" has become an oddly complex
word. From whom was "the secret bombing of Cambodia" secret? Not from the
Cambodians, surely. From whom was the existence of these "secret overseas
facilities" secret? Not from the terrorists, surely. From Americans, presumably.
On the other hand, as early as 2002, anyone interested could read on the front
page of one of the country's leading newspapers:

US Decries Abuse but Defends Interrogations: "Stress and Duress" Tactics Used on
Terrorism Suspects Held in Secret Overseas Facilities

Deep inside the forbidden zone at the US-occupied Bagram air base in
Afghanistan, around the corner from the detention center and beyond the
segregated clandestine military units, sits a cluster of metal shipping
containers protected by a triple layer of concertina wire. The containers hold
the most valuable prizes in the war on terrorism -- captured al Qaeda operatives
and Taliban commanders...

"If you don't violate someone's human rights some of the time, you probably
aren't doing your job," said one official who has supervised the capture and
transfer of accused terrorists. "I don't think we want to be promoting a view of
zero tolerance on this. That was the whole problem for a long time with the
CIA..."

This lengthy article, by Dana Priest and Barton Gellman, appeared in The
Washington Post on December 26, 2002, only months after the capture of Abu
Zubaydah. A similarly lengthy report followed a few months later on the front
page of The New York Times ("Interrogations: Questioning Terror Suspects in a
Dark and Surreal World"). The blithe, aggressive tone of the officials quoted --
"We don't kick the [expletive] out of them. We send them to other countries so
they can kick the [expletive] out of them" -- bespeaks a very different
political temper, one in which a prominent writer in a national newsmagazine
could headline his weekly column "Time to Think About Torture," noting in his
subtitle that in this "new world ... survival might well require old techniques
that seemed out of the question."[4]

So there are secrets and secrets. And when, on a bright sunny day two years ago,
just before the fifth anniversary of the September 11 attacks, the President of
the United States strode into the East Room of the White House and informed the
high officials, dignitaries, and specially invited September 11 survivor
families gathered in rows before him that the United States government had
created a dark and secret universe to hold and interrogate captured terrorists
-- or, in the President's words, "an environment where they can be held secretly
[and] questioned by experts" -- he was not telling a secret but instead
converting a known and well-reported fact into an officially confirmed truth:
In addition to the terrorists held at Guantánamo, a small number of suspected
terrorist leaders and operatives captured during the war have been held and
questioned outside the United States, in a separate program operated by the
Central Intelligence Agency... Many specifics of this program, including where
these detainees have been held and the details of their confinement, cannot be
divulged...
We knew that Abu Zubaydah had more information that could save innocent lives,
but he stopped talking... And so the CIA used an alternative set of procedures.
These procedures were designed to be safe, to comply with our laws, our
Constitution, and our treaty obligations. The Department of Justice reviewed the
authorized methods extensively and determined them to be lawful. I cannot
describe the specific methods used -- I think you understand why...

I was watching the live broadcast that day and I remember the uncanny feeling
that came over me as, having heard the President explain the virtues of this
"alternative set of procedures," I watched him stare straight into the camera
and with fierce concentration and exaggerated emphasis intone once more: "The
United States does not torture. It's against our laws, and it's against our
values. I have not authorized it -- and I will not authorize it." He had
convinced himself, I thought, of the truth of what he said.

This speech, though not much noticed at the time, will stand, I believe, as
George W. Bush's most important: perhaps the only "historic" speech he ever
gave. In telling his version of Abu Zubaydah's story, and versions of the
stories of Khaled Shaik Mohammed and others, the President took hold of many
things that were already known but not acknowledged and, by means of the
alchemical power of the leader's voice, transformed them into acknowledged
facts. He also, in his fervent defense of his government's "alternative set of
procedures" and his equally fervent denials that they constituted "torture," set
out before the country and the world the dark moral epic of the Bush
administration, in the coils of whose contradictions we find ourselves entangled
still. Later that month, Congress, facing the midterm elections, duly passed the
President's Military Commissions Act of 2006, which, among other things, sought
to shelter from prosecution those who had applied the "alternative set of
procedures" and had done so, said the President, "in a thorough and professional
way."


At the same time, perhaps unwittingly, President Bush made it possible that day
for those on whom the "alternative set of procedures" were performed eventually
to speak. Even as the President set out before the country his version of what
had happened to Abu Zubaydah and the others and argued for its necessity, he
announced that he would bring him and thirteen of his fellow "high-value
detainees" out of the dark world of the disappeared and into the light. Or,
rather, into the twilight: the fourteen would be transferred to Guantánamo, the
main acknowledged offshore prison, where -- "as soon as Congress acts to
authorize the military commissions I have proposed" -- they "can face justice."
In the meantime, though, the fourteen would be "held in a high-security facility
at Guantánamo" and the International Committee of the Red Cross would be
"advised of their detention, and will have the opportunity to meet with them."

A few weeks later, from October 6 to 11 and then from December 4 to 14, 2006,
officials of the International Committee of the Red Cross -- among whose
official and legally recognized duties is to monitor compliance with the Geneva
Conventions and to supervise treatment of prisoners of war -- traveled to
Guantánamo and began interviewing "each of these persons in private" in order to
produce a report that would "provide a description of the treatment and material
conditions of detention of the fourteen during the period they were held in the
CIA detention program," periods ranging "from 16 months to almost four and a
half years."

As the ICRC interviewers informed the detainees, their report was not intended
to be released to the public but, "to the extent that each detainee agreed for
it to be transmitted to the authorities," to be given in strictest secrecy to
officials of the government agency that had been in charge of holding them -- in
this case the Central Intelligence Agency, to whose acting general counsel, John
Rizzo, the report was sent on February 14, 2007. Indeed, though almost all of
the information in the report has names attached, and though annexes contain
extended narratives drawn from interviews with three of the detainees, whose
names are used, we do find a number of times in the document variations of this
formula: "One of the detainees who did not wish his name to be transmitted to
the authorities alleged ... " -- suggesting that at least one and perhaps more
than one of the fourteen, who are, after all, still "held in a high-security
facility at Guantánamo," worried about repercussions that might come from what
he had said.

In virtually all such cases, the allegations made are echoed by other, named
detainees; indeed, since the detainees were kept "in continuous solitary
confinement and incommunicado detention" throughout their time in "the black
sites," and were kept strictly separated as well when they reached Guantánamo,
the striking similarity in their stories, even down to small details, would seem
to make fabrication extremely unlikely, if not impossible. "The ICRC wishes to
underscore," as the writers tell us in the introduction, "that the consistency
of the detailed allegations provided separately by each of the fourteen adds
particular weight to the information provided below."


The result is a document -- labeled "confidential" and clearly intended only for
the eyes of those senior American officials to whom the CIA's Mr. Rizzo would
show it -- that tells a certain kind of story, a narrative of what happened at
"the black sites" and a detailed description, by those on whom they were
practiced, of what the President of the United States described to Americans as
an "alternative set of procedures." It is a document for its time, literally
"impossible to put down," from its opening page --

Contents

Introduction

1. Main Elements of the CIA Detention Program

1.1 Arrest and Transfer

1.2 Continuous Solitary Confinement and Incommunicado Detention

1.3 Other Methods of Ill-treatment

1.3.1 Suffocation by water

1.3.2 Prolonged Stress Standing

1.3.3 Beatings by use of a collar

1.3.4 Beating and kicking

1.3.5 Confinement in a box

1.3.6 Prolonged nudity

1.3.7 Sleep deprivation and use of loud music

1.3.8 Exposure to cold temperature/cold water

1.3.9 Prolonged use of handcuffs and shackles

1.3.10 Threats

1.3.11 Forced shaving

1.3.12 Deprivation/restricted provision of solid food

1.4 Further elements of the detention regime...

 -- to its stark and unmistakable conclusion:

The allegations of ill-treatment of the detainees indicate that, in many cases,
the ill-treatment to which they were subjected while held in the CIA program,
either singly or in combination, constituted torture. In addition, many other
elements of the ill-treatment, either singly or in combination, constituted
cruel, inhuman or degrading treatment.

Such unflinching clarity, from the body legally charged with overseeing
compliance with the Geneva Conventions -- in which the terms "torture" and
"cruel, inhuman, and degrading treatment" are accorded a strictly defined legal
meaning -- couldn't be more significant, or indeed more welcome after years in
which the President of the United States relied on the power of his office
either to redefine or to obfuscate what are relatively simple words. "This
debate is occurring," as President Bush told reporters in the Rose Garden the
week after he delivered his East Room speech, because of the Supreme Court's
ruling that said that we must conduct ourselves under the Common Article III of
the Geneva Convention. And that Common Article III says that, you know, there
will be no outrages upon human dignity. It's like -- it's very vague. What does
that mean, "outrages upon human dignity"?[5]

In allowing Abu Zubaydah and the other thirteen "high-value detainees" to tell
their own stories, this report manages to answer, with great power and
authority, the President's question.

3.

We return to a man, Abu Zubaydah, a Palestinian who, in his thirty-one years,
has lived a life shaped by conflicts on the edge of the American consciousness:
the Gaza Strip, where his parents were born; Riyadh, Saudi Arabia, where he
apparently first saw the light of day; Soviet-occupied Afghanistan, where he
took part in the jihad against the Russians, perhaps with the help, directly or
indirectly, of American dollars; then, post-Soviet Afghanistan, where he ran al-
Qaeda logistics and recruitment, directing aspiring jihadists to the various
training camps, placing them in cells after they'd been trained. The man has
been captured now: traced to a safe house in Faisalabad, gravely wounded by
three shots from an AK-47. He is rushed to the Faisalabad hospital, then to the
military hospital at Lahore. When he opens his eyes he finds at his bedside an
American, John Kiriakou of the CIA:

I asked him in Arabic what his name was. And he shook his head. And I asked him
again in Arabic. And then he answered me in English. And he said that he would
not speak to me in God's language. And then I said, "That's okay. We know who
you are."

And then he asked me to smother him with a pillow. And I said, "No, no. We have
plans for you."[6]

Kiriakou and the "small group of CIA and FBI people who just kept 24/7 eyes on
him" knew that in Abu Zubaydah they had "the biggest fish that we had caught. We
knew he was full of information ... and we wanted to get it." According to
Kiriakou, on a table in the house where they found him "Abu Zubaydah and two
other men were building a bomb. The soldering [iron] was still hot. And they had
plans for a school on the table..." The plans, Kiriakou told ABC News
correspondent Brian Ross, were for the British school in Lahore. Their prisoner,
they knew, was "very current. On top of the current threat information."

With the help of the American trauma surgeon, Abu Zubaydah's captors nursed him
back to health. He was moved at least twice, first, reportedly, to Thailand;
then, he believes, to Afghanistan, probably Bagram. In a safe house in Thailand
the interrogation began:

I woke up, naked, strapped to a bed, in a very white room. The room measured
approximately [13 feet by 13 feet]. The room had three solid walls, with the
fourth wall consisting of metal bars separating it from a larger room. I am not
sure how long I remained in the bed. After some time, I think it was several
days, but can't remember exactly, I was transferred to a chair where I was kept,
shackled by [the] hands and feet for what I think was the next 2 to 3 weeks.
During this time I developed blisters on the underside of my legs due to the
constant sitting. I was only allowed to get up from the chair to go [to] the
toilet, which consisted of a bucket. Water for cleaning myself was provided in a
plastic bottle.

I was given no solid food during the first two or three weeks, while sitting on
the chair. I was only given Ensure [a nutrient supplement] and water to drink.
At first the Ensure made me vomit, but this became less with time.
The cell and room were air-conditioned and were very cold. Very loud, shouting
type music was constantly playing. It kept repeating about every fifteen minutes
twenty-four hours a day. Sometimes the music stopped and was replaced by a loud
hissing or crackling noise.

The guards were American, but wore masks to conceal their faces. My
interrogators did not wear masks.

During this first two to three week period I was questioned for about one to two
hours each day. American interrogators would come to the room and speak to me
through the bars of the cell. During the questioning the music was switched off,
but was then put back on again afterwards. I could not sleep at all for the
first two to three weeks. If I started to fall asleep one of the guards would
come and spray water in my face.

A naked man chained in a small, very cold, very white room is for several days
strapped to a bed, then for several weeks shackled to a chair, bathed
unceasingly in white light, bombarded constantly with loud sound, deprived of
food; and whenever, despite cold, light, noise, hunger, the hours and days force
his eyelids down, cold water is sprayed in his face to force them up.


One can translate these procedures into terms of art: "Change of Scenery Down."
"Removal of Clothing." "Use of Stress Positions." "Dietary Manipulation."
"Environmental Manipulation." "Sleep Adjustment." "Isolation." "Sleep
Deprivation." "Use of Noise to Induce Stress." All these terms and many others
can be found, for example, in documents associated with the debate about
interrogation and "counter-resistance" carried on by Pentagon and Justice
Department officials beginning in 2002. Here, however, we find a different
standard: the Working Group says, for example, that "Sleep Deprivation" is "not
to exceed 4 days in succession," that "Dietary Manipulation" should include "no
intended deprivation of food or water," that "removal of clothing," while
"creating a feeling of helplessness and dependence," must be "monitored to
ensure the environmental conditions are such that this technique does not injure
the detainee."[7] Here we are in a different place.

But what place? Abu Zubaydah was not only the "biggest fish that we had caught"
but the first big fish. According to Kiriakou, Zubaydah, as he recovered, had
"wanted to talk about current events. He told us a couple of times that he had
nothing personal against the United States... He said that 9/11 was necessary.
That although he didn't think that there would be such a massive loss of life,
his view was that 9/11 was supposed to be a wake-up call to the United States."

In those initial weeks of healing, before the white room and the chair and the
light, Zubaydah seems to have talked freely with his captors, and during this
time, according to news reports, FBI agents began to question him using
"standard interview techniques," ensuring that he was bathed and his bandages
changed, urging improved medical care, and trying to "convince him they knew
details of his activities." (They showed him, for example, a "box of blank
audiotapes which they said contained recordings of his phone conversations, but
were actually empty.") According to this account, Abu Zubaydah, in the initial
days before the white room, "began to provide intelligence insights into Al
Qaeda."[8]

Or did he? "How Good Is Abu Zubaydah's Information?" asked a Newsweek "Web
exclusive" on April 27, 2002, less than a month after his capture. The extreme
secrecy and isolation in which Abu Zubaydah was being held, at a location
unknown to him and to all but a tiny handful of government officials, did not
prevent his "information" being leaked from that unknown place directly into the
American press -- in the cause, apparently, of a bureaucratic struggle between
the FBI and the CIA. Even Americans who were not following closely the battling
leaks from Zubaydah's interrogation would have found their lives affected,
whether they knew it or not, by what was happening in that faraway white room;
for about the same time the Bush administration saw fit to issue two "domestic
terrorism warnings," derived from Abu Zubaydah's "tips" -- about "possible
attacks on banks or financial institutions in the Northeastern United States"
and possible "attacks on US supermarkets and shopping malls." As Newsweek
learned from a "senior US official," presumably from the FBI -- whose "standard
interview techniques" had produced that information and the "domestic terrorism
warnings" based on it -- the prisoner was "providing detailed information for
the 'fight against terrorism.'" At the same time, however, "US intelligence
sources" -- presumably CIA -- "wonder whether he's trying to mislead
investigators or frighten the American public."[9]

For his part, John Kiriakou, the CIA man, told ABC News that in those early
weeks Zubaydah was "willing to talk about philosophy, [but] he was unwilling to
give us any actionable intelligence." The CIA officers had the "sweeping
classified directive signed by Mr. Bush," giving them authority to "capture,
detain and interrogate terrorism suspects," and Zubaydah was "a test case for an
evolving new role, ... in which the agency was to act as jailer and interrogator
of terrorism suspects." Eventually a team from the CIA's Counterterrorism Center
was "sent in from Langley" and the FBI interrogators were withdrawn.

We had these trained interrogators who were sent to his location to use the
enhanced techniques as necessary to get him to open up, and to report some
threat information... These enhanced techniques included everything from what
was called an attention shake, where you grab the person by their lapels and
shake them, all the way up to the other end, which is waterboarding.


They began, apparently, by shackling him to the chair, and applying light,
noise, and water to keep him awake. After two or three weeks of this Abu
Zubaydah, still naked and shackled, was allowed to lie on the bare floor and to
"sleep a little." He was also given solid food -- rice -- for the first time.
Eventually a doctor, a woman, came and examined him, and "asked why I was still
naked." The next day he was "provided with orange clothes to wear." The
following day, however, "guards came into my cell. They told me to stand up and
raise my arms above my head. They then cut the clothes off of me so that I was
again naked and put me back on the chair for several days. I tried to sleep on
the chair, but was again kept awake by the guards spraying water in my face."

What follows is a confusing period, in which harsh treatment alternated with
more lenient. Zubaydah was mostly naked and cold, "sometimes with the air
conditioning adjusted so that, one official said, Mr. Zubayah seemed to turn
blue."[10] Sometimes clothing would be brought, then removed the next day. "When
my interrogators had the impression that I was cooperating and providing the
information they required, the clothes were given back to me. When they felt I
was being less cooperative the clothes were again removed and I was again put
back on the chair." At one point he was supplied with a mattress, at another he
was "allowed some tissue paper to use when going to toilet on the bucket." A
month passed with no questioning. "My cell was still very cold and the loud
music no longer played but there was a constant loud hissing or crackling noise,
which played twenty-four hours a day. I tried to block out the noise by putting
tissue in my ears." Then, "about two and half or three months after I arrived in
this place, the interrogation began again, but with more intensity than before."

It is difficult to know whether these alterations in attitude and procedure were
intended, meant to keep the detainee off-guard, or resulted from disputes about
strategy among the interrogators, who were relying on a hastily assembled
"alternative set of procedures" that had been improvised from various sources,
including scientists and psychiatrists within the intelligence community,
experts from other, "friendly" governments, and consultants who had worked with
the US military and now "reverse-engineered" the resistance training taught to
American elite forces to help them withstand interrogation after capture. The
forerunners of some of the theories being applied in these interrogations,
involving sensory deprivation, disorientation, guilt and shame, so-called
"learned helplessness," and the need to induce "the debility-dependence-dread
state," can be found in CIA documents dating back nearly a half-century, such as
this from a notorious "counterintelligence interrogation" manual of the early
1960s:

The circumstances of detention are arranged to enhance within the subject his
feelings of being cut off from the known and the reassuring, and of being
plunged into the strange... Control of the source's environment permits the
interrogator to determine his diet, sleep pattern and other fundamentals.
Manipulating these into irregularities, so that the subject becomes
disorientated, is very likely to create feelings of fear and helplessness.[11]

A later version of the same manual emphasizes the importance of guilt: "If the
'questioner' can intensify these guilt feelings, it will increase the subject's
anxiety and his urge to cooperate as a means of escape." Isolation and sensory
deprivation will "induce regression" and the "loss of those defenses most
recently acquired by civilized man," while the imposition of "stress positions"
that in effect force the subject "to harm himself" will produce a guilt leading
to an irresistible desire to cooperate with his interrogators.

4.

Two and a half months after Abu Zubaydah woke up strapped to a bed in the white
room, the interrogation resumed "with more intensity than before":

Two black wooden boxes were brought into the room outside my cell. One was tall,
slightly higher than me and narrow. Measuring perhaps in area [3 1/2 by 2 1/2
feet by 6 1/2 feet high]. The other was shorter, perhaps only [3 1/2 feet] in
height. I was taken out of my cell and one of the interrogators wrapped a towel
around my neck, they then used it to swing me around and smash me repeatedly
against the hard walls of the room. I was also repeatedly slapped in the face...

I was then put into the tall black box for what I think was about one and a half
to two hours. The box was totally black on the inside as well as the outside...
They put a cloth or cover over the outside of the box to cut out the light and
restrict my air supply. It was difficult to breathe. When I was let out of the
box I saw that one of the walls of the room had been covered with plywood
sheeting. From now on it was against this wall that I was then smashed with the
towel around my neck. I think that the plywood was put there to provide some
absorption of the impact of my body. The interrogators realized that smashing me
against the hard wall would probably quickly result in physical injury.

One is reminded here that Abu Zubaydah was not alone with his interrogators,
that everyone in that white room -- guards, interrogators, doctor -- was in fact
linked directly, and almost constantly, to senior intelligence officials on the
other side of the world. "It wasn't up to individual interrogators to decide,
'Well, I'm gonna slap him. Or I'm going to shake him. Or I'm gonna make him stay
up for 48 hours," said John Kiriakou.

"Each one of these steps... had to have the approval of the Deputy Director for
Operations. So before you laid a hand on him, you had to send in the cable
saying, "He's uncooperative. Request permission to do X." And that permission
would come... The cable traffic back and forth was extremely specific. And the
bottom line was these were very unusual authorities that the agency got after
9/11. No one wanted to mess them up. No one wanted to get in trouble by going
overboard... No one wanted to be the guy who accidentally did lasting damage to
a prisoner."

Smashing against hard walls before Zubaydah enters the tall black coffin-like
box; sudden appearance of plywood sheeting affixed to the wall for him to be
smashed against when he emerges. Perhaps the deputy director of operations,
pondering the matter in his Langley, Virginia, office, suggested the plywood?

Or perhaps it was someone higher up? Shortly after Abu Zubaydah was captured,
according to ABC News, CIA officers "briefed high-level officials in the
National Security Council's Principals Committee," including Vice President Dick
Cheney, National Security Adviser Condoleezza Rice, and Attorney General John
Ashcroft, who "then signed off on the [interrogation] plan." At the time, the
spring and summer of 2002, the administration was devising what some referred to
as a "golden shield" from the Justice Department -- the legal rationale that was
embodied in the infamous "torture memorandum," written by John Yoo and signed by
Jay Bybee in August 2002, which claimed that for an "alternative procedure" to
be considered torture, and thus illegal, it would have to cause pain of the sort
"that would be associated with serious physical injury so severe that death,
organ failure, or permanent damage resulting in a loss of significant body
function will likely result." The "golden shield" presumably would protect CIA
officers from prosecution. Still, Director of Central Intelligence George Tenet
regularly brought directly to the attention of the highest officials of the
government specific procedures to be used on specific detainees -- "whether they
would be slapped, pushed, deprived of sleep or subject to simulated drowning" --
in order to seek reassurance that they were legal. According to the ABC report,
the briefings of principals were so detailed and frequent that "some of the
interrogation sessions were almost choreographed." At one such meeting, John
Ashcroft, then attorney general, reportedly demanded of his colleagues, "Why are
we talking about this in the White House? History will not judge this
kindly."[12]


We do not know if the plywood appeared in Zubaydah's white room thanks to orders
from his interrogators, from their bosses at Langley, or perhaps from their
superiors in the White House. We don't know the precise parts played by those
responsible for "choreographing" the "alternative set of procedures." We do know
from several reports that at a White House meeting in July 2002 top
administration lawyers gave the CIA "the green light" to move to the "more
aggressive techniques" that were applied to him, separately and in combination,
during the following days:

After the beating I was then placed in the small box. They placed a cloth or
cover over the box to cut out all light and restrict my air supply. As it was
not high enough even to sit upright, I had to crouch down. It was very difficult
because of my wounds. The stress on my legs held in this position meant my
wounds both in the leg and stomach became very painful. I think this occurred
about 3 months after my last operation. It was always cold in the room, but when
the cover was placed over the box it made it hot and sweaty inside. The wound on
my leg began to open and started to bleed. I don't know how long I remained in
the small box, I think I may have slept or maybe fainted.

I was then dragged from the small box, unable to walk properly and put on what
looked like a hospital bed, and strapped down very tightly with belts. A black
cloth was then placed over my face and the interrogators used a mineral water
bottle to pour water on the cloth so that I could not breathe. After a few
minutes the cloth was removed and the bed was rotated into an upright position.
The pressure of the straps on my wounds was very painful. I vomited. The bed was
then again lowered to horizontal position and the same torture carried out again
with the black cloth over my face and water poured on from a bottle. On this
occasion my head was in a more backward, downwards position and the water was
poured on for a longer time. I struggled against the straps, trying to breathe,
but it was hopeless. I thought I was going to die. I lost control of my urine.
Since then I still lose control of my urine when under stress.

I was then placed again in the tall box. While I was inside the box loud music
was played again and somebody kept banging repeatedly on the box from the
outside. I tried to sit down on the floor, but because of the small space the
bucket with urine tipped over and spilt over me... I was then taken out and
again a towel was wrapped around my neck and I was smashed into the wall with
the plywood covering and repeatedly slapped in the face by the same two
interrogators as before.

I was then made to sit on the floor with a black hood over my head until the
next session of torture began. The room was always kept very cold.

This went on for approximately one week. During this time the whole procedure
was repeated five times. On each occasion, apart from one, I was suffocated once
or twice and was put in the vertical position on the bed in between. On one
occasion the suffocation was repeated three times. I vomited each time I was put
in the vertical position between the suffocation.

During that week I was not given any solid food. I was only given Ensure to
drink. My head and beard were shaved everyday.

I collapsed and lost consciousness on several occasions. Eventually the torture
was stopped by the intervention of the doctor.

I was told during this period that I was one of the first to receive these
interrogation techniques, so no rules applied. It felt like they were
experimenting and trying out techniques to be used later on other people.

5.

All evidence from the ICRC report suggests that Abu Zubaydah's informant was
telling him the truth: he was the first, and, as such, a guinea pig. Some
techniques are discarded. The coffin-like black boxes, for example, barely large
enough to contain a man, one six feet tall and the other scarcely more than
three feet, which seem to recall the sensory-deprivation tanks used in early
CIA-sponsored experiments, do not reappear. Neither does the "long-time sitting"
-- the weeks shackled to a chair -- that Abu Zubaydah endured in his first few
months.

Nudity, on the other hand, is a constant in the ICRC report, as are permanent
shackling, the "cold cell," and the unceasing loud music or noise. Sometimes
there is twenty-four-hour light, sometimes constant darkness. Beatings, also,
and smashing against the walls seem to be favored procedures; often, the
interrogators wear gloves.

In later interrogations new techniques emerge, of which "long-time standing" and
the use of cold water are notable. Walid Bin Attash, a Yemeni national involved
with planning the attacks on the US embassies in Africa in 1998 and on the USS
Cole in 2000, was captured in Karachi on April 29, 2003:

On arrival at the place of detention in Afghanistan I was stripped naked. I
remained naked for the next two weeks. I was put in a cell measuring
approximately [3 1/2 by 6 1/2 feet]. I was kept in a standing position, feet
flat on the floor, but with my arms above my head and fixed with handcuffs and a
chain to a metal bar running across the width of the cell. The cell was dark
with no light, artificial or natural.

During the first two weeks I did not receive any food. I was only given Ensure
and water to drink. A guard would come and hold the bottle for me while I
drank... The toilet consisted of a bucket in the cell... I was not allowed to
clean myself after using the bucket. Loud music was playing twenty-four hours
each day throughout the three weeks I was there.

This "forced standing," with arms shackled above the head, a favorite Soviet
technique ( stoika ) that seems to have become standard procedure after Abu
Zubaydah, proved especially painful for Bin Attash, who had lost a leg fighting
in Afghanistan:

After some time being held in this position my stump began to hurt so I removed
my artificial leg to relieve the pain. Of course my good leg then began to ache
and soon started to give way so that I was left hanging with all my weight on my
wrists. I shouted for help but at first nobody came. Finally, after about one
hour a guard came and my artificial leg was given back to me and I was again
placed in the standing position with my hands above my head. After that the
interrogators sometimes deliberately removed my artificial leg in order to add
extra stress to the position...

By his account, Bin Attash was kept in this position for two weeks -- "apart
[from] two or three times when I was allowed to lie down." Though "the methods
used were specifically designed not to leave marks," the cuffs eventually "cut
into my wrists and made wounds. When this happened the doctor would be called."
At a second location, where Bin Attash was again stripped naked and placed "in a
standing position with my arms above my head and fixed with handcuffs and a
chain to a metal ring in the ceiling," a doctor examined his lower leg every day
-- "using a tape measure for signs of swelling."

I do not remember for exactly how many days I was kept standing, but I think it
was about ten days... During the standing I was made to wear a diaper. However,
on some occasions the diaper was not replaced and so I had to urinate and
defecate over myself. I was washed down with cold water everyday.

Cold water was used on Bin Attash in combination with beatings and the use of a
plastic collar, which seems to have been a refinement of the towel that had been
looped around Abu Zubaydah's neck:

Every day for the first two weeks I was subjected to slaps to my face and
punches to my body during interrogation. This was done by one interrogator
wearing gloves...

Also on a daily basis during the first two weeks a collar was looped around my
neck and then used to slam me against the walls of the interrogation room. It
was also placed around my neck when being taken out of my cell for interrogation
and was used to lead me along the corridor. It was also used to slam me against
the walls of the corridor during such movements.

Also on a daily basis during the first two weeks I was made to lie on a plastic
sheet placed on the floor which would then be lifted at the edges. Cold water
was then poured onto my body with buckets... I would be kept wrapped inside the
sheet with the cold water for several minutes. I would then be taken for
interrogation...

Bin Attash notes that in the "second place of detention" -- where he was put in
the diaper -- "they were rather more sophisticated than in Afghanistan because
they had a hose-pipe with which to pour the water over me."

6.

A clear method emerges from these accounts, based on forced nudity, isolation,
bombardment with noise and light, deprivation of sleep and food, and repeated
beatings and "smashings" -- though from this basic model one can see the method
evolve, from forced sitting to forced standing, for example, and acquire new
elements, like immersion in cold water.

Khaled Shaik Mohammed, the key planner of the September 11 attacks who was
captured in Rawalpindi on March 1, 2003 -- nine of the fourteen "high-value
detainees" were apprehended in Pakistan -- and, after a two-day detention in
Pakistan during which he alleges that a "CIA agent ... punched him several times
in the stomach, chest and face [and] ... threw him on the floor and trod on his
face," was sent to Afghanistan using the standard "transfer procedures." ("My
eyes were covered with a cloth tied around my head and with a cloth bag pulled
over it. A suppository was inserted into my rectum. I was not told what the
suppository was for.") In Afghanistan, he was stripped and placed in a small
cell, where he "was kept in a standing position with my hands cuffed and chained
to a bar above my head. My feet were flat on the floor." After about an hour,

I was taken to another room where I was made to stand on tiptoes for about two
hours during questioning. Approximately thirteen persons were in the room. These
included the head interrogator (a man) and two female interrogators, plus about
ten muscle guys wearing masks. I think they were all Americans. From time to
time one of the muscle guys would punch me in the chest and stomach.

These "full-dress" interrogations -- where the detainee stands naked, on tiptoe,
amid a crowd of thirteen people, including "ten muscle guys wearing masks" --
were periodically interrupted by the detainee's removal to a separate room for
additional procedures:

Here cold water from buckets was thrown onto me for about forty minutes. Not
constantly as it took time to refill the buckets. After which I would be taken
back to the interrogation room.

On one occasion during the interrogation I was offered water to drink, when I
refused I was again taken to another room where I was made to lie [on] the floor
with three persons holding me down. A tube was inserted into my anus and water
poured inside. Afterwards I wanted to go to the toilet as I had a feeling as if
I had diarrhoea. No toilet access was provided until four hours later when I was
given a bucket to use.

Whenever I was returned to my cell I was always kept in the standing position
with my hands cuffed and chained to a bar above my head.


After three days in what he believes was Afghanistan, Mohammed was again dressed
in a tracksuit, blindfold, hood, and headphones, and shackled and placed aboard
a plane "sitting, leaning back, with my hands and ankles shackled in a high
chair." He quickly fell asleep -- "the first proper sleep in over five days" --
and remains unsure of how long the journey took. On arrival, however, he
realized he had come a long way:

I could see at one point there was snow on the ground. Everybody was wearing
black, with masks and army boots, like Planet-X people. I think the country was
Poland. I think this because on one occasion a water bottle was brought to me
without the label removed. It had [an] e-mail address ending in ".pl."

He was stripped and put in a small cell "with cameras where I was later informed
by an interrogator that I was monitored 24 hours a day by a doctor, psychologist
and interrogator." He believes the cell was underground because one had to
descend steps to reach it. Its walls were of wood and it measured about ten by
thirteen feet.

It was in this place, according to Mohammed, that "the most intense
interrogation occurred, led by three experienced CIA interrogators, all over 65
years old and all strong and well trained." They informed him that they had
received the "green light from Washington" to give him " a hard time." "They
never used the word 'torture' and never referred to 'physical pressure,' only to
' a hard time. ' I was never threatened with death, in fact I was told that they
would not allow me to die, but that I would be brought to the ' verge of death
and back again.'"

I was kept for one month in the cell in a standing position with my hands cuffed
and shackled above my head and my feet cuffed and shackled to a point in the
floor. Of course during this month I fell asleep on some occasions while still
being held in this position. This resulted in all my weight being applied to the
handcuffs around my wrist resulting in open and bleeding wounds. [Scars
consistent with this allegation were visible on both wrists as well as on both
ankles.] Both my feet became very swollen after one month of almost continual
standing.[13]

For interrogation, Mohammed was taken to a different room. The sessions last for
as long as eight hours and as short as four.

The number of people present varied greatly from one day to another. Other
interrogators, including women, were also sometimes present... A doctor was
usually also present. If I was perceived not to be cooperating I would be put
against a wall and punched and slapped in the body, head and face. A thick
flexible plastic collar would also be placed around my neck so that it could
then be held at the two ends by a guard who would use it to slam me repeatedly
against the wall. The beatings were combined with the use of cold water, which
was poured over me using a hose-pipe. The beatings and use of cold water
occurred on a daily basis during the first month.


Like Abu Zubaydah; like Abdelrahim Hussein Abdul Nashiri, a Saudi who was
captured in Dubai in October 2002, Mohammed was also subjected to waterboarding,
by his account on five occasions:

I would be strapped to a special bed, which could be rotated into a vertical
position. A cloth would be placed over my face. Cold water from a bottle that
had been kept in a fridge was then poured onto the cloth by one of the guards so
that I could not breathe... The cloth was then removed and the bed was put into
a vertical position. The whole process was then repeated during about one hour.
Injuries to my ankles and wrists also occurred during the water-boarding as I
struggled in the panic of not being able to breath. Female interrogators were
also present ... and a doctor was always present, standing out of sight behind
the head of [the] bed, but I saw him when he came to fix a clip to my finger
which was connected to a machine. I think it was to measure my pulse and oxygen
content in my blood. So they could take me to [the] breaking point.

As with Zubaydah, the harshest sessions of interrogation involved the
"alternative set of procedures" used in sequence and in combination, one
technique intensifying the effects of the others:

The beatings became worse and I had cold water directed at me from a hose-pipe
by guards while I was still in my cell. The worst day was when I was beaten for
about half an hour by one of the interrogators. My head was banged against the
wall so hard that it started to bleed. Cold water was poured over my head. This
was then repeated with other interrogators. Finally I was taken for a session of
water boarding. The torture on that day was finally stopped by the intervention
of the doctor. I was allowed to sleep for about one hour and then put back in my
cell standing with my hands shackled above my head.

Reading the ICRC report, one becomes eventually somewhat inured to the
"alternative set of procedures" as they are described: the cold and repeated
violence grows numbing. Against this background, the descriptions of daily life
of the detainees in the black sites, in which interrogation seems merely a
periodic heightening of consistently imposed brutality, become more striking.
Here again is Mohammed:

After each session of torture I was put into a cell where I was allowed to lie
on the floor and could sleep for a few minutes. However, due to shackles on my
ankles and wrists I was never able to sleep very well...The toilet consisted of
a bucket in the cell, which I could use on request [he was shackled standing,
his hands affixed to the ceiling], but I was not allowed to clean myself after
toilet during the first month... During the first month I was not provided with
any food apart from on two occasions as a reward for perceived cooperation. I
was given Ensure to drink every 4 hours. If I refused to drink then my mouth was
forced open by the guard and it was poured down my throat by force... At the
time of my arrest I weighed 78kg. After one month in detention I weighed 60kg.

I wasn't given any clothes for the first month. Artificial light was on 24 hours
a day, but I never saw sunlight.

7.

        Q: Mr. President, ...this is a moral question: Is torture ever
        justified?

        President George W. Bush: Look, I'm going to say it one more time...
        Maybe I can be more clear. The instructions went out to our people to
        adhere to law. That ought to comfort you. We're a nation of law. We
        adhere to laws. We have laws on the books. You might look at these laws,
        and that might provide comfort for you.

        -- Sea Island, Georgia, June 10, 2004


Abu Zubaydah, Walid Bin Attash, Khaled Shaik Mohammed -- these men almost
certainly have blood on their hands, a great deal of blood. There is strong
reason to believe that they had critical parts in planning and organizing
terrorist operations that caused the deaths of thousands of people. So in all
likelihood did the other twelve "high-value detainees" whose treatment while
secretly confined by agents of the US government is described with such gruesome
particularity in the report of the International Committee of the Red Cross.
From everything we know, many or all of these men deserve to be tried and
punished -- to be "brought to justice," as President Bush, in his speech to the
American people on September 6, 2006, vowed they would be.

It seems unlikely that they will be brought to justice anytime soon. In mid-
January, Susan J. Crawford, who had been appointed by the Bush administration to
decide which Guantánamo detainees should be tried before military commissions,
declined to refer to trial Mohammed al-Qahtani, who was to have been among the
September 11 hijackers but who had been turned back by immigration officials at
Orlando International Airport. After he was captured in Afghanistan in late
2002, Qahtani was imprisoned in Guantánamo and interrogated by Department of
Defense intelligence officers. Crawford, a retired judge and former general
counsel of the army, told TheWashington Post that she had concluded that
Qahtani's "treatment met the legal definition of torture."

The techniques they used were all authorized, but the manner in which they
applied them was overly aggressive and too persistent...

You think of torture, you think of some horrendous physical act done to an
individual. This was not any one particular act; this was just a combination of
things that had a medical impact on him, that hurt his health. It was abusive
and uncalled for. And coercive. Clearly coercive.[14]

Qahtani's interrogation at Guantánamo, accounts of which have appeared in Time
and The Washington Post, was intense and prolonged, stretching for fifty
consecutive days beginning in the late fall of 2002, and led to his
hospitalization on at least two occasions. Some of the techniques used,
including longtime sitting in restraints, prolonged exposure to cold, loud
music, and noise, and sleep deprivation, recall those described in the ICRC
report. If the "coercive" and "abusive" interrogation of Qahtani makes trying
him impossible, one may doubt that any of the fourteen "high-value detainees"
whose accounts are given in this report will ever be tried and sentenced in an
internationally recognized and sanctioned legal proceeding.


In the case of men who have committed great crimes, this seems to mark perhaps
the most important and consequential sense in which "torture doesn't work." The
use of torture deprives the society whose laws have been so egregiously violated
of the possibility of rendering justice. Torture destroys justice. Torture in
effect relinquishes this sacred right in exchange for speculative benefits whose
value is, at the least, much disputed. John Kiriakou, the CIA officer who
witnessed part of Zubaydah's interrogation, described to Brian Ross of ABC News
what happened after Zubaydah was waterboarded:
He resisted. He was able to withstand the water boarding for quite some time.
And by that I mean probably 30, 35 seconds... And a short time afterwards, in
the next day or so, he told his interrogator that Allah had visited him in his
cell during the night and told him to cooperate because his cooperation would
make it easier on the other brothers who had been captured. And from that day on
he answered every question just like I'm sitting here speaking to you... The
threat information that he provided disrupted a number of attacks, maybe dozens
of attacks.

This claim, echoed by President Bush in his speech, is a matter of fierce
dispute. Bush's public version, indeed, was much more carefully circumscribed:
among other things, that Zubaydah's information confirmed the alias ("Muktar")
of Khaled Shaik Mohammed, and thus helped lead to his capture; that it helped
lead, indirectly, to the capture of Ramzi bin al-Shibh, a Yemeni who was another
key figure in planning the September 11 attacks; and that it "helped us stop
another planned attack within the United States."

At least some of this information, apparently, came during the early,
noncoercive interrogation led by FBI agents. Later, according to the reporter
Ron Suskind, Zubaydah
named countless targets inside the US to stop the pain, all of them immaterial.
Indeed, think back to the sudden slew of alerts in the spring and summer of 2002
about attacks on apartment buildings, banks, shopping malls and, of course,
nuclear plants.

Suskind is only the most prominent of a number of reporters with strong sources
in the intelligence community who argue that the importance of the intelligence
Zubaydah supplied, and indeed his importance within al-Qaeda, have been grossly
and systematically exaggerated by government officials, from President Bush on
down.[15]

Though it seems highly unlikely that Zubaydah's information stopped "maybe
dozens of attacks," as Kiriakou said, the plain fact is that it is impossible,
until a thorough investigation can be undertaken of the interrogations, to
evaluate fully and fairly what intelligence the United States actually received
in return for all the severe costs, practical, political, legal, and moral, the
country incurred by instituting a policy of torture. There is a sense in which
the entire debate over what Zubaydah did or did not provide, and the attacks the
information might or might not have prevented -- a debate driven largely by
leaks by fiercely self-interested parties -- itself reflects an unvoiced
acceptance, on both sides, of the centrality of the mythical "ticking-bomb
scenario" so beloved of those who argue that torture is necessary, and so prized
by the writers of television dramas like 24. That is, the argument centers on
whether Zubaydah's interrogation directly "disrupted a number of attacks."


Perhaps unwittingly, Kiriakou is most revealing about the intelligence value of
interrogation of "high-value detainees" when he discusses what the CIA actually
got from Zubaydah:
What he was able to provide was information on the al-Qaeda leadership. For
example, if bin Laden were to do X, who would be the person to undertake such
and such an operation? "Oh, logically that would be Mr. Y." And we were able to
use that information to kind of get an idea of how al-Qaeda operated, how it
came about conceptualizing its operations, and how it went about tasking
different cells with carrying out operations... His value was, it allowed us to
have somebody who we could pass ideas onto for his comments or analysis.

This has the ring of truth, for this is how intelligence works -- by the patient
accruing of individual pieces of information, by building a picture that will
help officers make sense of the other intelligence they receive. Could such
"comments or analysis" from a high al-Qaeda operative eventually help lead to
the disruption of "a number of attacks, maybe dozens of attacks"? It seems
possible -- but if it did, the chain of cause and effect might not be direct,
certainly not nearly so direct as the dramatic scenarios in newspapers and
television dramas -- and presidential speeches -- suggest. The ticking bomb,
about to explode and kill thousands or millions; the evil captured terrorist who
alone has the information to find and disarm it; the desperate intelligence
operative, forced to do whatever is necessary to gain that information -- all
these elements are well known and emotionally powerful, but where they appear
most frequently is in popular entertainment, not in white rooms in Afghanistan.

There is a reverse side, of course, to the "ticking bomb" and torture: pain and
ill-treatment, by creating an unbearable pressure on the detainee to say
something, anything, to make the pain stop, increase the likelihood that he will
fabricate stories, and waste time, or worse. At least some of the intelligence
that came of the "alternative set of procedures," like Zubaydah's supposed
"information" about attacks on shopping malls and banks, seems to have led the
US government to issue what turned out to be baseless warnings to Americans.
Khaled Shaik Mohammed asserted this directly in his interviews with the ICRC.
"During the harshest period of my interrogation," he said,
I gave a lot of false information in order to satisfy what I believed the
interrogators wished to hear in order to make the ill-treatment stop... I'm sure
that the false information I was forced to invent ... wasted a lot of their time
and led to several false red-alerts being placed in the US.

For all the talk of ticking bombs, very rarely, if ever, have officials been
able to point to information gained by interrogating prisoners with "enhanced
techniques" that enabled them to prevent an attack that had reached its
"operational stage" (that is, had gone beyond reconnoitering and planning).
Still, widespread perception that such techniques have prevented attacks,
actively encouraged by the President and other officials, has been politically
essential in letting the administration carry on with these policies after they
had largely become public. Polls tend to show that a majority of Americans are
willing to support torture only when they are assured that it will "thwart a
terrorist attack." Because of the political persuasiveness of such scenarios it
is vital that a future inquiry truly investigate claims that attacks have been
prevented.


As I write, it is impossible to know what benefits -- in intelligence, in
national security, in disrupting al-Qaeda -- the President's approval of use of
an "alternative set of procedures" might have brought to the United States. What
we can say definitively is that the decision has harmed American interests in
quite demonstrable ways. Some are practical and specific: for example, FBI
agents, many of them professionals with great experience and skill in
interrogation, were withdrawn, apparently after objections by the bureau's
leaders, when it was decided to use the "alternative set of procedures" on Abu
Zubaydah. Extensive leaks to the press, from both officials supportive of and
critical of the "alternative set of procedures," undermined what was supposed to
be a highly secret program; those leaks, in large part a product of the great
controversy the program provoked within the national security bureaucracy,
eventually helped make it unsustainable.

Finally, this bureaucratic weakness led officials of the CIA to destroy,
apparently out of fear of eventual exposure and possible prosecution, a trove of
as many as ninety-two video recordings that had been made of the interrogations,
all but two of them of Abu Zubaydah. Whether or not the prosecutor investigating
those actions determines that they were illegal, it is hard to believe that the
recordings did not include valuable intelligence, which was sacrificed, in
effect, for political reasons. These recordings doubtless could have played a
critical part as well in the effort to determine what benefits, if any, the
program brought to the security of the United States.


Far and away the greatest damage, though, was legal, moral, and political. In
the wake of the ICRC report one can make several definitive statements:

1. Beginning in the spring of 2002 the United States government began to torture
prisoners. This torture, approved by the President of the United States and
monitored in its daily unfolding by senior officials, including the nation's
highest law enforcement officer, clearly violated major treaty obligations of
the United States, including the Geneva Conventions and the Convention Against
Torture, as well as US law.

2. The most senior officers of the US government, President George W. Bush first
among them, repeatedly and explicitly lied about this, both in reports to
international institutions and directly to the public. The President lied about
it in news conferences, interviews, and, most explicitly, in speeches expressly
intended to set out the administration's policy on interrogation before the
people who had elected him.

3. The US Congress, already in possession of a great deal of information about
the torture conducted by the administration -- which had been covered widely in
the press, and had been briefed, at least in part, from the outset to a select
few of its members -- passed the Military Commissions Act of 2006 and in so
doing attempted to protect those responsible from criminal penalty under the War
Crimes Act.

4. Democrats, who could have filibustered the bill, declined to do so -- a
decision that had much to do with the proximity of the midterm elections, in the
run-up to which, they feared, the President and his Republican allies might gain
advantage by accusing them of "coddling terrorists." One senator summarized the
politics of the Military Commissions Act with admirable forthrightness:
Soon, we will adjourn for the fall, and the campaigning will begin in earnest.
And there will be 30-second attack ads and negative mail pieces, and we will be
criticized as caring more about the rights of terrorists than the protection of
Americans. And I know that the vote before us was specifically designed and
timed to add more fuel to that fire.[16]

Senator Barack Obama was only saying aloud what every other legislator knew:
that for all the horrified and gruesome exposés, for all the leaked photographs
and documents and horrific testimony, when it came to torture in the September
11 era, the raw politics cut in the other direction. Most politicians remain
convinced that still fearful Americans -- given the choice between the image of
24's Jack Bauer, a latter-day Dirty Harry, fantasy symbol of untrammeled power
doing "everything it takes" to protect them from that ticking bomb, and the
image of weak liberals "reading Miranda rights to terrorists" -- will choose
Bauer every time. As Senator Obama said, after the bill he voted against had
passed, "politics won today."

5. The political damage to the United States' reputation, and to the "soft
power" of its constitutional and democratic ideals, has been, though difficult
to quantify, vast and enduring. In a war that is essentially an insurgency
fought on a worldwide scale -- which is to say, a political war, in which the
attitudes and allegiances of young Muslims are the critical target of
opportunity -- the United States' decision to use torture has resulted in an
enormous self-administered defeat, undermining liberal sympathizers of the
United States and convincing others that the country is exactly as its enemies
paint it: a ruthless imperial power determined to suppress and abuse Muslims. By
choosing to torture, we freely chose to become the caricature they made of us.

8.

In the wake of the attacks of September 11, 2001, Cofer Black, the former head
of the CIA's Counterterrorism Center and a famously colorful hard-liner,
appeared before the Senate Intelligence Committee and made the most telling
pronouncement of the era: "All I want to say is that there was 'before' 9/11 and
'after' 9/11. After 9/11 the gloves come off." In the days after the attacks
this phrase was everywhere. Columnists quoted it, television commentators
flaunted it, interrogators at Abu Ghraib used it in their cables. ("The gloves
are coming off gentlemen regarding these detainees, Col Boltz has made it clear
that we want these individuals broken."[17] )

The gloves came off: four simple words. And yet they express a complicated
thought. For if the gloves must come off, that means that before the attacks the
gloves were on. There is something implicitly exculpatory in the image,
something that made it particularly appealing to officials of an administration
that endured, on its watch, the most lethal terrorist attack in the country's
history. If the attack succeeded, it must have had to do not with the fact that
intelligence was not passed on or that warnings were not heeded or that senior
officials did not focus on terrorism as a leading threat. It must have been, at
least in part, because the gloves were on -- because the post-Watergate reforms
of the 1970s, in which Congress sought to put limits on the CIA, on its freedom
to mount covert actions with "deniability" and to conduct surveillance at home
and abroad, had illegitimately circumscribed the President's power and thereby
put the country dangerously at risk. It is no accident that two of the
administration's most powerful officials, Dick Cheney and Donald Rumsfeld,
served as young men in very senior positions in the Nixon and Ford
administrations. They had witnessed firsthand the gloves going on and, in the
weeks after the September 11 attacks, they argued powerfully that it was those
limitations -- and, it was implied, not a failure to heed warnings -- that had
helped lead, however indirectly, to the country's vulnerability to attack.

And so, after a devastating and unprecedented attack, the gloves came off.
Guided by the President and his closest advisers, the United States transformed
itself from a country that, officially at least, condemned torture to a country
that practiced it. And this fateful decision, however much we may want it to,
will not go away, any more than the fourteen "high-value detainees," tortured
and thus unprosecutable, will go away. Like the grotesque stories in the ICRC
report, the decision sits before us, a toxic fact, polluting our political and
moral life.


Since the inauguration of President Obama, the previous administration's
"alternative procedures" have acquired a prominence in the press, particularly
on cable television, that they rarely achieved when they were actually being
practiced on detainees. This is especially the case with waterboarding, which
according to the former director of the CIA has not been used since 2003. On his
first day in office, President Obama issued executive orders that stopped the
use of these techniques and provided for task forces to study US government
policies on rendition, detention, and interrogation, among others.

Meantime, Democratic leaders in Congress, who have been in control since 2006,
have at last embarked on serious investigations. Senators Dianne Feinstein and
Christopher Bond, the chair and ranking member of the Intelligence Committee,
have announced a "review of the CIA's detention and interrogation program,"
which would study, among other questions, "how the CIA created, operated, and
maintained its detention and interrogation program," make "an evaluation of
intelligence information gained through the use of enhanced and standard
interrogation techniques," and investigate "whether the CIA accurately described
the detention and interrogation program to other parts of the US government" --
including, notably, "the Senate Intelligence Committee." The hearings, according
to reports, are unlikely to be public.

In February, Senator Patrick Leahy, chairman of the Judiciary Committee, called
for the establishment of what he calls a "nonpartisan commission of inquiry,"
better known as a "Truth and Reconciliation Committee," to investigate "how our
detention policies and practices, from Guantanamo to Abu Ghraib, have seriously
eroded fundamental American principles of the rule of law." Since Senator
Leahy's commission is intended above all to investigate and make public what was
done -- "in order to restore our moral leadership," as he said, "we must
acknowledge what was done in our name" -- he would offer grants of immunity to
public officials in exchange for their truthful testimony. He seeks not
prosecution and justice but knowledge and exposure: "We cannot turn the page
until we have read the page."

Many officials of human rights organizations, who have fought long and valiantly
to bring attention and law to bear on these issues, strongly reject any proposal
that includes widespread grants of immunity. They urge investigations and
prosecutions of Bush administration officials. The choices are complicated and
painful. From what we know, officials acted with the legal sanction of the US
government and under orders from the highest political authority, the elected
president of the United States. Political decisions, made by elected officials,
led to these crimes. But political opinion, within the government and
increasingly, as time passed, without, to some extent allowed those crimes to
persist. If there is a need for prosecution there is also a vital need for
education. Only a credible investigation into what was done and what information
was gained can begin to alter the political calculus around torture by replacing
the public's attachment to the ticking bomb with an understanding of what
torture is and what is gained, and lost, when the United States reverts to it.

President Obama, while declaring that "nobody's above the law, and if there are
clear instances of wrongdoing ... people should be prosecuted," has also
expressed his strong preference for "looking forward" rather than "looking
backwards." One can understand the sentiment but even some of the decisions his
administration has already made -- concerning state secrecy, for example -- show
the extent to which he and his Department of Justice will be haunted by what his
predecessor did. Consider the uncompromising words of Eric Holder, the attorney
general, who in reply to a direct question at his confirmation hearings had
declared, "waterboarding is torture." There is nothing ambiguous about this
statement -- nor about the equally blunt statements of several high Bush
administration officials, including the former vice-president and the director
of the CIA, confirming unequivocally that the administration had ordered and
directed that prisoners under its control be waterboarded. We are all living,
then, with a terrible contradiction, an enduring one, and it is not subtle, any
more than the accounts in the ICRC report are subtle. "It was," as Mr. Cheney
said of waterboarding, "a no-brainer for me." Now Abu Zubaydah and his fellow
detainees have stepped forward out of the darkness to link hands with the former
vice-president and testify to his truthfulness.

-- March 12, 2009


Notes

[1] See "Restoring Trust in the Justice System: The Senate Judiciary Committee's
Agenda in the 111th Congress," 2009 Marver Bernstein Lecture, Georgetown
University, February 9, 2009.

[2] See "President Discusses Creation of Military Commissions to Try Suspected
Terrorists," September 6, 2006, East Room, White House, available at cfr.org.

[3] See, for the authoritative account, Dana Priest, "CIA Holds Terror Suspects
in Secret Prisons," The Washington Post, November 2, 2005.

[4] See Jonathan Alter, "Time to Think About Torture: It's a New World, and
Survival May Well Require Old Techniques That Seemed Out of the Question,"
Newsweek, November 5, 2001. See also Raymond Bonner, Don Van Natta Jr., and Amy
Waldman, "Interrogations: Questioning Terror Suspects in a Dark and Surreal
World," The New York Times, March 9, 2003.

[5] "President Bush's News Conference," The New York Times, September 15, 2006.

[6] From "CIA -- Abu Zubaydah. Interview with John Kiriakou." This is the rough
and undated transcript of a video interview conducted by Brian Ross of ABC News,
apparently in December 2007, available at abcnews.go.com. Quotations from this
document have been edited very slightly for clarity. See also Richard Esposito
and Brian Ross, "Coming in from the Cold: CIA Spy Calls Waterboarding Necessary
But Torture," ABC News, December 10, 2007.

[7] See "Working Group Report on Detainee Interrogations in the Global War on
Terrorism: Assessment of Legal, Historical, Policy, and Operational
Considerations," April 4, 2003, in Mark Danner, Torture and Truth: America, Abu
Ghraib, and the War on Terror (New York Review Books, 2004), pp. 190-192. A
great many of these documents, collected in this book and elsewhere, were leaked
in the wake of the publication of the Abu Ghraib photographs, and have been
public since late spring or early summer of 2004.

[8] See David Johnston, "At a Secret Interrogation, Dispute Flared Over
Tactics," The New York Times, September 10, 2006.

[9] See Mark Hosenball, "How Good Is Abu Zubaydah's Information?," Newsweek Web
Exclusive, April 27, 2002.

[10] See Johnston, "At a Secret Interrogation, Dispute Flared Over Tactics."

[11] See KUBARK Counterintelligence Interrogation -- July 1963 and Human
Resource Exploitation Training Manual -- 1983, both archived at "Prisoner Abuse:
Patterns from the Past," National Security Archive Electronic Briefing Book No.
122. For the historical roots of the "alternative set of procedures" see Alfred
W. McCoy, A Question of Torture: CIA Interrogation, from the Cold War to the War
on Terror (Metropolitan, 2006); and Jane Mayer, The Dark Side: The Inside Story
of How the War on Terror Turned into a War on American Ideals (Doubleday, 2008),
especially pp. 167-174. See also my "The Logic of Torture," The New York Review,
June 24, 2004, and Torture and Truth.

[12] See Jan Crawford Greenburg, Howard L. Rosenberg, and Ariane de Vogue,
"Sources: Top Bush Advisors Approved 'Enhanced Interrogation,'" ABC News, April
9, 2008.

[13] The bracketed comment appears in the ICRC report.

[14] See Bob Woodward, "Detainee Tortured, Says US Official: Trial Overseer
Cites 'Abusive' Methods Against 9/11 Suspect," The Washington Post, January 14,
2009.

[15] See Ron Suskind, "The Unofficial Story of the al-Qaeda 14," Time, September
10, 2006. See also Suskind's The One Percent Doctrine: Deep Inside America's
Pursuit of Its Enemies Since 9/11 (Simon and Schuster, 2006), pp. 99-101, and
Mayer, The Dark Side, pp. 175-177.

[16] See "Statement on Military Commission Legislation: Remarks by Senator
Barack Obama," September 28, 2006.

[17] See my Torture and Truth, p. 33.

*


New York Times --

March 8, 2009
TERROR-WAR FALLOUT LINGERS OVER BUSH LAWYERS
by Charlie Savage and Scott Shane

http://www.nytimes.com/2009/03/09/washington/09lawyers.html

WASHINGTON -- When John C. Yoo, a former Justice Department lawyer, was selected
by President George W. Bush in May 2004 to join a government board charged with
releasing historical Nazi and Japanese war crimes records, trouble quickly
followed.

The Abu Ghraib torture scandal was exploding, and fellow panelists learned that
Mr. Yoo had written secret legal opinions saying presidents have sweeping
wartime power to circumvent the Geneva Conventions. They protested that it was
absurd to name Mr. Yoo, who they believed might have sanctioned war crimes, to a
war crimes commission.

White House officials canceled the appointment, though it had already been
announced in a news release, and kept the episode quiet. "We saved them from
incredible embarrassment," said Thomas H. Baer, one of the dissenting panelists.

But for Mr. Yoo, a Berkeley law professor, the swift exit from the war crimes
board was only the beginning of his troubles. For more than four years, the
Justice Department ethics office has been investigating his work and that of a
few of his colleagues. A convicted terrorist has filed a lawsuit blaming Mr. Yoo
for abuses he says he endured. Law students have led protests and the Berkeley
City Council even passed a resolution in December calling for Mr. Yoo's
prosecution for war crimes.

The Obama administration last week began releasing more secret memorandums
written by Mr. Yoo and others that made such wide-ranging claims about
presidential power that Senator Arlen Specter, Republican of Pennsylvania,
called them "shocking."

The notoriety that follows Mr. Yoo -- and to varying degrees half a dozen other
Bush administration lawyers -- raises difficult questions: What is a government
lawyer's responsibility if legal advice he gives turns out to be, in the view of
many authorities, grievously flawed? Can he be blamed for damaging, and arguably
illegal, acts carried out with his imprimatur? Should he suffer any punishment?

"I think the legal profession in the United States has been seriously hurt by
their conduct," said Stephen Gillers, a professor of legal ethics at New York
University. He called the disputed legal opinions "sloppy, one-sided and
incompetent" and added, "There has to be accountability."

What, if anything, should happen to these lawyers -- damage to their
professional reputations, punishment by state bar associations, perhaps even
prosecution at home or abroad -- is now the subject of a lively debate in the
legal world and beyond.

The calls to begin a criminal investigation of Bush legal team members have so
far been ignored by the new attorney general, Eric H. Holder Jr. But the demands
reflect a widely shared view that the Bush administration lawyers played an
outsize role in the disputed counterterrorism policies.

Mr. Yoo and other top lawyers met as a "war council" to consider how far Mr.
Bush could go. In addition to asserting that he could bypass the Geneva
Conventions -- war crimes treaties protecting detainees -- the lawyers said the
president's wartime powers trumped many other legal limits. Their secret
memorandums cleared the way for aggressive policies -- like waterboarding and
other harsh interrogation techniques -- all but ensuring that neither policy
makers nor operatives could face criminal prosecution for actions blessed as
legal.

But John C. Eastman, the dean of the Chapman University law school and a friend
of Mr. Yoo who invited him to teach there this semester, argued that it was
deeply unfair to single out the Bush lawyers for the advice they gave under
intense pressure after the 2001 terrorist attacks. "It's unfortunate, and quite
frankly it's dangerous," because it could make officials risk averse, Mr.
Eastman said, blaming partisan politics.

Mr. Yoo declined to comment. But in a March 7 opinion column in The Wall Street
Journal, he defended his recently disclosed work and warned that the Obama
administration risked harming national security if it punished lawyers like
himself.

"If the administration chooses to seriously pursue those officials who were
charged with preparing for the unthinkable, today's intelligence and military
officials will no doubt hesitate to fully prepare for those contingencies in the
future," Mr. Yoo wrote.

Mr. Yoo's harshest critics -- including lawyers for Jose Padilla, the convicted
Qaeda operative who is suing Mr. Yoo for $1 and a judicial declaration that he
authorized illegal detention and interrogation practices -- note that Nazi
lawyers and judges were tried for war crimes at Nuremberg. Others point to mob
lawyers charged in organized crime conspiracies.

But scholars say there is little precedent for punishing government lawyers who
blessed conduct that most mainstream legal scholars contend was, in fact,
illegal. The Nuremberg cases involved a different scenario: The lawyers were
carrying out Nazi-era laws against a backdrop of mass murder. And while
corporate lawyers may face malpractice lawsuits by clients for bad advice, in
practice it has been "incredibly rare" for lawyers to be punished, said Daniel
C. Richman, a Columbia University law professor.

For some of Mr. Bush's lawyers, the most likely consequence may be wariness from
potential employers. The former White House counsel and attorney general,
Alberto R. Gonzales, for example, has not found a job since resigning in 2007
amid accusations that he misled Congress about surveillance without warrants and
the firing of United States attorneys.

He recently told The Wall Street Journal that the controversy surrounding him
had made law firms "skittish" about hiring him, calling himself "one of the many
casualties of the war on terror." Mr. Gonzales's lawyer, George J. Terwilliger
III, said in a statement that "Judge Gonzales looks forward to the day when
reason prevails over partisan politics and he can get on with his professional
life."

David S. Addington, a top aide to Vice President Dick Cheney who was a forceful
voice in internal legal debates, is also said to still be looking for work. The
former Pentagon general counsel William Haynes II had been nominated by Mr. Bush
for an appeals court judgeship, but was blocked because of his role in detention
policies.

He then searched for a job for about a year, according to Pentagon officials,
before landing a position at Chevron in 2008.

Other key figures who left the administration before the details of their work
came to light -- a process that began with the disclosure of interrogation
memorandums after the 2004 Abu Ghraib torture scandal -- were luckier. Jay S.
Bybee, Mr. Yoo's former boss at the Justice Department's Office of Legal
Counsel, had been confirmed to a life-tenured appeals court seat in 2003. That
same year, Mr. Yoo had returned to his tenured professorship at Berkeley, and
Timothy E. Flanigan, the former deputy White House counsel, took a private-
sector legal job. (The other former Bush administration lawyers all declined to
comment or could not be reached.)

Even if they escape punishment at home, however, the lawyers could find
themselves pursued in European countries that have laws allowing them to
prosecute torture no matter where it occurred.

"I think people like Yoo will be taking their chances if they want to go to
Europe for a very long time," said Michael Ratner, president of the Center for
Constitutional Rights, which has asked a German prosecutor to indict several
Bush legal team members along with policy makers. The prosecutor declined, but
the case is on appeal.

Mr. Ratner and others are eagerly awaiting the findings of the ethics
investigation into the interrogation memorandums drafted by Mr. Yoo and Mr.
Bybee in 2002, as well as others written in 2005 by Steven G. Bradbury. Critical
findings could include referrals to state bar associations, which have the power
to reprimand or disbar their members. Any bar action against Mr. Yoo could in
turn reignite a faculty effort to get Berkeley to strip him of tenure so he
could be fired.

But Mr. Richman, of Columbia, said any punishment against Bush lawyers is
unlikely unless e-mail messages or early drafts turn up proving that they
blatantly altered their legal conclusions to fit a policy agenda. Mr. Richman
said that would be unlikely for Mr. Yoo, who had pushed an aggressive theory of
presidential power long before the administration recruited him.

"The selection of Yoo was putting in place someone where you sort of had an idea
what he would say," Mr. Richman said. "Most academics are in the center of most
things, but there are some outliers. And he was an outlier."

[ John Schwartz contributed reporting from San Francisco. ]

*


The New Yorker --

February 23, 2009

THE HARD CASES
Will Obama institute a new kind of preventive detention for terrorist suspects?

by Jane Mayer

http://www.newyorker.com/reporting/2009/02/23/090223fa_fact_mayer

The last "enemy combatant" being detained in America is incarcerated at the U.S.
Naval Consolidated Brig in Charleston, South Carolina -- a tan, low-slung
building situated amid acres of grassy swampland. The prisoner, known internally
as EC#2, is an alleged Al Qaeda sleeper agent named Ali Saleh Kahlah al-Marri.
He has been held in isolation in the brig for more than five years, although he
has never stood trial or been convicted of any crime. Under rules established by
the Bush Administration, suspected terrorists such as Marri were denied the
legal protections traditionally afforded by the Constitution. Unless the Obama
Administration overhauls the nation's terrorism policies, Marri -- who claims
that he is innocent -- will likely spend the rest of his life in prison.

On September 10, 2001, Marri, a citizen of Qatar, who is now forty-three, came
to America with his family. He had a student visa, and his ostensible purpose
was to study computer programming at a small university in Peoria, Illinois.
That December, he was arrested as a material witness in an investigation of the
September 11th attacks. However, when Marri was on the verge of standing trial,
in June, 2003, President George W. Bush ordered the military to seize him and
hold him indefinitely. The Bush Administration contended that America was in a
full-fledged war against terrorists, and that the President could therefore
invoke extraordinary executive powers to detain Marri until the end of
hostilities, on the basis of still secret evidence. That day, Marri was put on a
military jet to Charleston, and since then he has been living as the only
prisoner in an eighty-bed high-security wing of the brig, with no visits from
family, friends, or the media.

Jonathan Hafetz, a lawyer with the American Civil Liberties Union, who has taken
the lead role in Marri's legal defense, says that the Bush Administration's
decision to leave him in sustained isolation was akin to stranding him on a
desert island. "It's a Robinson Crusoe-like situation," he told me. In 2005,
Hafetz challenged the constitutionality of Marri's imprisonment. A lower court
affirmed the government's right to detain him indefinitely. After several
appeals, the case is scheduled to be heard by the Supreme Court in April. Hafetz
calls the Marri case a pivotal test of "the most far-reaching use of detention
powers" ever asserted by an American President.

The Court's calendar requires the Obama Administration to file a reply to the
challenge by March 23rd. Unless some kind of diversionary action is taken --
such as sending Marri home to Qatar, or working out a plea agreement -- the
Court's schedule will likely force the Obama Administration to offer quick
answers to a host of complicated questions about its approach to fighting
terrorism.

John Bellinger III, who served as the counsel to the State Department under
President Bush, says of officials in the Obama Administration, "They will have
to either put up or shut up. Do they maintain the Bush Administration position,
and keep holding Marri as an enemy combatant? They have to come up with a legal
theory."

Among the issues to be decided, Hafetz says, is "the question of who is a
soldier, and who is a civilian. Is the fight against terrorism war, or is it not
war? How far does the battlefield extend? In the past, they treated Peoria as a
battlefield. Can an American be arrested in his own home and jailed
indefinitely, on the say-so of the President?" Hafetz wants the Supreme Court to
rule that indefinite executive detention is illegal, and he hopes that Obama
will withdraw Bush's executive order labelling Marri an enemy combatant, and
issue a new one classifying him as a civilian. This shift would allow Marri
either to be charged with crimes or to be released.

The Obama Administration's strategy in the Marri case will almost certainly
establish legal principles that will have ramifications for future cases, as
well as for the two hundred and forty or so similarly designated "unlawful enemy
combatants" held in the military prison at Guantanamo Bay, Cuba. During the Bush
years, the designation encompassed not just members of Al Qaeda and the Taliban
but also anyone who associated with them, supported them, or supported
organizations associated with them, even if unwittingly. In 2004, a Bush
Administration lawyer told a judge that, in theory, an enemy combatant could
even be "a little old lady in Switzerland" whose charitable donations had been
channelled, without her awareness, to Al Qaeda front groups.

If the Marri case reaches the Supreme Court, it will test the limits of such
theories. The case is therefore being closely watched by civil libertarians on
both the left and the right. The Center for Constitutional Rights, a liberal
advocacy organization, and the Cato and Rutherford Institutes, which lean to the
right, are among the many legal groups that have signed eighteen amicus briefs
on Marri's behalf. Individual lawyers who have taken up his cause include
Nicholas Katzenbach, the Attorney General in the Johnson Administration, and
William Sessions, who was appointed director of the FBI by President Reagan. The
editorial page of the Times has written repeatedly about the case, demanding
that the Fourth Circuit Court of Appeals' affirmation of Marri's military
detention be reversed: "People accused of bad deeds should be tried in court --
not in sham proceedings. They should be put in jail -- not secret detention."

No matter how Obama responds to the case, his decision is likely to arouse
controversy. Hafetz says, "If President Obama is serious about restoring the
rule of law in America, they can't defend what's been done to Marri. They would
be completely buying into the Bush Administration's war on terror." This view is
widely held by Obama's political base. Yet the political risks of change are
obvious. In 2004, Jeffrey Rapp, an analyst at the Defense Intelligence Agency,
claimed in a sworn affidavit, without providing evidence, that Marri had met
with Osama bin Laden in Afghanistan, and "offered to be an al Qaeda martyr." The
government's theory is that Marri came to America in order to help carry out a
second wave of terrorist attacks. "Al-Marri must be detained to prevent him from
aiding al Qaeda in its efforts to attack the United States," Rapp said in his
statement, which is the sole public document offering reasons for holding him.

In early February, former Vice-President Dick Cheney increased the pressure on
Obama, by warning that a catastrophic nuclear or biological terrorist attack on
America would occur unless Obama kept the Bush policies in place. In an
unusually contentious interview for an erstwhile high official, Cheney told
Politico that the Obama Administration was "more concerned about reading the
rights to an Al Qaeda terrorist than they are with protecting the United
States." Two days after Cheney's remarks were published, the White House was
visited by families of victims killed in the September 11th attacks and in the
bombing of the USS Cole, in 2000. Some of those families have organized an
advocacy group, Military Families United, which claims sixty thousand members,
and which has circulated a petition demanding that Congress reject all efforts
by the Obama Administration to relocate any detained terrorist suspects to its
members' districts.

Amid such competing viewpoints, a compromise idea has also emerged, which the
Obama Administration is weighing. A number of national-security lawyers in both
parties favor the creation of some new form of preventive detention. They do not
believe that it is the President's prerogative to lock "enemy combatants" up
indefinitely, yet they fear that neither the criminal courts nor the military
system is suited for the handling of transnational terrorists, whom they do not
consider to be ordinary criminals or conventional soldiers. Instead, they
suggest that Obama should work with Congress to write new laws, possibly
creating a "national-security court," which could order certain suspects to be
held without a trial.

One proponent of this idea is Neal Katyal, whom Obama recently named to the
powerful post of Principal Deputy Solicitor General, in the Justice Department.
Katyal is best known for his victory as the lead counsel in Hamdan v. Rumsfeld
(2006). In his first appearance before the Supreme Court, he persuaded a
majority of the Justices to declare that the Guantanamo military-commission
system was illegal, arguing that Congress had not authorized the commissions.
Katyal's new job is to represent the government before the Supreme Court. Given
the sensitivity of this role, Katyal declined to comment for this story. But in
October he posted an article on a Web site affiliated with Georgetown Law, in
which he argued, "What is needed is a serious plan to prosecute everyone we can
in regular courts, and a separate system to deal with the very small handful of
cases in which patently dangerous people cannot be tried." This new system, he
wrote, would give the government the "ability to temporarily detain a dangerous
individual," including in situations where "a criminal trial has failed." There
are hundreds of legal variations that could be considered, he said. In 2007,
Katyal published a related essay, co-written with Jack L. Goldsmith, a
conservative Harvard Law School professor who served as the head of the Office
of Legal Counsel in the Bush Justice Department. The essay argued that
preventive detention, overseen by a congressionally authorized national-security
court, was necessary to insure the "sensible" treatment of classified evidence,
and to protect secret "sources and methods" of gathering intelligence. In his
Web post, Katyal wrote, "I support such a security court."

Such schemes have already stirred considerable controversy elsewhere in the
world, including in Great Britain, where since 2005 some three dozen terror
suspects have been detained for a time under house-arrest-like conditions, in
some cases being required to wear ankle monitors, obey curfews, and refrain from
using phones or the Internet. In America, such a compromise is sure to alarm
many human-rights advocates and civil libertarians, who regard indefinite
detention as antithetical to the American legal system's most basic tenets.
Alberto Mora, a Republican lawyer who, as general counsel of the Navy, broke
with the Bush Administration after concluding that some of its brutal
counterterrorism policies were potential war crimes, warns, "We simply can't
have indefinite detention. Due process and fundamental fairness make that
clear."

Marri himself is cautiously hopeful. Despite restrictions on his consumption of
television and print news, he followed the Presidential campaign from inside the
brig. According to Hafetz, "He's happy about Obama, but worried he won't be able
to fulfill all the promises and expectations." Through his lawyers, Marri,
speaking publicly for the first time, said, "I am not asking to be taken at my
word and to be released, although I very much want to go home to my family. All
I am asking for is to be treated like every other person in the United States
who is accused of a crime, including terrorism, and to be given a fair trial in
an American court."


As a candidate, Obama promised a sharp break with the Bush Administration's
counter terrorism policies. In a written statement for the Boston Globe, Obama,
who taught constitutional law in the nineteen-nineties, said, "I reject the Bush
Administration's claim that the President has plenary authority under the
Constitution to detain U.S. citizens without charges as unlawful enemy
combatants." (In fact, the Bush Administration went beyond this claim, arguing
that Congress had explicitly granted the President this authority, in a bill
passed after the attacks.) In the Globe, Obama went on, "The detention of
American citizens, without access to counsel, fair procedure, or pursuant to
judicial authorization, as enemy combatants is unconstitutional." In his
Inaugural Address, Obama further underscored his differences with Bush in this
area, saying, "As for our common defense, we reject as false the choice between
our safety and our ideals." A top legal adviser to Obama told me that the
President also believes that legal residents in America, like Marri, are
entitled to due process.

Former Bush Administration officials who were involved in its anti-terror
program suggest that Obama may find it harder than expected to translate
idealistic rhetoric into action. "Governing is different from campaigning," says
Bellinger, who predicts that Obama and his officials will soon discover that
"they can't just set the clocks back eight years, and try every terror suspect
captured abroad in the federal courts." Bellinger now says that the treatment of
Marri was a "failed experiment." John Ashcroft, who was Attorney General when
Marri was designated an enemy combatant, makes no such apologies. Interviewed
just before the Inauguration, he defended what he described as a "sound
decision" to "maximize the national interest," and predicted that, in the end,
President Obama's approach to handling terror suspects would closely mirror his
own: "How will he be different? The main difference is going to be that he
spells his name 'O-b-a-m-a,' not 'B-u-s-h.' "

So far, the Obama Administration has declined to state a position on the Marri
case. It's already becoming apparent, though, that Ashcroft was mistaken in his
broader point. Obama, in his first week in office, issued three executive
orders, undoing many of the most controversial elements of the Bush
Administration's detention and interrogation programs. Most notably, Obama
declared that the Administration hoped to close Guantanamo within a year. A
little noticed memorandum issued at the time of the orders was dedicated to
Marri. It called for a Cabinet-level inter-agency task force, led by Attorney
General Eric Holder, to review Marri's case, with an eye toward finding
alternative ways to deal with him.

The same officials will review the status of the enemy combatants held in
Guantanamo. The Obama Administration has indicated that it hopes to return the
majority of the detainees to other countries, or to try them in civilian and
military courts. The looming question, however, is whether there is a category
of terror suspect whose status precludes such options. It's unclear whether some
home countries can provide fair trials or secure prisons. More important, the
high standard of evidence required in U.S. courts -- guilt must be proved
"beyond a reasonable doubt" -- might result in dangerous individuals being set
free.

Qatar has made known its interest in having Marri come home. But the Obama
Administration has to decide whether he poses a recidivism risk -- an assessment
that has to be made, in part, on the basis of statements elicited through
torture. (Khalid Sheikh Mohammed, the self-described mastermind of the 9/11
plot, was waterboarded by the CIA, and reportedly said that Marri was a fellow-
terrorist.) As such, Marri may exemplify what Greg Craig, Obama's White House
counsel, calls "the toughest question" facing the Administration as it tries to
bring the Bush program within the rule of law: what to do with the so-called
"third category" of detainees -- suspects who may be difficult to convict under
the American standards of justice, but who may pose a palpable threat if
released.


Depending upon how many such "hard cases" exist, Craig says, the Administration
will decide whether new laws, including possibly those enabling some sort of
preventive detention, are necessary. Although the detainees from the Bush era
pose the most immediate problem, he said, it's possible that the new
Administration may also want to handle future prisoners outside the existing
criminal- and military-court system. "A good deal of policy research remains,"
he said. "The door was not left open by accident. Obama wants the freedom to
hear the recommendations of the most experienced and smartest people, on how to
protect the American people while still respecting the rules of the road on
liberty." He suggested that the Administration would prefer not to go in that
direction. "It's possible but hard to imagine Barack Obama as the first
President of the United States to introduce a preventive-detention law," Craig
said. "Our presumption is that there is no need to create a whole new system.
Our system is very capable." Then again, the idea is not being ruled out, which
may be surprising to some constituents, given Obama's past support for civil
liberties and Craig's own record -- in the early nineties, he served as the
chairman of the board of the International Human Rights Law Group, an advocacy
organization now known as Global Rights.

Obama's legal team is aware that every step it takes will be seen as an
indication of core convictions. Craig, who will coördinate the revamping of the
Bush Administration's legal policies on terrorism, said, "One way we've looked
at this is that we own the solution. We don't own the problem -- it was created
by the previous Administration. But we'll be held accountable for how we handle
this."

The Obama Administration has already inflamed some members of the human-rights
community. On February 9th, the Justice Department adopted the same position
that Bush had taken in a case filed by the American Civil Liberties Union. The
government attempted to squelch a lawsuit initiated by a group of terrorist
suspects -- one of whom had allegedly been tortured in Morocco after being
transferred there by the CIA -- on the ground that it would open up state
secrets. Scott Horton, a law professor at Columbia University, characterized the
new Justice Department's position as a betrayal of the "promises of transparency
and accountability" made by Obama during the campaign.

The first step in cases such as Marri's, Craig suggests, will be to evaluate the
"dangerousness" of each detainee, and to scrutinize all documents passed on by
the previous Administration. "We need the facts," he said. "And we need fresh
eyes." For years, John Ashcroft has justified the military detention of Marri as
a safety precaution. "Sometimes the criminal courts are not up to it," he told
me. But, as the new team reviews Marri's story, it will likely find ample
grounds to reassess the notion that the courts can't handle terror suspects, and
that such suspects can't be safely housed in the United States without incident.


In a recent interview, David Kelley, a former U.S. Attorney for the Southern
District of New York, who supervised the early stages of the Marri case,
revealed that he had warned his bosses in the Justice Department that they were
making a mistake by sidestepping the criminal courts. Kelley co-chaired the
Justice Department's nationwide investigation into the 9/11 attacks, and headed
the investigations into the 2000 attack on the USS Cole, in Yemen, and the 1998
bombings of the U.S. Embassies in Kenya and Tanzania; he also led the
prosecution of Ramzi Yousef, in the 1993 World Trade Center bombing. In 2003, he
successfully prosecuted John Walker Lindh, the American accused of aiding the
Taliban. In the interview, Kelley said he believed that the government had a
strong case against Marri: he had been charged with credit-card fraud, bank
fraud, identity theft, and lying to a federal agent. He thought that Marri could
be convicted in a matter of a few months, and sentenced to years in prison.
Kelley, who is now a partner at Cahill Gordon, in Manhattan, was disappointed
when, on the basis of a one-page executive order, Marri was suddenly sent to the
brig. "My view is, we haven't really exhausted the potential for using the
criminal-justice system," he said.

James Benjamin, a former federal prosecutor in the Southern District of New
York, is now a partner at the law firm Akin Gump. In 2008, he co-wrote a review
of the Marri case, characterizing the switch to military detention as
counterproductive. "Definitely, the criminal-justice system can handle someone
like Marri," he told me. "They caught him under the criminal-justice system.
And, based on what we know, they were poised to convict him." What happened to
Marri before he was moved "proves the system was up to it."

Marty Lederman, a former Georgetown Law professor, whom Obama has appointed to
be a deputy in the Justice Department's Office of Legal Counsel, argues that the
Bush Administration's claims to be acting out of necessity were "nonsense." In
an essay published before he joined the Administration, Lederman wrote, "Even if
everything the government alleges about al-Marri's ties to al Qaeda are true,"
he was not a danger "because he was already incapacitated -- imprisoned --
within the criminal-justice system, where his trial was pending."

Marri had aroused the suspicion of law-enforcement officers almost as soon as he
arrived in the Midwest with his wife, Maha, who spoke no English, and their five
young children. His timing was conspicuous -- he arrived in Chicago the day
before 9/11. The next day, the family took a hundred-and-fifty-mile taxi ride to
Peoria.

Marri enrolled in computer-science classes at Bradley University, where he and a
brother had obtained undergraduate degrees. Qatar, which has one of the highest
per-capita incomes in the world, pays college tuition for many of its citizens,
and several members of the Marri family have attended school in America.
According to the Washington Post, as an undergraduate at Bradley Marri wore a
ponytail and was known for his partying and his quick sense of humor. He
returned to Qatar in 1991, after graduation. Later that decade, a palace coup in
Qatar shook his family, eventually prompting some members to leave for Saudi
Arabia, where many of his brothers and his wife now live. Marri reportedly ended
up in Afghanistan. According to the sworn statement given by Jeffrey Rapp, the
DIA analyst, at some point between 1996 and 1998 Marri was trained in chemical
weaponry at an Al Qaeda camp there. (Marri, through his lawyer, denied these
allegations.)

Patrick Theros, who was the U.S. Ambassador to Qatar during this period, is
skeptical of the terrorism allegations. "I've never heard anyone say this Qatari
kid did anything," he told me. Theros described Qatar as both religiously
conservative and tolerant, and says that as far as he knows it is home to
virtually no violent radical Islamic movements.

In the summer of 2000, Marri returned to Illinois, where he allegedly registered
a carpet business in Macomb, and opened multiple bank accounts, under a false
name and Social Security number. When he went back in the fall of 2001,
according to the Washington Post, he had a briefcase filled with hundred-dollar
bills. Rapp's statement claims that Marri had obtained more than thirteen
thousand dollars in cash from Mustafa Ahmed al-Hawsawi, the financier in the
United Arab Emirates who is known to have bankrolled the September 11th
hijackers. Phone records apparently offered further evidence of a tie between
Marri and Hawsawi.

Law-enforcement authorities pieced together this picture bit by bit. In
September, according to the Post, local police stopped Marri while he was
driving, checked his license, and discovered an outstanding warrant for drunken
driving, dating back to his earlier student days, as well as the briefcase
filled with cash. The police notified the FBI Several weeks later, his lawyers
say, a cell-phone salesman, noting discrepancies in Marri's identification
documents, also called the bureau. In October and December, 2001, FBI agents
interviewed Marri; they say that he offered to let them search his laptop
computer, his minivan, and his small rental apartment. Later, Marri's lawyers
argued that the agents had failed to obtain a warrant, and that the information
from the search could therefore not be admitted into evidence. According to
Rapp's statement, Marri's computer was filled with information on deadly
poisons, including a step-by-step guide to making hydrogen cyanide -- a toxic
substance that can be used in poison-gas attacks. Marri, in claiming his
innocence, has had no chance to see the evidence against him. Asked recently why
he was researching such chemicals, Marri, through his lawyers, gave his first
public answer. He was "doing research for a family member in the petrochemical
industry to be used for industrial purposes. The research involved visiting Web
sites that contained hundreds of nonpoisonous chemicals (not just cyanide). And
even cyanide has numerous industrial uses."

The laptop also reportedly contained lectures by bin Laden, and unsent e-mails
to an address that Rapp said was connected to Khalid Sheikh Mohammed. Some of
Marri's e-mails were encoded. Upon discovering this information in his laptop,
the FBI arrested Marri as a material witness to its investigation of the
attacks. Soon after, he was charged with credit-card fraud and with failing to
tell the FBI about his 2000 visit to America and his phone calls to Hawsawi.

On the morning of June 23, 2003, only days before Marri's defense team was to
make its arguments about suppressing the laptop and other evidence, one of his
lawyers received a phone call informing him that a U.S. Attorney would be making
an unexpected appearance at the courthouse that day. President Bush, the lawyers
soon learned, had signed an executive order directing the military to seize
Marri. "We should have seen it for what it was -- the foreshadowing of an
Administration that was going to forsake the Constitution in the war on terror,"
Lawrence Lustberg, one of the earliest defense lawyers on what has come to be
Marri's team, said. "From then on, we didn't see Marri or hear from him again
until late 2004. He just went into the abyss."

Before agreeing to transfer Marri to the brig, however, the presiding judge in
the case ruled that the White House would be barred from charging Marri again
with the same crimes. In legal jargon, the original charges were "dismissed with
prejudice," to protect Marri's right not to be placed in "double jeopardy." As a
result, if the Obama Administration decides to charge him in the criminal system
now, it has to bring a different set of charges, unless Marri's lawyers offer a
deal. Benjamin, the former prosecutor, insists that "there is a whole bag of
tools for dealing with truly bad guys -- there are many other statutes that the
government could explore, including material support of terrorism, conspiracy
charges, and mail- and wire-fraud charges." But, he suggests, by taking Marri
outside the regular criminal system "there's no doubt they made all kinds of
problems for themselves."

Andrew McCarthy, a former federal terrorism prosecutor who writes for National
Review, defends Marri's transfer to the brig. "Sure, the criminal-justice
system, by permitting Marri's pretrial detention, neutralized him, at least for
a time," he says. "But there's always the chance the court will release a
defendant on bail." Moreover, he argues that open criminal trials run many
risks, including the accidental, or oblique, disclosure of classified
information. It's also unclear how to handle witnesses who may themselves be
terrorists: they may demand immunity before they will talk. Or it may be that
their testimony was obtained by unsavory means, which could scuttle a
conviction.

In the Marri case, however, it does not appear that a fear of losing led Bush to
transfer him to the Navy brig. Kelley, for example, thought that the case the
government had was "solid." Instead, it appears that the real motive was
frustration on the part of the Justice Department at being unable to make Marri
confess. Kelley was told to push him hard, which he did, but Marri kept
professing his innocence. As Ashcroft wrote in his 2006 book about fighting
terrorism, "Never Again," "Al-Marri rejected numerous offers to improve his lot
by cooperating with the FBI investigators and providing information. He insisted
on becoming a 'hard case.' " Mark Berman, an early member of Marri's defense
team, asserts that the Bush Administration "really just wanted to interrogate
him" in a rough manner. "No doubt about it."

The right to remain silent is a fundamental aspect of the American justice
system. Justice John Paul Stevens, dissenting in the 2004 case Rumsfeld v.
Padilla, wrote, "Executive detention of subversive citizens, like detention of
enemy soldiers to keep them off the battlefield, may sometimes be justified to
prevent persons from launching or becoming missiles of destruction. It may not,
however, be justified by the naked interest in using unlawful procedures to
extract information. Incommunicado detention for months on end is such a
procedure.... For if this Nation is to remain true to the ideals symbolized by
its flag, it must not wield the tools of tyrants even to resist an assault by
the forces of tyranny."


The summer of 2003, when Marri entered the brig, was the height of the Bush
Administration's program of authorized abusive interrogations. The CIA had just
taken Khalid Sheikh Mohammed into custody, and was using extreme measures to
make him divulge information (much of which he later recanted). Marri was among
those whom Mohammed apparently implicated during this period. By then, Bush
appointees in the Justice Department had produced numerous memos advising the
CIA and the Pentagon that there were virtually no legal impediments to the use
of physical and psychological force to break "unlawful enemy combatants."
Suspects considered especially "high value" were subjected to extreme sensory
deprivation and other harsh tactics, which were modelled on Soviet and Chinese
torture programs that had been studied and copied by the CIA.

Inside the Charleston brig, documents show, officials were ordered to follow the
same rules as those at Guantanamo. Lustberg, however, says, "I've been to
Guantanamo. Marri was far more isolated. He had no contact with any other
detainees. Most days, he had no human contact at all."

For the first six months, Marri was kept in an eight-foot-by-ten-foot cell with
one blacked-out window, no social interaction, and nothing to do or to read. An
internal report, declassified in 2005, showed that during this period the
Department of Defense ordered the removal of the mattress, pillow, and Koran of
a detainee in the brig. Marri was also deprived of visits from the Red Cross, in
violation of international laws. He was denied hot food, and consistently felt
cold: he was given no socks, and his bed had only a stiff "anti-suicide" blanket
-- one that cannot be made into a noose. Andrew Savage, the local counsel for
Marri in Charleston, says, "It was a psychological effort to devalue him. He was
going crazy. He thought the smells from the nearby paper mill were poisoning
him." At other points, Marri started feeling "tingles" all over, and began
hallucinating that microphones had been installed in his cell. "He was getting
delusional," Savage said.

When unidentified interrogators finally showed up at the brig, Marri told them
that he needed three things: a blanket, shoes, and socks. If he was given those,
he said, he would talk to them in another six months. "He said, 'You deprive me?
I'll deprive you,' " Savage said. Instead, "the interrogators got rougher."
Marri was chained in a fetal position on the floor. When he started to chant
prayers rather than listen to the interrogators' questions, Savage said, they
tried to silence him by wrapping duct tape around his mouth. When he kept
humming, they tried to gag him. But as they started to tape a sock in his mouth
he began to choke, causing the agents to panic and stop. The episode was
documented by closed-circuit surveillance cameras, Pentagon officials have
confirmed.

A spokesperson for Lieutenant General Michael Maples, the director of the
Defense Intelligence Agency, told the Times that Maples considered Marri's
treatment "acceptable." But the Pentagon has refused to share the tape of the
gagging, which evidently still exists, with Marri's defense team. Though the
Defense Department has admitted to erasing a number of other tapes of Marri, the
surviving tapes could prove damaging should the case go to trial.

Despite the so-called "enhanced" interrogation tactics used on Marri, he
continued to insist that he had never met Osama bin Laden, was not a terrorist,
and wished the U.S. no harm. If Marri was cast into military detention in order
to make him confess, it didn't work. "I'm not surprised," Kelley said. "I don't
know of many instances where other agencies have got more out of defendants than
the FBI can."

In October, 2004, after a sixteen-month blackout, Marri's defense lawyers were
finally allowed to meet with him again. The Supreme Court had just ruled, in
Rasul v. Bush and in Hamdi v. Rumsfeld, that "unlawful enemy combatants" were
entitled to legal representation and some form of due process. As three of his
defense lawyers watched from one side of a glass partition, Marri was brought in
wearing a belly chain and shackles, which were bolted to the floor. Guards
wearing black gloves and covered I.D. tags stood by.

"It was unbelievably emotional," Lustberg recalls. "We had fought so hard for
the right to see him. He was obviously suffering the effects of long-term
isolation. He seemed paranoid, scattered, distracted, and disturbed. He was
showing signs of mental illness." Berman recalls, "He was much thinner.
Mentally, he'd been through a lot. He was a little off-kilter."

As the debate over indefinite detention intensifies, Marri's example may prove
cautionary to those who think that it can be designed in a humane way. Savage,
the Charleston lawyer, now speaks to Marri by phone every few days, and visits
him in person every other week. He believes that nothing has been tougher on his
client than the uncertainty of not knowing if he would ever be released. "He
would have preferred beatings," Savage said. "He'd say, 'Andy, it's worse than
beating.' He wanted to be sent to Egypt to be renditioned. He'd say, 'Torture me
-- but end it!' "

By the spring of 2005, Savage feared that Marri was, as he put it, "slipping
away." Previously undisclosed correspondence between Marri and his attorneys
shows that he was thinking about getting a divorce; as he later explained to
Savage, he thought that his wife should marry his brother rather than be
abandoned in his absence. "I feel something will happen to me," Marri wrote in
February, 2005. "I want to make sure everything is documented." Two months
later, he wrote, "My body is tired & I don't know how long I can take it
anymore." In the spring of 2007, Marri gave Savage power of attorney, as if
preparing to die.

Given the reputation that military prisons have developed after the abuse
scandals at Guantanamo and Abu Ghraib, the lawyers for Marri were surprised to
discover that they had allies in the Navy brig who shared their concerns over
Marri's treatment. Unlike the staff at Abu Ghraib, the brig staff had been
trained for the job. Their mission, as they saw it, was to run a safe,
professional, and humane prison, regardless of who was held there. It was the
political appointees in Washington, at the Pentagon and the Department of
Justice, who wanted Marri to be kept in prolonged isolation. In 2005, Savage
discovered that the head of security at the brig, Air Force Major Chris Ferry,
"would stay all night with Marri. He'd go down to the brig and sit with him, and
tell him to hold on. Chris was there at three in the morning, on the darkest
nights." Geoff Morrell, a Pentagon spokesman, would not allow Ferry to be
interviewed for this story, saying, "Given that President Obama has ordered a
review of the al-Marri case, we feel it would be best to complete that work
before publicly discussing any further the specific aspects of his detention or
interrogation." Morrell added, "The Department of Defense treats all detainees
humanely, and this is particularly true in the case of al-Marri, for whom we
have taken extraordinary measures to insure his physical and mental well-being."

In 2005, Marri's lawyers filed suit against the Department of Defense, alleging
that conditions at the brig were causing a "mental health emergency" for Marri.
Savage said, "Later, we found the biggest lobbyists for improved conditions were
. . . the staff of the brig. The commanders were terrific. They kept rotating
through. My sense is that they saw things becoming too pressured
psychologically. They're good G.I. Joes -- they salute and follow orders. But
they're human." Documents released in response to a Freedom of Information
request by the Allard K. Lowenstein International Human Rights Clinic, at Yale
Law School, show that unnamed officers in the brig worried that the enemy
combatants being held there at the time were close to losing their sanity. "I
fear the rubber band is near the breaking point," one internal e-mail said.
Other e-mails show that unnamed brig staff officers fought to get the detainees
almost anything to occupy their minds, from a deck of cards to a soccer ball.
Their concern wasn't entirely altruistic. In his despair, Marri had increasingly
become "non-compliant," covering the closed-circuit cameras in his cell with
spitballs, refusing to eat, and throwing cups of his urine at guards.

After Savage filed suit, Marri's conditions started to improve, and so did his
behavior. Marri was gradually given reading material and exercise equipment. A
year after his father died, in 2007, an imam was sent to the brig to tell him.
More recently, he was granted the right to make two phone calls a year to his
family. (Last month, however, he was denied a visit from his eldest son.) Savage
is now allowed to bring him Muslim religious texts, which he spends most of his
time poring over, and kosher food from a deli in Charleston, whose method of
food preparation resembles that prescribed by halal.

Marri's conditions have so improved that his lawyers jokingly refer to him these
days as "the Emir of the S.H.U." -- the high-security wing of the brig is known
as the Special Housing Unit. He remains the sole prisoner in the wing, but he
now has the regular use of three cells, which he refers to as his "executive
suite." One cell contains a memory-foam mattress. Another houses a personal
library containing hundreds of volumes. The third contains alcohol-free cleaning
supplies, in compliance with his Muslim religious needs. When visitors come, he
sees them in an upper-tier room that he calls his "summer chalet." He also has
exclusive access to a thousand-square-foot dayroom equipped with a treadmill and
an elliptical machine. Officially barred from watching the evening news, Marri
has become a devotee of Stephen Colbert and Jon Stewart -- whom he calls "that
Jewish guy."

Marri is still not always a model prisoner. At one point, he became angry at
Stephanie Wright, the brig's commander at the time, for being slow in getting
him medicine that he had requested. He picked up a guard's two-way radio, which
had been left unattended, and screamed into it, "Stephanie! This is me -- Ali --
EC#2! Move your ass!" His voice was heard over all the radios in the brig.
Guards came running toward him. "I think he acted out for his own
entertainment," Savage said.

Since prison censors cut many of the hard-news stories out of the papers he
received, Marri began sending brig authorities frequent notes about local ads.
As Savage recalls it, one note said, "It's a two-for-one sale on upholstered
chairs! I'll take the purple -- you can have the lime green."


Soon after Obama issued the executive order to close Guantanamo, Republican
Senator Pat Roberts, of Kansas, called "unacceptable" any possibility that
detainees might be moved to Fort Leavenworth, the Department of Defense's only
maximum-security prison, which is in Roberts's home state. Senator Chris Bond,
of Missouri, the ranking Republican on the Senate Intelligence Committee, warned
that he could not "think of any city or town across this country that will be
thrilled to have Khalid Sheikh Mohammad or Abu Zubaydah living down the street."

But in Charleston, where the only enemy combatant in America really does live
down the street, the picture is more reassuring. In December, Marri, wearing
goggles, earmuffs, a belly chain, and shackles, was led out of his cell block.
No one told him where he was going, but the guards said that he had a visitor.
The destination, it turned out, was the visitors' center, where the commander of
the brig, John Pucciarelli, who was transferring out of the facility the next
day, had two things to tell him. According to Savage, Pucciarelli said that he
was sorry that he had been unable to do more for Marri, but he had treated him
as well as he could. He also said that there was a gift waiting for Marri, back
in the dayroom. When Marri returned, he found a thirty-two-inch-screen
television.

Andrew Savage was delighted. Although he had been skeptical about Marri, he has
become convinced that he poses no danger. "I don't fear him, not personally and
not for the United States," Savage said. "Is he putting me on? Scamming me?
Putting it over on me? I really don't think so. I'm not naïve. I've defended
multi-murderers, child murderers, child molesters, and all sorts of violent
criminals. But I really don't think Ali's a terrorist."

Michael McGovern, a former Assistant U.S. Attorney for the Southern District of
New York, who indicted Marri, scoffs at Savage's notion that he is harmless. "I
find that statement pretty remarkable, given that the evidence showed that he
was communicating directly with the masterminds of the 9/11 attacks."

Before the Bush Administration's experiments with executive detention, the way
to settle such disputes was in the courtroom. Depending on how Obama decides to
move ahead, that situation may prevail again. If so, he will have history and
tradition on his side. As Hafetz puts it, "In the more than two hundred and
thirty years since this country's founding, we have not found a better way to
find the truth than through a criminal trial."

*


Newsweek --

February 14, 2009
A TORTURE REPORT COULD SPELL BIG TROUBLE FOR BUSH LAWYERS
by Michael Isikoff

http://www.newsweek.com/id/184801

An internal Justice Department report on the conduct of senior lawyers who
approved waterboarding and other harsh interrogation tactics is causing anxiety
among former Bush administration officials. H. Marshall Jarrett, chief of the
department's ethics watchdog unit, the Office of Professional Responsibility
(OPR), confirmed last year he was investigating whether the legal advice in
crucial interrogation memos "was consistent with the professional standards that
apply to Department of Justice attorneys." According to two knowledgeable
sources who asked not to be identified discussing sensitive matters, a draft of
the report was submitted in the final weeks of the Bush administration. It
sharply criticized the legal work of two former top officials -- Jay Bybee and
John Yoo -- as well as that of Steven Bradbury, who was chief of the Office of
Legal Counsel (OLC) at the time the report was submitted, the sources said.
(Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

But then-Attorney General Michael Mukasey and his deputy, Mark Filip, strongly
objected to the draft, according to the sources. Filip wanted the report to
include responses from all three principals, said one of the sources, a former
top Bush administration lawyer. (Mukasey could not be reached; his former chief
of staff did not respond to requests for comment. Filip also did not return a
phone message.) OPR is now seeking to include the responses before a final
version is presented to Attorney General Eric Holder Jr. "The matter is under
review," said Justice spokesman Matthew Miller.

If Holder accepts the OPR findings, the report could be forwarded to state bar
associations for possible disciplinary action. But some former Bush officials
are furious about the OPR's initial findings and question the premise of the
probe. "OPR is not competent to judge [the opinions by Justice attorneys].
They're not constitutional scholars," said the former Bush lawyer. Mukasey, in
speeches before he left, decried the second-guessing of Justice lawyers who,
acting under "almost unimaginable pressure" after 9/11, offered "their best
judgment of what the law required."

But the OPR probe began after Jack Goldsmith, a Bush appointee who took over OLC
in 2003, protested the legal arguments made in the memos. Goldsmith resigned the
following year after withdrawing the memos, and later wrote that he was
"astonished" by the "deeply flawed" and "sloppily reasoned" legal analysis in
the memos by Yoo and Bybee, including their assertion (challenged by many
scholars) that the president could unilaterally disregard a law passed by
Congress banning torture.

OPR investigators focused on whether the memo's authors deliberately slanted
their legal advice to provide the White House with the conclusions it wanted,
according to three former Bush lawyers who asked not to be identified discussing
an ongoing probe. One of the lawyers said he was stunned to discover how much
material the investigators had gathered, including internal e-mails and multiple
drafts that allowed OPR to reconstruct how the memos were crafted. In a
departure from the norm, Jarrett also told members of the Senate Judiciary
Committee last year he would inform them of his findings and would "consider"
releasing a public version. If he does, it could be the most revealing public
glimpse yet at how some of the major decisions of Bush-era counterterrorism
policy were made.

*


Washington Post --

February 9, 2009

A MILITARY TACTICIAN'S POLITICAL STRATEGY
In Defending the Troop Increase, Commander Paved Way for a 'Long War'

by Thomas E. Ricks

http://www.washingtonpost.com/wp-dyn/content/
article/2009/02/08/AR2009020802321.html

As Gen. David H. Petraeus flew into Baghdad in February 2007, preparing to take
command of U.S. forces in Iraq, Col. Peter R. Mansoor, his executive officer,
knelt alongside his seat. "You know, sir," he said, "the hardest thing for you,
if it comes to it, will be to tell the American people and the president that
this isn't working."

The general said nothing in response. "But he heard it," Mansoor remembers. And
he nodded.

Petraeus arrived for his third tour in Iraq to execute the "surge" strategy
developed by Lt. Gen. Raymond T. Odierno and outlined by President George W.
Bush a few weeks earlier: 30,000 additional troops, new counterinsurgency
tactics, and a mission to protect the population and bring security to a country
verging on civil war, with the hope that political reconciliation would follow.

But however daunting his military mission, Petraeus faced no less arduous a
political challenge: an impatient American public weary of Iraq, a Democratic
Congress bent on ending the war, and a military chain of command eager to draw
down forces and suspicious of the Princeton-educated commander who had the ear
of the president.

It would be his success on Capitol Hill and in the Pentagon as well as in the
court of public opinion that would determine the fate of the surge as much as
anything that happened in Baghdad. Petraeus proved to be a master on every
front.

Throughout his time in Iraq, Petraeus bypassed the chain of command and answered
directly to Bush, with whom he held weekly videoconferences from Baghdad. He
waged -- and won -- the political fights at home by discreetly but unmistakably
downgrading U.S. goals for Iraq, by facing down congressional Democrats, and by
winning more time for the new strategy to take hold.

In effect, Petraeus helped lay the groundwork for a much more prolonged
engagement in Iraq. The surge itself would last 18 months, with the last of the
five additional brigades leaving last summer. But what neither he nor Bush had
articulated -- and what lawmakers, the public and even some high up the military
chain of command did not recognize -- was that the new strategy was in fact a
road map for what military planners called "the long war."

The strategy envisioned a series of stages: First would come increased security.
Then, political progress, and with it the creation of a reliable Iraqi army and
police force. And all that, even if everything went as planned, could take many,
many years.

For Petraeus and Odierno, his second in command, one key to buying time in 2007
was to scale back the Bush administration's ambitions of turning Iraq into a
beacon of democracy for the Middle East.

In the course of several weeks that year, "we redefined success in a much more
modest way as 'sustainable stability,' " explained Emma Sky, a top adviser to
Odierno.

"We're not after the holy grail in Iraq; we're not after Jeffersonian
democracy," Petraeus later told the House Foreign Affairs Committee. "We're
after conditions that would allow our soldiers to disengage."

Another necessity was showing some successes. "The Washington clock is moving
more rapidly than the Baghdad clock," he said in a television interview a few
weeks after taking over as commander in Iraq. "So we're obviously trying to
speed up the Baghdad clock a bit and to produce some progress on the ground that
can, perhaps . . . put a little more time on the Washington clock."

Many of Petraeus's critics in Congress and the military didn't seem to recognize
what he needed that time for: not to bring the war to a close, but simply to
show enough genuine progress that the American people would be willing to stick
with it even longer.

Against these critics, Petraeus proved to be more than an effective foe.



* 'WE HAVE TO RE-LOOK THIS' Two top officers clash over the direction of the
war, but one has the president's ear. *

When Defense Secretary Robert M. Gates called Petraeus in early 2007 to offer
him command of coalition forces in Iraq, he also posed another question: What
did Petraeus think of Adm. William J. "Fox" Fallon as head of Central Command,
overseeing U.S. military operations throughout the Middle East and Afghanistan?

Petraeus hesitated. In his heart, he would have preferred retired Gen. Jack
Keane, his longtime mentor and an influential proponent of the new strategy for
Iraq. But he didn't say so, instead telling Gates that he didn't know Fallon but
that he had heard Keane speak highly of him.

It was an exchange Petraeus would remember ruefully. Over the months that
followed, Fallon and Petraeus clashed over resources, strategy and how quickly
to reduce the number of troops in Iraq.

Although new to the Middle East and inexperienced in ground warfare, Fallon was
one of the most senior officers in the U.S. military and one of the few Vietnam
War veterans still on active duty. Petraeus, by contrast, was one of the first
members of the military's post-Vietnam generation, becoming a platoon leader in
May 1975, days after the last Marine helicopter left Saigon.

As Centcom commander, Fallon was technically Petraeus's new boss. In practice,
however, Petraeus bypassed the chain of command and answered directly to Bush,
enjoying what was probably the most direct relationship between a frontline
general and his commander in chief since the Civil War.

But Fallon prided himself on being a strategic thinker, and he wouldn't step
aside simply because Petraeus dealt directly with Bush. Just weeks after taking
over Centcom, Fallon called into his office Maj. Gen. Michael Barbero, who was
preparing to become Petraeus's strategic adviser in Iraq. For half an hour, the
admiral held forth on what was wrong with the war. The theme of the lecture,
Barbero recalled, was "I think we have too many troops there; we have to re-look
this."

Fallon soon began holding up troop requests for Iraq that until then had been
considered routine, such as for a company of engineers or specialists in
traumatic brain injuries. "Fallon's default position was 'no.' You had to prove
why he was wrong," recalled Maj. Gen. David Fastabend, Barbero's predecessor
working for Petraeus. To smooth the way, senior Centcom staffers began to send
back-channel notes to Baghdad, advising Petraeus's subordinates on what not to
request.

In June, Fallon quietly dispatched an emissary, Rear Adm. James "Sandy"
Winnefeld Jr., to Iraq to review Petraeus's strategy. The move antagonized
commanders in Baghdad, who regarded Winnefeld as more of a spy or thought he was
there merely to validate Fallon's preferences. "He came here with a conclusion
and was looking for evidence to fit above that final paragraph of recommendation
in his report," said Col. Bill Rapp, head of the Commander's Initiatives Group,
Petraeus's internal think tank.

Winnefeld's eventual proposal indeed echoed Fallon's inclination to withdraw the
U.S. military from the fighting and move it completely into training of Iraqi
forces. Meanwhile, U.S. combat forces would be cut in half, drawing down to 10
brigades during 2007 -- returning to pre-surge levels almost as soon as the five
brigades had all arrived, then shedding another five brigades.

To officers in Baghdad, it amounted to the abandonment of the very premise of
the surge and a return to the policies that, in their view, had brought the
United States to the edge of defeat.

In midsummer, Barbero recalled, Fallon sent word to Petraeus: Get ready for a
change of mission. Security was going to be downgraded as a goal, and a drawdown
of forces would begin in the fall.

Petraeus sent word back to Fallon: He disagreed and wanted to continue the
mission.

In a series of interviews, Petraeus became testy and tight-lipped about his
relationship with the Centcom commander. "Look, this isn't a soap opera," he
snapped in January 2008. Fallon declined to be interviewed for this article, but
in an earlier interview, in December 2007, he conceded that he might have
occasionally stepped on subordinates' toes. "If you're trying to lead," he
explained, "you're never going to have everyone wanting to do the same thing."

By early August, field commanders were starting to report better cooperation
from Iraqi citizens, and U.S. combat deaths were declining. After the number
peaked at 126 in May, 93 U.S. troops were killed in action in June, when the
surge forces had all arrived, then 66 in July and 55 in August. Petraeus began
to conclude that the surge was working.

That same month, as Petraeus and Rapp were flying from the U.S. base at Taji
back to Baghdad, Rapp offered his thoughts on the next step in the war. "The
violent way is the short way, and the peaceful way is the long way," he said.
"Sir, if we want this competition in Iraq for resources to be resolved
peacefully, then we have to prepare people for a long, drawn-out process."

"You know, that's really good," the general replied, and he asked Rapp to
produce a memo that would be the core of the testimony Petraeus would give in
his eagerly awaited appearance before Congress in September. It was an argument
that would put him in direct conflict with Fallon, because it posited that
looking for a quick exit was likely to lead to a replay of the violence of 2006.

Petraeus planned to say, recalled Rapp, that "we have the right strategy, the
surge is showing initial results, and we need to stay the course. And if you're
looking for a drawdown, it isn't going to happen." To try to talk Petraeus out
of those recommendations, Fallon flew to Baghdad.

A few days later, Bush seemed to settle the debate: He approved Petraeus's
mission statement, which called for maintaining security until the Iraqis could
perform that role, and keeping the troops to do it.

Fallon never seemed to grasp that even though Petraeus was technically his
subordinate, the general held all the cards. As long as Petraeus, Odierno and
U.S. Ambassador Ryan C. Crocker held a united position, they outweighed not just
Fallon but the Joint Chiefs of Staff as well.


* 'OKAY, WHAT'S YOUR ANSWER?' The general and the ambassador head to a showdown
with Congress. *

Petraeus and Crocker liked to go running together, and during their runs in the
summer of 2007 they spent considerable time talking about how they would handle
their joint appearance before Congress in September. It was Petraeus's
calculation that the debate in the United States over the war was stalemated,
especially over the consequences of a troop pullout from Iraq.

For months, congressional Democrats had expected the hearings to be a decisive
moment in the war. Rep. James P. Moran Jr. (D-Va.) had said in May, "If we don't
see a light at the end of the tunnel, September is going to be a very bleak
month for this administration."

Even some Republican allies of Bush agreed that the Iraq strategy was doomed.
But Col. Steve Boylan, Petraeus's communications adviser, believed that
congressional Democrats, not the general and the president, were the ones in a
bind.

"My feeling was that Congress wouldn't be able to put together enough votes to
override a presidential veto, because then they'd own it," he said, putting his
finger on the Democrats' basic dilemma: how to end the war without being blamed
for how it ended.

Petraeus and Crocker were determined to deliver a sober assessment of the
situation in Iraq that would not open them up to the charges of blind optimism
that had undermined the credibility of past officials. At the Pentagon, Boylan
set up a "murder board" to help Petraeus rehearse the weekend before his
testimony. Boylan's most pointed question was "Sir, explain to me why we have to
lose one more American life in Iraq."

Petraeus responded, "Okay, what's your answer?"

Boylan didn't have one -- but he wanted Petraeus to think about it.

On Sept. 10, the day the hearings began, MoveOn.org, an antiwar group
influential in the Democratic Party, ran its now-famous full-page advertisement
in the New York Times mocking Petraeus as "General Betray Us." Petraeus, the ad
charged, was "at war with the facts." And the facts, as MoveOn saw them, showed
that "the surge strategy has failed." In addition, it said, "General Petraeus
will not admit what everyone knows: Iraq is mired in an unwinnable religious
civil war."

That morning, Rapp rode with Petraeus in a car from Fort Belvoir, near George
Washington's home at Mount Vernon, to the Capitol. "Petraeus did a good job of
not showing it, but I know it stung," he said. "He was just a little quieter
than usual."

Crocker, the lifelong diplomat, took an unemotional approach. "I couldn't
believe it," he said. As he read the ad again, his disbelief gave way to a grim
smile. "They've screwed themselves," he thought. He knew what Petraeus planned
to say, and that it would amount to a "word-by-word rebuttal of that
allegation."

Sen. Joseph R. Biden Jr. (D-Del.), then chairman of the Foreign Relations
Committee, began his panel's session. The president had said that the purpose of
the surge was to buy time for a political breakthrough, he noted, and that
hadn't happened. "It's time to turn the corner, in my view, gentlemen," he said.
"We should stop the surge and start bringing our troops home."

Petraeus was mindful that one of the senators facing him that day -- Biden,
Hillary Rodham Clinton (D-N.Y.), John McCain (R-Ariz) or Barack Obama (D-Ill.)
-- was likely to become his commander in chief in just over a year.

"I wrote this myself and did not clear it with anyone in the Pentagon, the White
House or Congress," he began. The military aspects of the surge were going
fairly well, he asserted. If those trends continued, he thought that by mid-2008
he could reduce his combat forces to the pre-surge level. He made no promises
whatsoever, keeping a personal vow.

Two exchanges that day would linger in Petraeus's mind. The first came with
Obama, who cast doubt on the strategy and posed several questions. "How do we
clean up the mess and make the best out of a situation in where there are no
good options, there are bad options and worse options?" he asked.

"How long will this take? And at what point do we say enough?" Obama continued.
"You said . . . the Iraqi people understand that the patience of the American
people is not limitless. But that appears to be exactly what you're asking for
in this testimony."

Obama had also identified the Democrats' dilemma -- but he didn't offer a way
out of it.

The comment that would irk Petraeus most that day came from Clinton. "You have
been made the de facto spokesman for what many of us believe to be a failed
policy," she chided. ". . . I think that the reports that you provide us really
require the willing suspension of disbelief."

Petraeus later admitted that he had underestimated the depth of antiwar feeling
in the United States, calling it "industrial-strength."

But both he and Crocker sensed that they had prevailed, that something
fundamental had shifted in the politics of the war at home. "We kind of saw the
air go out of the whole thing," Crocker said.


* 'HEY, WE WON!' After congressional hearings, the tenor of the debate over Iraq
changes. *

To reinforce the impact of the hearings, the president decided to give a
nationally televised address the night of Sept. 13. Late that day, the White
House sent a draft of the speech to Rapp. Scanning it, he saw that "the mission
wording had been changed to what Fallon wanted," Rapp recalled. He was told that
the Iraq staffers at the White House had made the change.

He showed the draft to Petraeus, who made a telephone call to get the wording
changed back, Rapp said. (Petraeus remembers it differently, saying that the
wording change was the work of White House speechwriters "who weren't sensitive
to the balance between security and transition," and that the fix was made by
e-mail.)

That night, Bush told the nation that the mission in Iraq would change
eventually, but not now. "Over time, our troops will shift from leading
operations to partnering with Iraqi forces, and eventually to overwatching those
forces," he said. "As this transition in our mission takes place, our troops
will focus on a more limited set of tasks, including counterterrorism operations
and training, equipping and supporting Iraqi forces."

A few weeks after the hearings, Adm. Michael Mullen succeeded Marine Gen. Peter
Pace as chairman of the Joint Chiefs of Staff. Perhaps more important for
Petraeus, the admiral was a longtime friend of Fallon's and was able to reduce
friction between Petraeus and Fallon. Indeed, word in Iraq was that Defense
Secretary Gates had told the new chairman to get Fallon off Petraeus's back.

Meanwhile, something had changed in the way Democrats talked about the war. On
Sept. 26, at a debate in New Hampshire, none of the party's top presidential
candidates would promise to have the U.S. military out of Iraq by January 2013,
more than five years later.

Seeing those comments, Boylan exclaimed to himself, "Hey, we won!"

He was right. Before the hearings, the dominant question in Washington had been
how to get out of Iraq with the least damage. Afterward, the question would
become how to find the least damaging way to stay.

David Kilcullen, Petraeus's counterinsurgency adviser, concluded that just as
the Iraqis had stared at the possibility of full-blown civil war that year but
ultimately turned away, so, too, had the American public considered a leap into
the unknown -- and stopped short.

"America," he said, "has taken a deep breath, looked into the abyss of pulling
out and decided, 'Let's not do it yet.' "

*


Washington Post --

February 8, 2009

OBAMA'S NSC WILL GET NEW POWER
Directive Expands Makeup and Role Of Security Body

by Karen DeYoung

http://www.washingtonpost.com/wp-dyn/content/
article/2009/02/07/AR2009020702076.html

President Obama plans to order a sweeping overhaul of the National Security
Council, expanding its membership and increasing its authority to set strategy
across a wide spectrum of international and domestic issues.

The result will be a "dramatically different" NSC from that of the Bush
administration or any of its predecessors since the forum was established after
World War II to advise the president on diplomatic and military matters,
according to national security adviser James L. Jones, who described the changes
in an interview. "The world that we live in has changed so dramatically in this
decade that organizations that were created to meet a certain set of criteria no
longer are terribly useful," he said.

Jones, a retired Marine general, made it clear that he will run the process and
be the primary conduit of national security advice to Obama, eliminating the
"back channels" that at times in the Bush administration allowed Cabinet
secretaries and the vice president's office to unilaterally influence and make
policy out of view of the others.

"We're not always going to agree on everything," Jones said, and "so it's my job
to make sure that minority opinion is represented" to the president. "But if at
the end of the day he turns to me and says, 'Well, what do you think, Jones?,'
I'm going to tell him what I think."

The new structure, to be outlined in a presidential directive and a detailed
implementation document by Jones, will expand the NSC's reach far beyond the
range of traditional foreign policy issues and turn it into a much more elastic
body, with Cabinet and departmental seats at the table -- historically occupied
only by the secretaries of defense and state -- determined on an issue-by-issue
basis. Jones said the directive will probably be completed this week.

"The whole concept of what constitutes the membership of the national security
community -- which, historically has been, let's face it, the Defense
Department, the NSC itself and a little bit of the State Department, to the
exclusion perhaps of the Energy Department, Commerce Department and Treasury,
all the law enforcement agencies, the Drug Enforcement Administration, all of
those things -- especially in the moment we're currently in, has got to embrace
a broader membership," he said.

New NSC directorates will deal with such department-spanning 21st-century issues
as cybersecurity, energy, climate change, nation-building and infrastructure.
Many of the functions of the Homeland Security Council, established as a
separate White House entity by President Bush after the terrorist attacks of
Sept. 11, 2001, may be subsumed into the expanded NSC, although it is still
undetermined whether elements of the HSC will remain as a separate body within
the White House.

Over the next 50 days, John O. Brennan, a CIA veteran who serves as presidential
adviser for counterterrorism and homeland security and is Jones's deputy, will
review options for the homeland council, including its responsibility for
preparing for and responding to natural and terrorism-related domestic
disasters. In a separate interview, Brennan described his task as a "systems
engineering challenge" to avoid overlap with the new NSC while ensuring that
"homeland security matters, broadly defined, are going to get the attention they
need from the White House."

Organizational maps within the government will be redrawn to ensure that all
departments and agencies take the same regional approach to the world, Jones
said. The State Department, for example, considers Afghanistan, Pakistan and
India together as South Asia, while the Pentagon draws a line at the Pakistan-
India border, with the former under the Central Command and the latter part of
the Pacific Command. Israel is part of the military's European Command, but the
rest of the Middle East falls under Central Command; the State Department
combines Israel and the Arab countries surrounding it in its Near East Bureau.

"We are going to reflect in the NSC all the regions of the world along some map
line we can all agree on," Jones said.

The national security process, he said, will also be "transparent to its
clients" inside the administration, with meeting agendas and outcomes made
available to "the whole community" in real time. Each department will appoint
someone to monitor the NSC process, enabling senior officials across the
government to be ready to jump into issues without steep learning curves.

Directorates inside Jones's NSC staff will oversee implementation of decisions.
"It doesn't mean that we micromanage or supervise," he said. "But you have to
make sure, . . . particularly if it's a presidential decision, that the
president is kept abreast of how things are going. That it doesn't just fall off
the end of the table and disappear into outer space."

Most modern chief executives have issued an early directive outlining a
structure for making national security decisions. Although the 1947 National
Security Act created the NSC and listed its membership -- including the
president, the vice president, and the secretaries of state and defense -- each
president has redefined it to fit his own needs and style. In recent
administrations, the CIA director, the chairman of the Joint Chiefs of Staff and
at times the Treasury secretary have regularly attended principals meetings. At
the same time, the role and power of the president's national security adviser,
and the size of his staff, have grown larger or smaller depending on the
president's wishes.

But initial presidential intentions have often been waylaid by personalities and
events. George W. Bush criticized Bill Clinton's NSC style as rambling and
indecisive. Over the next eight years, however -- as first-term Bush adviser
Condoleezza Rice was outmaneuvered by Vice President Richard B. Cheney and
Defense Secretary Donald H. Rumsfeld and as Bush's second term became mired in
an unpopular war and a failing economy -- decision-making quickly became more
reactive than strategic, and deliberations were opaque to all but a small inner
circle.

The Obama administration -- with powerful figures such as Secretary of State
Hillary Rodham Clinton and Defense Secretary Robert M. Gates -- appears crowded
at the top of the national security pyramid and heavy with military officials,
including Jones himself and retired Navy Adm. Dennis C. Blair as director of
national intelligence. Special envoys to trouble spots -- former diplomat
Richard C. Holbrooke to Afghanistan and Pakistan, and former senator George J.
Mitchell to the Middle East -- have been given broad presidential authority.

Although Jones said he strongly supports increased resources for the State
Department, which is increasingly dwarfed by the size and expanding missions of
the Defense Department, he has long been an outspoken proponent of a "pro-active
military" in noncombat regions. He has advocated military collaboration with the
oil and gas industry and with nongovernmental organizations abroad.

But Jones said he sees an administration filled with colleagues rather than
competitors. Since Jan. 20, "I've had more meetings with the secretary of state
and the secretary of defense than I've had in my entire lifetime," said Jones,
who served as Marine Corps commandant, NATO military chief and, under Bush, a
special Middle East envoy.

During a midafternoon interview last Thursday, Jones said he had already spoken
face to face with Gates and had four telephone conversations with him that day.
He has set up a standing Wednesday morning meeting with Gates and Clinton
together in his office.

"I believe in collegiality . . . in sounding out people and getting them to
participate," Jones said. "I notice the president is very good at that." But he
made clear he plans to apply military-like discipline to the NSC. "The most
important thing is that you are in fact the coordinator and you're the guy
around which the meetings occur. When we chair a principals meeting, I'm the
chairman." One of the first of many internal Bush administration clashes
occurred when Cheney proposed that he, rather than Rice, chair NSC meetings.

In his initial conversations with Obama before taking the job, Jones confirmed,
he insisted on being "in charge" and having open and final access to the
president on all national security matters. "We engaged in about an hour-long
discussion about what I was already thinking about the NSC; it happened, I
think, to mesh pretty well with what his instincts were. He was clear about the
role of the national security adviser," Jones said of Obama.

The NSC will take on all national security matters that are strategic in nature
and "of such importance that the president of the United States would care"
about them, he said. Action groups from various departments and agencies will be
formed around specific issues for as long as it takes to resolve them. "Some of
these things will be very short-term. When the problem goes away, the group goes
away." Others will be ongoing. "An Afghan strategic review, that's going to take
a while," Jones said. "The policy that is generated from that review, and the
implementation, is going to take a while."

Some principals will be regulars at the NSC "just by force of issues," he said,
and "you can't just designate the whole government as being there." But everyone
should be kept aware of "what's going on" and given an opportunity to say, 'Wait
a minute, I've got something to say here.' "

*


The Times (UK) --

February 8, 2009

ON THE TRAIL OF TORTURE

Binyam Mohamed's alleged mistreatment in US-sponsored jails puts Britain
on the spot about how much it knew of the methods its ally was using

by Stephen Grey and David Leppard

http://www.timesonline.co.uk/tol/news/world/us_and_americas/article5683691.ece

Prisoner No 1458 at Guantanamo Bay, Cuba, woke up each day last week in his
solitary cell and waited for the inevitable: the arrival of a team of guards to
take him down the corridor in shackles to be painfully force fed through a tube.

This was not another attempt to extract a confession, but an attempt to keep
Binyam Mohamed alive. The 30-year-old former resident of Notting Hill, west
London, was continuing his hunger strike against what he sees as failed promises
to set him free. When he last saw his lawyer two weeks ago, his arms, she said,
stuck out of his 6ft body "like little thin twigs".

Although previously accused by US authorities of plotting a terrorist attack on
American soil, Mohamed has not been charged with any crime. His former military
prosecutor declared a month ago that he presented no threat to either America or
Britain.

After losing almost 50lb in weight, and wasting further by the day, he was
probably in no state to be told or even to care that two High Court judges in
London last Wednesday were appealing for the public release of "powerful
evidence" that might help prove his astonishing claims of mistreatment to be
true. The issues at stake, said the British judges, were nothing short of the
lofty interests of "law, free speech and democratic accountability".

Involved shocking allegations of extreme mental and physical torture at the
behest of America's CIA, it is a case that has threatened to embarrass the new
administration of President Barack Obama, whose inaugural speech included a
pledge to halt such activities, as well as to shed an unwelcome spotlight on
what exactly the British government knew and kept secret about potential crimes
committed by its closest ally.

IT was about 10pm local time on July 21, 2002, when the men in black ski masks
arrived to collect Mohamed from where he was being held at Islamabad airport.
They began by stripping him naked. They put him in a nappy and a tracksuit,
blindfolded him and taped a mask across his mouth, he recalled.

They were a CIA paramilitary team that had come to scoop him up and place him on
an executive jet used by the US spy agency to "render" terrorist suspects to and
from jail cells across the world. In Mohamed's case, his destination, where he
arrived at 3.43am the following day, was the Moroccan capital, Rabat.

Though never confirmed officially by the United States, evidence that verified
this "rendition" to Morocco came from the flight logs of the now notorious
Gulfstream jet involved. It matched the exact details of Mohamed's testimony. It
has always been much harder to assess the truth of his account of torture that
he said occurred in Pakistan before his transfer and in Morocco soon after, even
if there are many who report similar treatment.

After he was first arrested in Karachi in April 2002, Mohamed said that soon
after the first questions from Americans, Pakistani interrogators followed up by
hanging him by a leather strap round his wrist, beating him, and threatening him
with a pistol to the head. Then, when this stopped, an agent from British
intelligence came to hint to him that he should cooperate or face being sent to
be tortured by Arabs. When he was flown to Morocco, he said, it got worse. He
was beaten savagely and at one stage his genitals were cut with razor blades.

Again there was a British connection, he alleged. A book of photographs of
people at a London mosque had been shown to him, as well as searching questions
posed about his life in Notting Hill. The agents called their paperwork the
"British file".

In January 2004, Mohamed said he was rendered onwards by the Americans to Kabul
(again confirmed by CIA flight records). This time he was held in a covert CIA
"black site" known as the Dark Prison. Inmates here were held day and night
without light while being bombarded with constant loud music.

Only after a journey of more than two years between secret prisons, did Mohamed,
by his account, emerge from clandestine detention to the more open but still
harsh world of US military detention. And in Guantanamo, he finally got to tell
his story to the British lawyer Clive Stafford Smith.

Born in 1978, Mohamed had moved to Washington DC with his family when he was
young. He and his father, an Ethiopian Airlines official, then moved to London,
where he lived from the age of 16 to 22.

Some time in the spring of 2001, Mohamed travelled to Afghanistan. According to
later accusations (and it is not clear which, if any, charges US prosecutors
still aim to pursue), he attended training at Al-Qaeda camps, went on the run
after 9/11, and became a companion of a former street gangster from Chicago
named Jose Padilla, or the "dirty bomber". The pair were said to have associated
with Al-Qaeda leaders such as Abu Zubaydah and Khalid Sheikh Mohamed and to have
hatched plots to explode a devastating radioactive bomb in the US.

While Padilla was arrested in May 2002 as he returned to the US and later
convicted of lesser charges, Mohamed was seized a month earlier in Karachi when
trying to board a flight to Europe using a false passport. With American
intelligence alerted, his journey through the system began.

During his detention, Mohamed made several confessions. He argued later that
these were all forced out of him by torture. But with the US refusing to confirm
even in court any aspect of its secret programme of rendition and detention, he,
like most of its subjects, has struggled to find positive proof to document that
physical abuse.

The twist in his tale came from lawsuits filed in London that in effect forced
the British government, against its earlier wishes, to take up the cases of
Guantanamo detainees such as Mohamed who, while legally resident in Britain,
were not UK citizens. In turn, this forced the government in Mohamed's case to
reveal what evidence was held in secret British intelligence files that might be
useful to prove his innocence.

After judgments last year exposed the fact that the UK was holding some secret
evidence useful to Mohamed's defence -- mainly information shared with Britain
by US intelligence -- the US government let Mohamed's defence team see those
documents, provided that they remained secret.

Last week, however, Lord Justice Thomas and Mr Justice Lloyd Jones, took matters
further, arguing that while it was not for them to order public disclosure of US
secret material, particularly in the face of clear and dire "threats" by the US
government to reduce intelligence-sharing with Britain if they did, there was a
pressing case for the information to be revealed in public.

In the House of Commons, David Miliband, the foreign secretary, denied there
were such explicit threats. But he did confirm that releasing the documents
despite strong US protests would result in "real and significant damage" to
Britain's national security.

One way or another, it was a court judgment that put Obama's White House on the
spot. Despite the new president's condemnations of the Bush administration and
its promise to break with the past on issues of rendition and torture: how far
was Obama willing to go in exposing the secret trail of evidence that would
document the most controversial aspects of the years since 9/11? Was he willing
to publish material that could help set free terrorist suspects? Or material
that could result in the prosecution of CIA officers or the officials who
advised them? Or would he prefer to see the whole matter left buried in a dusty
but well-guarded vault?

The 42 secret documents obtained by the High Court -- summarised in just seven
paragraphs censored from the public judgment -- were said to refer only to one
part of Mohamed's treatment, his alleged torture in Pakistan. But establishing
the principle of exposing such things, some US officials suggest, could open the
floodgates to exposing the secrets of rendition and secret detention.

Even just this limited material, said the judges, gave rise to an "arguable case
of torture or cruel, inhuman or degrading treatment" in law. As "admissions" by
US government officials about how Mohamed was treated, they could possibly be
used as evidence in a criminal court.

At Thames House, the riverside headquarters of MI5, intelligence officials were
understandably made jittery last week by all this attention drawn by the High
Court's judgment. It threatened to expose lingering tensions in the darker side
of the agency's "special relationship" with its American "cousins".

While the pre-Obama CIA might have believed sleep deprivation and waterboarding
were sometimes acceptable ways to interrogate prisoners, Whitehall officials
were keen to point out that for Britain they were certainly not. British
intelligence had a strict "no torture" policy.

However, for Mohamed's legal team Britain's alleged complicity in the case of
their client is more subtle -- but still significant.

After being told by the Americans of Mohamed's arrest in 2002, MI5 had
dispatched an officer to speak to him in Karachi, evidence in the High Court
case confirmed.

Mohamed was said to have told the MI5 officer about his time in the UK. This
included details of mosques he attended and how he was recruited to go to
Afghanistan for terror training. He admitted he had seen a computer file in
Lahore that apparently contained details of how to make a dirty bomb. But
Mohamed told the MI5 officer -- whom he knew as "John" -- that he thought the
whole thing was a joke.

"John" was clearly unimpressed. But his report back to Thames House may well
come back to haunt him.

"I told [Mohamed] that he had an opportunity to help us and help himself. The US
authorities will be deciding what to do with him and this would depend to a very
large degree on his level of cooperation.

"I said that if he could persuade me he was telling the complete truth I would
seek to use my influence to help him . . . I said it must be obvious to him that
he would get more lenient treatment if he cooperated." Shortly after the
interview Mohamed disappeared into the CIA's rendition programme.

This weekend, amid rumours in Westminster that the police might now be called in
to investigate MI5, senior Whitehall officials admitted that "John's" report
could present MI5 with difficulties. Under the 1988 Criminal Justice Act it is
illegal for British officials to commission or acquiesce in acts of torture
anywhere in the world. The crime can be punished by life imprisonment.

Whether or not Mohamed was tortured, and whether or nor "John" was culpable, his
case raises a far larger question. Despite Gordon Brown's declarations
suggesting otherwise, do the British security services use intelligence that has
been obtained through torture?

In a little noticed debate in a House of Lords committee last Thursday, Baroness
Eliza Manningham-Buller, MI5's director-general between 2002 and 2007, went
further than any of her colleagues in explaining the moral dilemma.

"It is pretty well impractical always to check whether something has been
derived from torture unless you have reason to suspect it at the beginning," she
said.

"Literally thousands of pieces of intelligence are shared daily between the UK,
our allies and people who might not so reasonably be described as our allies. I
hope the minister will be able to confirm my comment on the amount of material
that is going round the place and the impracticality of checking each bit for
torture."

That amounts to an admission that MI5 knows it has almost certainly used
torture-stained intelligence, despite claiming it does not condone it.

It also emerged last week that none of the 42 documents unearthed by the High
Court hearing about the Mohamed case had been passed to a full-scale inquiry
into the practice of rendition by parliament's intelligence and security
committee in 2007. The inquiry had cleared the UK government of complicity in
the US programme. Britain, the report suggested, was never told by the CIA
exactly where it was holding prisoners and what techniques were being used to
extract intelligence.

The chief of the Secret Intelligence Service (MI6), Sir John Scarlett, had told
the committee it had never "crossed my mind" that US intelligence was coming
from torture. After all, he said: "We are talking about the Americans, our
closest ally."

In their ruling last week the judges said the MPs could now use the new
documents to reopen their inquiries and ask witnesses from MI6 and MI5 some
"searching and difficult questions". The conclusions of the inquiry might be
different, they suggested.

In Washington the questions may be even tougher. In a US federal court hearing
on rendition in San Francisco tomorrow, lawyers for Mohamed and others will hope
to hear whether Obama will abandon what has so far been a blanket defence that
has sunk every court case lodged on torture and rendition in American courts --
namely that any court hearings on the subject would simply violate "state
secrets" and should be blocked.

For Mohamed himself, none of these endless hearings seem to move him a step
closer to freedom. After 2,248 days in captivity, his last words to his military
lawyer as she left were: "They don't care if I live or die."

*


The Telegraph (UK) --

February 7, 2009

UK GOVERNMENT SUPPRESSED EVIDENCE ON BINYAM MOHAMED TORTURE
BECAUSE MI6 HELPED HIS INTERROGATORS

The Government suppressed evidence on the torture of terror suspect Binyam
Mohamed because the documents reveal that MI6 helped his interrogators.

by Tim Shipman and Melissa Kite

http://tinyurl.com/dhmz59

http://www.telegraph.co.uk/news/newstopics/politics/defence/4551441/
UK-government-suppressed-evidence-on-Binyam-Mohamed-torture-
because-MI6-helped-his-interrogators.html

Material in a CIA dossier on Mr Mohamed that was blacked out by High Court
judges contained details of how British intelligence officers supplied
information to his captors and contributed questions while he was brutally
tortured, The Sunday Telegraph has learned.

Intelligence sources have revealed that spy chiefs put pressure on Mr Miliband
to do nothing that would leave serving MI6 officers open to prosecution, or to
jeopardise relations with the CIA, which is passing them "top notch" information
on British terrorist suspects from its own informers in Britain.

Mr Mohamed, 30, an Ethiopian, was granted refugee status in Britain in 1994. He
was picked up in Pakistan in 2002 on suspicion of involvement in terrorism,
rendered to Morocco and Afghanistan, tortured and then sent to Guantanamo Bay in
2004. All terror charges against him were dropped last year.

Two High Court judges last week said they wanted to release the full contents of
a CIA file on his treatment but they held back seven paragraphs of information
after David Miliband, the Foreign Secretary, argued that it could compromise
intelligence sharing with the US.

A British official, who is regularly briefed on intelligence operations, said:
"The concern was that the document revealed that intelligence from the British
agencies was used by the Americans and that there were British questions asked
while Binyam Mohamed was being tortured.

"Miliband is being pushed hard by the intelligence agencies to protect the
identity of those involved."

The 25 lines edited out of the court papers contained details of how Mr
Mohamed's genitals were sliced with a scalpel and other torture methods so
extreme that waterboarding, the controversial technique of simulated drowning,
"is very far down the list of things they did," the official said.

Another source familiar with the case said: "British intelligence officers knew
about the torture and didn't do anything about it. They supplied information to
the Americans and the Moroccans. They supplied questions, they supplied
photographs. There is evidence of all of that."

David Davis, the former shadow home secretary who first highlighted the case,
said: "What has become clear is that the information being held back is not
protecting the American government who have made a clean breast of their
involvement in torture, but the British government, where at least two cabinet
ministers have denied any complicity whatsoever.

"It is very clear who stands to be embarrassed by this and who is being
protected by this secrecy. It is not the Americans, it is Labour ministers."

The full document on Mr Mohamed could still be released. President Barack Obama
is under pressure from the House of Representatives Judiciary Committee to
release the unedited report.

A source on the committee described the case as "shocking" and told The Sunday
Telegraph: "If the President doesn't act we could hold a hearing or write to
subpoena the documents. We need to know what's in those documents."

The Attorney General, Baroness Scotland, is now considering whether British
intelligence officers can be charged in the UK. Her office says the matter is
still under review.

Clive Stafford-Smith, Mr Mohamed's lawyer, offered to supply the Attorney
General with his files of evidence in December, but he has heard nothing back.
He condemned the government's attitude to the documents as "an attempt to define
as classified that which is merely political embarrassing".

He expects Mr Mohamed, who is currently on hunger strike, finally to be sent
home from Guantanamo this week.

Despite the criticism of the government's stance, intelligence sources have
revealed that there was a second, legitimate, reason for doing as the US
government asked in restricting the material published: MI5 is more dependent
than ever on the CIA for help in monitoring the 2,000 terrorist suspects in the
UK.

The CIA is now running a large network of its own informers in the British
Pakistani community. Their information has helped thwart terrorist attacks in
the UK and locate senior al-Qaeda operatives abroad.

The US has stepped up intelligence gathering in the UK to such an extent over
the last 18 months that one in four CIA operations designed to prevent a repeat
of the 9/11 attacks on the US homeland is now conducted against targets in the
UK.

*

Washington Post --

February 6, 2009

FOR OBAMA, A TRUSTED VOICE WHO KNOWS THE TERRAIN
Counsel Craig Takes On an Array of Duties

by Anne E. Kornblut

http://www.washingtonpost.com/wp-dyn/content/
article/2009/02/05/AR2009020503817.html

After decades moving through the revolving door between the private sector and
government service, Gregory B. Craig has landed again at the White House,
serving as counsel to a young administration in need of a steadying hand.

Less than three weeks into his tenure, Craig has already played an outsize role
in shaping the Obama administration. He safely guided the transition team
through a scandal in which the governor of Illinois sought to auction off
President Obama's old Senate seat. He produced the four executive orders that
defined Obama's opening act in office -- overturning Bush-era rules on detention
of enemy combatants and torture -- and has crafted or is in the process of
drafting as many as 35 other such documents on Obama's behalf.

Now, amid a series of embarrassing personnel stumbles that have bogged down the
administration's attempt to move swiftly to its legislative agenda, Craig is
assuming control of the vetting process for nominees. That portfolio includes
helping shepherd the next choice for secretary of health and human services, who
will replace former senator Thomas A. Daschle (D-S.D.) after his decision to
step aside because of tax problems, and making sure the nomination of Rep. Hilda
L. Solis (D-Calif.) as labor secretary does not fall victim to the same fate
after tax liens against her husband's business were revealed yesterday.

But his most important role, White House officials say, is as a trusted voice
who has lived through the extremes of Washington controversies and has a keen
eye for a potential conflict of interest or a decision that might trigger public
outcry.

Though he is the senior lawyer, Craig, 63, has brought a youthful vigor into the
counsel's office, where he is building, he said in an interview in his office
yesterday, "the greatest new law firm on the face of the planet." He has been
spotted at least once darting around the West Wing on a weekend afternoon in
white corduroys, a blue fleece and loafers -- straight from a Tommy Hilfiger
catalogue, one aide recalled.

But Craig's mission is among the most weighty in the White House. In addition to
thoroughly revamping the government's approach to national security and the
handling of those captured in the fight against terrorism, he is leading the
search for judges and prosecutors nationwide (including 17 court of appeals and
30 district court vacancies, and all U.S. attorneys), monitoring the closure of
detention facilities at Guantanamo Bay and, in the days ahead, overseeing the
vetting process.

He is in the process of helping clarify the ethics rules that Obama issued to
fulfill his campaign promise of a more transparent government, explaining gift
bans and other policies to the new staff. (He even had a hand in winning a
waiver for the famed presidential BlackBerry, though he said it was an issue he
would not discuss.)

In the interview, Craig said he believes he will be in control of the vetting
process by the time the next HHS secretary is chosen. He described Daschle's
withdrawal as a "massive disappointment" and said in referring to the next
nominee: "Obviously, this is a priority of this president, to get it right."

But Craig -- whose resume extends from representing President Bill Clinton
during his impeachment to the cases of the Cuban father of Elian Gonzalez and
the would-be Reagan assassin John Hinckley Jr. -- stopped short of promising a
drama-free administration.

"One can express the hope and the aspiration that there'll be no more problems,
but I've been around long enough to know there's no way that assurance can be
made with confidence," he said. "And actually, one of the excitements of this
job, as well as the excitements of being a lawyer, is you're dealing with the
unexpected all the time."

To that end, Craig is building a team of lawyers with prestigious backgrounds
but a wide range of age and experience. "We're denying all allegations of
empire-building," he said of his newly created counsel's office, responding to
reports that it is bigger than those in the past and is stocked with aggressive
partisans. "We're not a source of anything other than good lawyering."

What kind of lawyering Craig provides could help determine the kind of
presidency Obama has. White House officials say that unlike the Bush
administration, which was defined by the kind of secretive information-gathering
that Alberto Gonzales approved as White House counsel, this administration will
be looking to its counsel to steer it away from controversy.

"One thing we're not looking for in this White House is lawyers to tell us how
to circumvent the rules," senior adviser David Axelrod said. "We want our lawyer
to tell us when we're walking too close to the line."

In the constellation of Obama stalwarts within the West Wing, Craig occupies a
unique space: A consummate Washington insider with extensive ties to the
Clintons, he nonetheless sided with Obama early in the presidential primaries.

Craig seems to have been everywhere over the course of his career -- an adviser
to Sen. Edward M. Kennedy (D-Mass.); an adviser to former secretary of state
Madeleine K. Albright; an attorney, sometimes controversially, to foreign
entities, many in Latin America.

Craig is clearly proud of his work on President Bill Clinton's impeachment --
framed relics from the 1998 Senate trial already hang on his West Wing wall --
but he denied widespread reports that he is estranged from both Clintons.

In the case of Secretary of State Hillary Rodham Clinton -- against whom Craig
campaigned vigorously in the primaries, even authoring a foreign policy memo
harshly criticizing her -- he said he has seen her four or five times in recent
months as she has become a fixture of the administration.

"I've been in meetings with her. I've talked with her. We have a good working
relationship," Craig said. "Things are in good shape. I have nothing worth
saying about that." Although some Clinton loyalists had objected to the
anti-Clinton memo he authored, he said he had intended it merely as an analysis
of her work.

During the general election, Craig grew even more involved in the Obama
operation, playing Sen. John McCain in debate preparations and often showing up
armed with strategies for tripping up Obama. In the midst of an intense mock
debate, officials said, Craig and Obama would sometimes burst out laughing.

"We'd have to lecture them on staying in character," Axelrod said. But beyond
giving Obama a sparring partner, Axelrod said Craig fit naturally into the team
as "an idealist who's got a lot of hard-bitten experience." Other White House
officials said they were struck by how far Craig's reach extended -- describing
him as a politically active lawyer who had a hand in national security,
political issues and day-to-day events, establishing wide influence in just
2 1/2 weeks.

Describing his own mandate, Craig said a top priority is keeping track of how
the recent executive orders are implemented. In particular, he said, he receives
daily updates on the planning for closing the Guantanamo Bay detention center in
Cuba. He has also received feedback from the intelligence community about
Obama's rules barring harsh interrogation techniques.

"I know for a fact already it's had an impact, because the intelligence
community has accommodated their practices to comply with the executive order,
and I've had real-world reporting about that," he said.

*


Washington Post --

January 14, 2009

DETAINEE TORTURED, SAYS U.S. OFFICIAL
Trial Overseer Cites 'Abusive' Methods Against 9/11 Suspect

By Bob Woodward

http://www.washingtonpost.com/wp-dyn/content/
article/2009/01/13/AR2009011303372.html

The top Bush administration official in charge of deciding whether to bring
Guantanamo Bay detainees to trial has concluded that the U.S. military tortured
a Saudi national who allegedly planned to participate in the Sept. 11, 2001,
attacks, interrogating him with techniques that included sustained isolation,
sleep deprivation, nudity and prolonged exposure to cold, leaving him in a
"life-threatening condition."

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first
interview since being named convening authority of military commissions by
Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal
definition of torture. And that's why I did not refer the case" for prosecution.

Crawford, a retired judge who served as general counsel for the Army during the
Reagan administration and as Pentagon inspector general when Dick Cheney was
secretary of defense, is the first senior Bush administration official
responsible for reviewing practices at Guantanamo to publicly state that a
detainee was tortured.

Crawford, 61, said the combination of the interrogation techniques, their
duration and the impact on Qahtani's health led to her conclusion. "The
techniques they used were all authorized, but the manner in which they applied
them was overly aggressive and too persistent.... You think of torture, you
think of some horrendous physical act done to an individual. This was not any
one particular act; this was just a combination of things that had a medical
impact on him, that hurt his health. It was abusive and uncalled for. And
coercive. Clearly coercive. It was that medical impact that pushed me over the
edge" to call it torture, she said.

Military prosecutors said in November that they would seek to refile charges
against Qahtani, 30, based on subsequent interrogations that did not employ
harsh techniques. But Crawford, who dismissed war crimes charges against him in
May 2008, said in the interview that she would not allow the prosecution to go
forward.

Qahtani was denied entry into the United States a month before the Sept. 11
attacks and was allegedly planning to be the plot's 20th hijacker. He was later
captured in Afghanistan and transported to Guantanamo in January 2002. His
interrogation took place over 50 days from November 2002 to January 2003, though
he was held in isolation until April 2003.

"For 160 days his only contact was with the interrogators," said Crawford, who
personally reviewed Qahtani's interrogation records and other military
documents. "Forty-eight of 54 consecutive days of 18-to-20-hour interrogations.
Standing naked in front of a female agent. Subject to strip searches. And
insults to his mother and sister."

At one point he was threatened with a military working dog named Zeus, according
to a military report. Qahtani "was forced to wear a woman's bra and had a thong
placed on his head during the course of his interrogation" and "was told that
his mother and sister were whores." With a leash tied to his chains, he was led
around the room "and forced to perform a series of dog tricks," the report
shows.

The interrogation, portions of which have been previously described by other
news organizations, including The Washington Post, was so intense that Qahtani
had to be hospitalized twice at Guantanamo with bradycardia, a condition in
which the heart rate falls below 60 beats a minute and which in extreme cases
can lead to heart failure and death. At one point Qahtani's heart rate dropped
to 35 beats per minute, the record shows.

The Qahtani case underscores the challenges facing the incoming Obama
administration as it seeks to close the controversial detention facility at
Guantanamo Bay, Cuba, including the dilemmas posed by individuals considered too
dangerous to release but whose legal status is uncertain. FBI "clean teams,"
which gather evidence without using information gained during controversial
interrogations, have established that Qahtani intended to join the 2001
hijackers. Mohamed Atta, the plot's leader, who died steering American Airlines
Flight 11 into the World Trade Center, went to the Orlando airport to meet
Qahtani on Aug. 4, 2001, but the young Saudi was denied entry by a suspicious
immigration inspector.

"There's no doubt in my mind he would've been on one of those planes had he
gained access to the country in August 2001," Crawford said of Qahtani, who
remains detained at Guantanamo. "He's a muscle hijacker.... He's a very
dangerous man. What do you do with him now if you don't charge him and try him?
I would be hesitant to say, 'Let him go.' "

That, she said, is a decision that President-elect Barack Obama will have to
make. Obama repeated Sunday that he intends to close the Guantanamo center but
acknowledged the challenges involved. "It is more difficult than I think a lot
of people realize," Obama said on ABC's "This Week," "and we are going to get it
done, but part of the challenge that you have is that you have a bunch of folks
that have been detained, many of whom may be very dangerous, who have not been
put on trial or have not gone through some adjudication. And some of the
evidence against them may be tainted, even though it's true."

President Bush and Vice President Cheney have said that interrogations never
involved torture. "The United States does not torture. It's against our laws,
and it's against our values," Bush asserted on Sept. 6, 2006, when 14 high-value
detainees were transferred to Guantanamo from secret CIA prisons. And in a
interview last week with the Weekly Standard, Cheney said, "And I think on the
left wing of the Democratic Party, there are some people who believe that we
really tortured."

"I sympathize with the intelligence gatherers in those days after 9/11, not
knowing what was coming next and trying to gain information to keep us safe,"
said Crawford, a lifelong Republican. "But there still has to be a line that we
should not cross. And unfortunately what this has done, I think, has tainted
everything going forward."

"The Department has always taken allegations of abuse seriously," Pentagon
spokesman Geoff Morrell said in an e-mail. "We have conducted more than a dozen
investigations and reviews of our detention operations, including specifically
the interrogation of Mohammed Al Qahtani, the alleged 20th hijacker. They
concluded the interrogation methods used at GTMO, including the special
techniques used on Qahtani in 2002, were lawful. However, subsequent to those
reviews, the Department adopted new and more restrictive policies and procedures
for interrogation and detention operations. Some of the aggressive questioning
techniques used on Al Qahtani, although permissible at the time, are no longer
allowed in the updated Army field manual."

After the Supreme Court ruled in the 2006 Hamdan v. Rumsfeld case that the
original military commission system for Guantanamo Bay violated the Constitution
and the Geneva Conventions, Congress rewrote the rules and passed the Military
Commissions Act, creating a new structure for trials by commissions. The act
bans torture but permits "coercive" testimony.

Crawford said she believes that coerced testimony should not be allowed. "You
don't allow it in a regular court," said Crawford, who served as a judge of the
United States Court of Appeals for the Armed Forces from 1991 to 2006.

Under the act, Crawford is a neutral official overseeing charges, trials and
sentencing, with ultimate decision-making power over all cases coming before the
military commissions.

In May 2008, Crawford ordered the war-crimes charges against Qahtani dropped but
did not state publicly that the harsh interrogations were the reason. "It did
shock me," Crawford said. "I was upset by it. I was embarrassed by it. If we
tolerate this and allow it, then how can we object when our servicemen and
women, or others in foreign service, are captured and subjected to the same
techniques? How can we complain? Where is our moral authority to complain? Well,
we may have lost it."

The harsh techniques used against Qahtani, she said, were approved by then-
Defense Secretary Donald H. Rumsfeld. "A lot of this happened on his watch," she
said. Last month, a Senate Armed Services Committee report concluded that
"Rumsfeld's authorization of aggressive interrogation techniques for use at
Guantanamo Bay was a direct cause of detainee abuse there." The committee found
the interrogation techniques harsh and abusive but stopped short of calling them
torture.

An aide to the former defense secretary accused the committee chairman, Carl M.
Levin (D-Mich.), of pursuing a politically motivated "false narrative" that is
"unencumbered by the preponderance of the facts."

In June 2005, Time magazine obtained 83 pages of Qahtani's interrogation log and
published excerpts that showed some of the extreme abuse. The report of a
military investigation released the same year concluded that Qahtani's
interrogations were "degrading and abusive."

Crawford said she does not know whether five other detainees accused of
participating in the Sept. 11 plot, including alleged mastermind Khalid Sheik
Mohammed, were tortured. "I assume torture," she said, noting that CIA Director
Michael V. Hayden has said publicly that Mohammed was one of three detainees
waterboarded by the CIA. Crawford declined to say whether she considers
waterboarding, a technique that simulates drowning, to be torture.

The five detainees face capital murder charges, and Crawford said she let the
charges go forward because the FBI satisfied her that they gathered information
without using harsh techniques. She noted that Mohammed has acknowledged his
Sept. 11 role in court, whereas Qahtani has recanted his self-incriminating
statements to the FBI.

"There is no doubt he was tortured," Gitanjali S. Gutierrez, Qahtani's civilian
attorney, said this week. "He has loss of concentration and memory loss, and he
suffers from paranoia.... He wants just to get back to Saudi Arabia, get married
and have a family." She said Qahtani "adamantly denies he planned to join the
9/11 attack.... He has no connections to extremists." Gutierrez said she
believes Saudi Arabia has an effective rehabilitation program and Qahtani ought
to be returned there.

When she came in as convening authority in 2007, Crawford said, "the prosecution
was unprepared" to bring cases to trial. Even after four years working possible
cases, "they were lacking in experience and judgment and leadership," she said.
"A prosecutor has an ethical obligation to review all the evidence before making
a charging decision. And they didn't have access to all the evidence, including
medical records, interrogation logs, and they were making charging decisions
without looking at everything."

She noted that prosecutors are required to determine whether any evidence
possessed by the government could be exculpatory; if it is, they must turn it
over to defense lawyers. It took more than a year, she said -- and the
intervention of Deputy Defense Secretary Gordon England -- to ensure they had
access to all the information, much of it classified.

Crawford said detainee interrogation practices are a blot on the reputation of
the United States and its military judicial system. "There's an assumption out
there that everybody was tortured. And everybody wasn't tortured. But
unfortunately perception is reality." The system she oversees probably can't
function now, she said. "Certainly in the public's mind, or politically
speaking, and certainly in the international community" it may be forever
tainted. "It may be too late."

She said Bush was right to create a system to try unlawful enemy combatants
captured in the war on terrorism. The implementation, however, was flawed, she
said. "I think he hurt his own effort.... I think someone should acknowledge
that mistakes were made and that they hurt the effort and take responsibility
for it."

"We learn as children it's easier to ask for forgiveness than it is for
permission," Crawford said. "I think the buck stops in the Oval Office."

[ Researchers Julie Tate and Evelyn Duffy contributed to this report. ]

*


New York Times --

January 4, 2009

PORTRAIT EMERGES OF ANTHRAX SUSPECT'S TROUBLED LIFE

by Scott Shane

http://www.nytimes.com/2009/01/04/us/04anthrax.html

FREDERICK, Md. -- Inside the Army laboratory at Fort Detrick, the government's
brain for biological defense, Bruce Edwards Ivins paused to memorialize his
moment in the spotlight as the anthrax panic of 2001 reached its peak.

Dr. Ivins titled his e-mail message "In the lab" and attached photographs: the
gaunt microbiologist bending over Petri dishes of anthrax, and colonies of the
deadly bacteria, white commas against blood-red nutrient.

Outside, on that morning of Nov. 14, 2001, five people were dead or dying, a
dozen more were sick and fearful thousands were flooding emergency rooms. The
postal system was crippled; senators and Supreme Court justices had fled
contaminated offices. And the Federal Bureau of Investigation was struggling
with a microbe for a murder weapon and a crime scene that stretched from New
York to Florida.

But Dr. Ivins was chipper -- the anonymous scientist finally at the center of
great events. "Hi, all," he began the e-mail message. "We were taking some
photos today of blood agar cultures of the now infamous 'Ames' strain of
Bacillus anthracis. Here are a few." He sent the message to those who ordinarily
received his corny jokes and dour news commentaries: his wife and two teenage
children, former colleagues and high school classmates. He even included an FBI
agent working on the case.

Dr. Ivins, who had helped develop an anthrax vaccine to protect American troops,
had spent his career waiting for a biological attack. Suddenly, at 55, he was
advising the FBI and regaling friends with scary descriptions of the deadly
powder, his expertise in demand.

One recipient of his e-mail message, however, a graduate-school colleague,
looked at the photograph of Dr. Ivins and leapt to a shocking conclusion.

"I read that e-mail, and I thought, 'He did it'," the fellow scientist, Nancy
Haigwood, said in a recent interview.

Nearly seven years and many millions of dollars later, after an investigation
that included both path-breaking science and costly bungling, the FBI concluded
that Dr. Haigwood had been right: the anthrax killer had been at the
investigators' side all along. Prosecutors said they believed they had the
evidence to prove that Dr. Ivins alone carried out the attacks, but their
assertions immediately met with skepticism among some scientists, lawmakers and
co-workers of Dr. Ivins.

With the FBI preparing to close the case, The New York Times has taken the
deepest look so far at the investigation, speaking to dozens of Dr. Ivins's
colleagues and friends, reading hundreds of his e-mail messages, interviewing
former bureau investigators and anthrax experts, reviewing court records, and
obtaining, for the first time, police reports on his suicide in July, including
a lengthy recorded interview with his wife.

That examination found that unless new evidence were to surface, the enormous
public investment in the case would appear to have yielded nothing more
persuasive than a strong hunch, based on a pattern of damning circumstances,
that Dr. Ivins was the perpetrator.

Focused for years on the wrong man, the bureau missed ample clues that Dr. Ivins
deserved a closer look. Only after a change of leadership nearly five years
after the attacks did the bureau more fully look into Dr. Ivins's activities.
That delay, and his death, may have put a more definitive outcome out of reach.

Brad Garrett, a respected FBI veteran who helped early in the case before his
retirement, said logic and evidence point to Dr. Ivins as the most likely
perpetrator.

"Does that absolutely prove he did it? No," Mr. Garrett said. With no confession
and no trial, he said, "you're going to be left not getting over the top of the
mountain."

The Times review found that the FBI had disproved the assertion, widespread
among scientists who believe Dr. Ivins was innocent, that the anthrax might have
come from military and intelligence research programs in Utah or Ohio. By 2004,
secret scientific testing established that the mailed anthrax had been grown
somewhere near Fort Detrick. And anthrax specialists who have not spoken out
previously said that, contrary to some skeptics' claims, Dr. Ivins had the
equipment and expertise to make the powder in his laboratory.

FBI agents, moreover, have shown that Dr. Ivins, a church musician and amateur
juggler whom colleagues cherished, hid from them a shadow side of mental
illness, alcoholism, secret obsessions and hints of violence.

Still, doubts persist. The case will be reviewed this year by the National
Academy of Sciences and by Congress. If the FBI is wrong, then a troubled man
was hounded to death and the anthrax perpetrator is still at large, as many of
Dr. Ivins's colleagues at Fort Detrick believe. When institute scientists began
their own review of the evidence, nervous Army officials ordered the inquiry
dropped.

In November, four of Dr. Ivins's closest co-workers wrote a glowing obituary of
their "valued collaborator" for Microbe, the leading microbiology journal. It
did not mention the anthrax accusations and was a singular protest by the four
scientists against the FBI's conclusion.

"His colleagues and friends will remember him not only for his dedication to his
work," the obituary said, "but also for his humor, curiosity and great
generosity."

Fearing an Attack

The Sunday night after the Sept. 11 attacks, Dr. D. A. Henderson, who led the
global campaign to eradicate smallpox and had long been a lonely Cassandra
warning of the bioterrorism threat, was summoned to an emergency meeting with
the secretary of health and human services, Tommy Thompson.

Fearing a germ attack, officials had grounded crop dusters. Apocalyptic warnings
were all over the news media: one study said 100 kilograms of anthrax released
over Washington could kill 1 million to 3 million people.

Now, Dr. Henderson was told, intelligence reports indicated that there might be
a second attack by Al Qaeda, most likely biological. Dr. Henderson gave Mr.
Thompson and his aides a disturbing tutorial on anthrax and smallpox. As the
meeting ended, an aide thanked him.

"I just hope we're not too late," Dr. Henderson replied.

Days later came word of the anthrax letters. First, the death of a tabloid photo
editor in Florida, Robert Stevens. Then the poison letters mailed to NBC News
and The New York Post with notes declaring "Death to America! Death to Israel!"

And finally the letters to Senators Tom Daschle, Democrat of South Dakota, and
Patrick J. Leahy, Democrat of Vermont, spewing deadly spores through the postal
system and across official Washington.

Whoever had ignited panic with a tablespoon of anthrax powder, officials
assumed, would not stop there. Dr. Henderson wondered if the powder came from
the tons of anthrax weaponized by the Soviet Union. Some assumed Al Qaeda was
behind the letters; others suspected Iraq.

"My fear was that this first mailing was the tip of the iceberg," said Bill
Raub, a senior official at the Health and Human Services Department. "We feared
we would be at their mercy."

Then -- nothing. Within days, investigators were piecing together clues pointing
to a domestic source.

First, there were the notes. One warned, "We have this anthrax," and advised the
recipients to take penicillin. Al Qaeda, FBI agents reasoned, would hardly
reduce the death toll with an alert that might have saved lives.

Then there was the strain of anthrax. Dr. Paul S. Keim, an anthrax geneticist at
Northern Arizona University, identified the spores as Ames, a lethal strain most
common in United States research. "It was chilling," Dr. Keim recalled, but also
puzzling. "How in the world did Stevens get a lab strain?"

An alternative theory of a possible perpetrator took shape: the bioevangelist.
An American obsessed by the bioterrorism threat -- maybe a biodefense insider
who might gain in pay or prestige from an attack -- had decided to alert the
nation.

That meant the potential suspects included the very Army scientists now working
so closely with the FBI And at the core of that group was Bruce Ivins.

In 21 years at the Army Medical Research Institute of Infectious Diseases, Dr.
Ivins supplied Hershey's Kisses to office visitors and always showed concern
when a colleague was ill. He toasted departing colleagues with humorous poems.
He livened up parties with his juggling act and led songs from a portable
keyboard at his Catholic church.

Colleagues knew Dr. Ivins, whose e-mail Christmas card one year spelled out
"Happy Holidays" in anthrax spores, was an oddball, wearing outmoded bellbottoms
and lunching on concoctions of tuna, peas and yogurt. But in a place where red
tape and petty rivalry often darkened spirits, he was a bright spot.

"He actually thought of other people," said Melanie Ulrich, who worked with him
on an anthrax project and invited him to the house she shared with her husband,
Ricky Ulrich, also an Army scientist. "He was fun."

Arthur O. Anderson, the top ethicist at the institute, bonded with Dr. Ivins in
the 1980s over their shared experience of adopting children. After that, every
corridor encounter led to a long, probing talk on adoption or the ethical
conundrums of biodefense.

Dr. Anderson said Dr. Ivins had relished provocative conversation. "If you
didn't bite at one of his emotionally laden questions, he'd find another way to
shock you," he said.

They often discussed what they considered groundless criticism of the anthrax
vaccine Dr. Ivins had helped produce, which some soldiers blamed for their
illnesses. "Bruce was thin-skinned," Dr. Anderson said.

In the emotional days after Sept. 11, friends were not surprised when Dr. Ivins
signed up as a Red Cross volunteer. On Sept. 22, 2001 -- a date, it would turn
out, between the two anthrax mailings -- he attended a Red Cross class,
Introduction to Disaster Services. He liked the atmosphere, he told friends, and
three months later, as the crushing workload created by the anthrax letters
began to ease, he applied for more training.

Noting that he worked at the Army institute, he wrote in his December 2001
application, "Perhaps I could help in case of a disaster related to biological
agents."

Odd and Pressing

There was more to Bruce Ivins than his Army colleagues imagined, and Nancy
Haigwood knew it.

She met him in 1976 in the biology department at the University of North
Carolina, where he was a post-doctoral fellow and she was a graduate student.
She found him odd and tried gently to disengage, but he kept in touch, pressing
her with questions about her sorority, Kappa Kappa Gamma.

Dr. Ivins's boss at U.N.C., Dr. Priscilla B. Wyrick, received similar queries
about her sorority, Chi Omega. "He'd say, 'What's your secret password? What's
your secret handshake?' " she recalled. "I thought he was intellectually
interested in secret things."

Dr. Wyrick said she thought of him then as "a goody-two-shoes, aggressive about
his science but very sensitive about how he was portrayed by other people." She
kept up a correspondence with him, and after the letter attack, arranged for him
to give a talk at her current university, East Tennessee State.

Dr. Haigwood's experience with Dr. Ivins was not so benign. Outside her home in
Maryland in 1982, a vandal spray-painted her sorority's Greek initials, "KKG,"
on her fence, sidewalk and fiance's car window. A year later a letter she had
not written appeared under her name in The Frederick News-Post, defending Kappa
Kappa Gamma and the hazing of recruits. She was certain Dr. Ivins was
responsible.

She said she had found Dr. Ivins's attentions creepy. She never told him her
Maryland address, but he found it anyway. Later, in e-mail messages, he
mentioned details about her sons that she had not shared with him.

"He damaged my property, he impersonated me and he stalked me," said Dr.
Haigwood, now director of the Oregon National Primate Research Center.

In November 2001, when she got the e-mailed photograph of Dr. Ivins working with
anthrax in the laboratory, she noticed that he was not wearing gloves -- a
safety breach she thought showed an unnerving "hubris." That fed her hunch that
he had sent the deadly letters.

Knowing her suspicion was an extraordinary leap, she kept it to herself. But
three months later, the American Society for Microbiology sent an appeal from
the FBI to its 40,000 members.

"It is very likely that one or more of you know this individual," the message
said. FBI profilers thought the killer might have made the anthrax during
"off-hours in a laboratory."

Dr. Haigwood called the bureau, and two agents visited her. After that, they
called periodically but gave no hint that they had tried to confirm the
vandalism and stalking.

Soon after Dr. Haigwood's call, there was another reason for investigators to
scrutinize Dr. Ivins. The Army found that in December 2001 he had secretly
swabbed for anthrax spores outside his secure laboratory space.

Suspecting a technician's desk was contaminated, he later told an Army
investigator, he had tested and found a bacillus, the class of bacteria that
includes anthrax. He scrubbed the desk with bleach but did not report the spill,
though he mentioned it several weeks later to Dr. Anderson, his ethicist friend.

"I had no desire to cry 'Wolf!' " Dr. Ivins wrote to Army investigators in April
2002. "I would have been agitating many people for no real reason." Yet Dr.
Ivins wrote that he could not recall whether he had retested the desk for
anthrax after his cleanup, as regulations required.

His conduct was a flagrant violation of biosafety standards. Anthrax spores
outside containment areas could endanger anyone who was not vaccinated. When the
spill was properly investigated, three strains of anthrax were found outside the
laboratory, including the Ames strain on Dr. Ivins's desk.

By then, too, the bureau had detailed records showing when scientists entered
and left the secure laboratories. The documents showed that Dr. Ivins had worked
unusually late hours in his laboratory for several nights before each of the
anthrax mailings, a pattern that stood out even at an institute where night
hours were common.

Yet neither the spill nor the night hours sparked the suspicions of the anthrax
investigators. They were intently focused on another suspect.

Focus on Hatfill

Dr. Ivins's modest bungalow was across the street from Fort Detrick, and he
often walked to work. If he did so on June 25, 2002, a sunny Tuesday, he would
have noticed the hubbub as he passed by the Detrick Plaza apartments.

FBI agents and postal inspectors trudged in and out of one unit, toting away
items for inspection. A horde of reporters milled around nearby; television
helicopters circled overhead. It was one of the most heavily publicized searches
in the history of criminal investigations.

Dr. Steven J. Hatfill, who had given permission for the search, never imagined
this media circus. It was just the beginning of an intrusion into his life by
the FBI and the news media that would show just how tantalizing a case could be
built against a man the government would, six years later, officially clear.

For months, agents had been growing more focused on Dr. Hatfill, a physician and
virologist who had worked from 1997 to 1999 at the Fort Detrick institute.

He had earned a medical degree but had forged his Ph.D. diploma, written an
unpublished novel about a covert bioattack on Washington and bragged on his
resume of a "working knowledge" of biowarfare pathogens. In his apartment,
agents found a harmless bacteria commonly used as an anthrax simulant and a
notebook on anthrax dissemination.

Then there was the timing. One month before the anthrax attacks, the government
suspended Dr. Hatfill's security clearance after questionable results on a
polygraph test, and he told friends he expected to be fired from his job as a
bioterrorism consultant. Two days before each of the two anthrax mailings, Dr.
Hatfill filled a prescription for Cipro, an antibiotic that protected against
anthrax.

Could it all be a coincidence? FBI officials did not think so.

Desperate to find something more definitive against Dr. Hatfill, lead
investigators -- who had to brief the FBI director, Robert S. Mueller III, on
their progress every week -- ordered round-the-clock surveillance. Meticulous
study of tiny brown fibers found stuck to the envelopes led nowhere. Handwriting
comparisons proved useless because the perpetrator had printed in block letters.
DNA found on the outside of the Leahy anthrax envelope turned out to be
inadvertent contamination by a laboratory worker.

Ignoring the grave doubts of some FBI scientists, agents used bloodhounds to try
to link the letters by scent to Dr. Hatfill. They sent divers into a pond
outside Frederick, and when that did not turn up anything, they drained two
ponds hunting for discarded anthrax-making equipment.

Agents were excited when they dredged from the mud a plastic box that they
thought might have been a homemade biological "glove box," built to work safely
on dangerous germs. The excitement lasted only until a Fort Detrick scientist
with a rural Southern upbringing took one look and recognized what the $20,000-
a-day pond-draining had turned up: a turtle trap.

Soon after the pond debacle, Dr. Hatfill began fighting back, filing lawsuits
and dragging FBI officials to all-day depositions. But investigators did not
want to give up on him as a suspect -- in part because overwhelming scientific
evidence was tying the mailed anthrax to Fort Detrick.

By early 2004, FBI scientists had discovered that out of 60 domestic and foreign
water samples, only water from Frederick, Md., had the same chemical signature
as the water used to grow the mailed anthrax.

By late 2005, genetic analysis by top outside experts had matched the spores to
a flask of anthrax at the Army institute. Dr. Ivins had custody of the flask,
but some agents were still convinced Dr. Hatfill was the culprit.

The science alone could not close the case. "We could get to a lab, to a
refrigerator, to a flask," said Dwight E. Adams, the FBI laboratory director
until 2006. "But that didn't put the letters in anyone's hand."

Sudden Interest

Early in 2006, with the investigation largely stalled, Nancy Haigwood heard from
two different FBI agents. Four years after she had reported her suspicions of
Dr. Ivins, the bureau suddenly seemed interested.

"They said, 'We need your help,' " Dr. Haigwood recalled. She was frustrated by
the delay, but when the agents asked her to strike up a new correspondence with
Dr. Ivins, she reluctantly complied. "I was afraid of this man," she said. "I
was convinced he had done it, and I was afraid he'd send me an anthrax letter."

Some agents believed that their bosses were stuck on Dr. Hatfill, and an
internal FBI investigation confirmed their complaint. In mid-2006, Mr. Mueller,
the FBI director, quietly moved Richard Lambert Jr., who had led the anthrax
investigation since 2002, to a new job running the bureau's office in Knoxville,
Tenn. His replacement, Edward Montooth, a veteran of security and intelligence
cases who had worked overseas in places from the Balkans to Indonesia, ordered a
fresh look at the evidence.

For four years, Dr. Ivins, like others at Fort Detrick, had simultaneously been
a trusted FBI technical consultant and a possible suspect. Now the balance was
tipping.

As the bureau's undercover informant, Dr. Haigwood struck up a breezy e-mail
correspondence about scientific grants, pets and travel. Dr. Ivins complained
about psychological screening and other "rather obnoxious and invasive measures"
imposed at Fort Detrick since the anthrax attacks.

"I got so tired of the endless questions that I finally got a lawyer, after
almost three dozen interviews," he wrote in late 2006, referring to interviews
by the FBI agents. One session, he said, was "virtually an interrogation."

In another message, Dr. Ivins complained about feeling "thoroughly beaten down"
but said his volunteer work with the Red Cross had provided welcome relief. "The
Red Cross is my fraternity / sorority," he said.

For Dr. Haigwood, the reference carried disturbing overtones, reflecting the old
obsession with sororities, and with certain women, that Dr. Ivins had hidden
from family and colleagues.

Dr. Ivins still carried resentment from four decades earlier at Lebanon High
School in Ohio, where he had been a nerdy, awkward teenager devoted to
photography and, even then, to the study of bacteria.

In recent years, said Rick Sams, a pharmacologist who had been among Bruce
Ivins's few school friends, Dr. Ivins "shared with me feelings about how he'd
been treated in high school. He was bitter about being excluded."

When Dr. Sams urged him to attend their 40th class reunion, Dr. Ivins refused.
"He said, 'Why should I go? Look how they treated me,' " Dr. Sams said.

The agents learned, in part from Dr. Ivins himself, that he had in his post-
college years made uninvited visits to Kappa Kappa Gamma sorority houses at
U.N.C., the University of Maryland and West Virginia University, once making off
with a sorority's ritual book and cipher device.

That was more than 20 years ago. But more recently, agents discovered, Dr. Ivins
had left a long trail of online postings about Kappa Kappa Gamma. There were
inquiries about arcane details of sorority rituals and a bitter editing battle
over the KKG entry on Wikipedia.

Dr. Ivins hid behind the online handles he used for his proliferating e-mail
addresses -- KingBadger, Jimmyflathead, goldenphoenix. Once, on GreekChat.com,
he described what he said was a family history of mental illness, calling his
mother "an undiagnosed paranoid schizophrenic."

The agents learned that Dr. Ivins had long maintained a post office box to
receive mail without his family's knowledge and took long walks or drives on
sleepless nights. Once, he admitted, he drove all night to Ithaca, N.Y., and
back to leave gifts for a young woman who had left her job in his laboratory to
attend Cornell University.

The agents also found e-mail messages in which Dr. Ivins confessed to alarming
psychiatric problems. During paranoid episodes, he wrote, he felt like "a
passenger on a ride." Even as he worked at his desk, he wrote, "I'm also a few
feet away watching me do it."

Of his group therapy program, he wrote on Sept. 26, 2001, between the two
anthrax mailings, "I'm really the only scary one in the group."

On the face of it, Dr. Ivins's strange secret life seemed less relevant to the
case than Dr. Hatfill's boasts about his bioweapons expertise. But anthrax was
the core of Dr. Ivins's working life.

"He was in charge of producing large quantities of wet spores for research,"
said John W. Ezzell, a Fort Detrick colleague whose anthrax expertise rivaled
that of Dr. Ivins. "So if anybody could have produced a lot of spores without
arousing suspicion, it was him."

Though a public debate had raged for years over whether the mailed anthrax had
been "weaponized" with sophisticated chemical additives, the FBI had concluded
early on that it was not. Dr. Ezzell agreed, as did Jeff Mohr, an expert on
anthrax and other pathogens at the Army's Dugway Proving Ground in Utah.

Without giving an opinion of Dr. Ivins's guilt or innocence, both Dr. Ezzell and
Dr. Mohr said they believed that any experienced microbiologist could have grown
and dried the anthrax using equipment Dr. Ivins had in his laboratory. The
trickiest step, they said, was producing anthrax with the letters' high
concentration of spores per gram, a skill Dr. Ivins had mastered.

Evidence Problems

But even if Dr. Ivins could have made the anthrax, did he? "It's been difficult
for a lot of us to accept this," Dr. Ezzell said. "He was a loyal friend. He was
a diligent worker."

The agents were building what they thought was a prosecutable case against Dr.
Ivins, but gaping holes remained. No evidence placed him in Princeton, N.J.,
where the letters were mailed. No receipt showed that he had bought the same
type of envelopes. No security camera had caught him photocopying the notes.

Nor, in his e-mail messages and conversations with confidants, could agents find
any hint of a confession. One colleague who knew Dr. Ivins well told them, "If
Bruce had done this, he never would have been able to keep quiet about it."

Yet the agents knew he led a compartmentalized life. He went on vacation with
his brother, Charles, each year, but Charles had no idea Bruce had a drinking
problem for which he had been in residential treatment and Alcoholics Anonymous.
Dr. Ivins spent hours in online exchanges about sororities, but his family knew
nothing about it.

Some FBI agents were haunted by the Hatfill precedent. Dr. Hatfill, too, was
eccentric. He, too, had begun drinking heavily as he came under scrutiny. He,
too, had grown depressed and erratic under the FBI's relentless gaze.

What if Dr. Hatfill had committed suicide in 2002, as friends feared he might?
Would the investigators have released their evidence and announced that the
perpetrator was dead?

In May 2007, Dr. Ivins -- assured by prosecutors that he was not a target of the
investigation -- testified under oath to a grand jury on two consecutive days.
He answered all the questions about anthrax. Only once did he plead his Fifth
Amendment right against self-incrimination, when he was asked about his secret
interest in sororities.

A Life Coming Apart

Starting with the search of his house on Nov. 1, 2007, Bruce Ivins's life began
to come irrevocably apart. While some agents carted files, computers and guns
from the house, others questioned his wife and children, intimating that they
knew he was the killer. Fort Detrick officials banned him from working with
anthrax. His career was over.

Last March, after drinking the fruit juice and vodka mix that he had come to
rely on and adding a big dose of Valium, he passed out and was discovered by his
wife, Diane. Despite his denials, she was convinced it was a suicide attempt.

"You know, he's been incredibly, incredibly stressed, because of the way he's
been hounded by the FBI," Mrs. Ivins would later tell Frederick police officers
in a recorded interview. "They've always treated him as if he was guilty, and I
just felt that he couldn't take it anymore."

Dr. Ivins spent much of the spring in residential alcohol treatment outside
Washington and in western Maryland. But when he returned, the FBI agents were
still there, watching his house and trailing him around Frederick.

On July 10, Dr. Ivins reached a breaking point. With a strange smile, he told
his therapy group that he expected to be charged with five murders and rambled
on about killing himself and taking others with him, using his .22-caliber
rifle, Glock handgun and bulletproof vest.

Tipped off by the therapist, Frederick police officers removed Dr. Ivins from
the Army laboratory that day. He voluntarily checked himself in at the Sheppard
Pratt psychiatric hospital in Baltimore.

After a two-week stay, Dr. Ivins was brought home by his wife. She had left a
heartfelt note in his bedroom, saying she hoped that he could turn his life
around and that they could enjoy life together.

"He didn't understand that so many people in the treatment program with him had
lost their families because of their alcoholism," Mrs. Ivins later told the
police. "So I wanted to write down how I felt because I loved him -- you know, I
wanted him to come back and get healthy again so we could continue. He was
retiring in September, and we were going to travel and enjoy our adult children
finally."

Her note was blunt. "I'm hurt, concerned, confused and angry about your actions
the last few weeks," she wrote. "You tell me you love me but you have been rude
and sarcastic and nasty many times when you talk to me. You tell me you aren't
going to get any more guns, then you fill out an online application for a gun
license."

Mrs. Ivins wrote to her husband that he was paying his lawyers a lot of money
but ignoring their advice by contacting two former female laboratory assistants
he was preoccupied with. He was keeping odd hours, walking the neighborhood late
at night and drinking so much caffeine that he was "jumpy and agitated," she
wrote.

But Mrs. Ivins's note also expressed support. "I had written on the bottom of
the paper that I knew he had not been involved in the anthrax letters in any way
and I never doubted his innocence," said the woman who thought she knew him
best.

Even as Mrs. Ivins picked up her husband at the Baltimore hospital last July 24,
his group therapist, Jean C. Duley, was in a Frederick courtroom, testifying
about threats he had left on her answering machine. A judge signed an order at
10:37 a.m. directing Dr. Ivins to stay away from her.

The order would not be necessary. At 12:31 p.m., according to records checked by
the Frederick police, Dr. Ivins stopped in at the Giant Eagle grocery store near
his house and bought Tylenol PM, acetaminophen and an antihistamine. He bought a
few groceries and filled three prescriptions for his psychiatric illness,
possibly a sign that he was thinking about the future.

Then, at 1:21 p.m., evidently concerned that he did not have enough medication
for the purpose he was contemplating, he bought a second container of Tylenol
PM.

Over the next two days, Mrs. Ivins worked her lunchtime shift at a nearby cafe,
went for a swim at Fort Detrick and ran her regular Friday bingo game. In and
out of the house, she saw that her husband was sleeping but had risen at least a
few times, bringing in the mail and eating breakfast.

She did not worry much; depressed, banned from his laboratory, he had been
spending many days in bed. And on the back of her note, he had scribbled that he
had a terrible headache and was going to rest.

"Please let me sleep," he wrote. "Please."

When she found him on the bathroom floor in the middle of a Saturday night, her
voice on the 911 tape was calm and methodical: "He's unconscious. He's breathing
rapidly. He's clammy."

She had been through this before. The dispatcher offered to stay on the line
until the ambulance arrived. "I'm O.K.," Mrs. Ivins said.

One Last Message

Bruce Ivins, the connoisseur of secrets, took with him any knowledge he had of
the anthrax attacks. But he left one more surprise for his family: a clause in
his will intended to enforce his wish to be cremated and have his ashes
scattered. If his demands were not met, $50,000 from his estate would go not to
the family but to Planned Parenthood of Maryland, whose abortion services Mrs.
Ivins abhorred.

It was one last, devious step for a man whose oddities, for many people, made
the FBI's anthrax accusation more plausible.

But like so much about Dr. Ivins, it cut the other way, too. The FBI theorized
that Dr. Ivins had sent anthrax letters to Senators Leahy and Daschle because
they were pro-choice Catholics, offending his anti-abortion views. Would an
anti-abortion absolutist have flirted with a donation to a cause he despised?

On Oct. 6, a lawyer for the Ivins family filed with the Orphans' Court of
Frederick County certification that Planned Parenthood would not receive the
money. His ashes, the document said, "were scattered or spread on the ground, as
he directed."

* * *