=================================== NEWS DIGEST 2009.03.16 - 2009.06.21 =================================== New York Times -- June 7, 2009 US LAWYERS AGREED ON LEGALITY OF BRUTAL TACTIC by Scott Shane and David Johnston http://www.nytimes.com/2009/06/07/us/politics/07lawyers.html WASHINGTON -- When Justice Department lawyers engaged in a sharp internal debate in 2005 over brutal interrogation techniques, even some who believed that using tough tactics was a serious mistake agreed on a basic point: the methods themselves were legal. Previously undisclosed Justice Department e-mail messages, interviews and newly declassified documents show that some of the lawyers, including James B. Comey, the deputy attorney general who argued repeatedly that the United States would regret using harsh methods, went along with a 2005 legal opinion asserting that the techniques used by the Central Intelligence Agency were lawful. That opinion, giving the green light for the CIA to use all 13 methods in interrogating terrorism suspects, including waterboarding and up to 180 hours of sleep deprivation, "was ready to go out and I concurred," Mr. Comey wrote to a colleague in an April 27, 2005, e-mail message obtained by The New York Times. While signing off on the techniques, Mr. Comey in his e-mail provided a firsthand account of how he tried unsuccessfully to discourage use of the practices. He made a last-ditch effort to derail the interrogation program, urging Attorney General Alberto R. Gonzales to argue at a White House meeting in May 2005 that it was "wrong." "In stark terms I explained to him what this would look like some day and what it would mean for the president and the government," Mr. Comey wrote in a May 31, 2005, e-mail message to his chief of staff, Chuck Rosenberg. He feared that a case could be made "that some of this stuff was simply awful." The e-mail messages are now in the hands of investigators at the department's Office of Professional Responsibility, which is preparing a report expected to be released this summer on the Bush administration lawyers who approved waterboarding and other harsh methods. The inquiry, under way for nearly five years, will be the Justice Department's fullest public account of its role in the interrogation program, which President Obama has ended. In years of bitter public debate, the department has sometimes seemed like a black-and-white moral battleground over torture. The main authors of memorandums authorizing the methods -- John C. Yoo, Jay S. Bybee and Steven G. Bradbury -- have been widely pilloried as facilitators of torture. Others, including Mr. Comey, Jack Goldsmith and Daniel Levin, have largely escaped criticism because they raised questions about interrogation and the law. But a closer examination shows a more subtle picture. None of the Justice Department lawyers who reviewed the interrogation question argued that the methods were clearly illegal. For example: ¶Mr. Goldsmith, now a Harvard law professor, unnerved the CIA in June 2004 by withdrawing a 2002 memorandum written by Mr. Yoo that said only pain equal to that produced by organ failure or death qualified as torture. In addition, in a previously undisclosed letter to the agency, Mr. Goldsmith put a temporary halt to waterboarding. But he left intact a secret companion memorandum from 2002 that actually authorized the harsh methods, leaving the CIA free to use all its methods except waterboarding, including wall-slamming, face- slapping, stress positions and more. ¶Mr. Levin, now in private practice, won public praise with a 2004 memorandum that opened by declaring "torture is abhorrent." But he also wrote a letter to the C.I.A that specifically approved waterboarding in August 2004, and he drafted much of Mr. Bradbury's lengthy May 2005 opinion authorizing the 13 methods. ¶Mr. Comey, who had forced a 2004 showdown with White House officials over the National Security Agency's surveillance program, concurred in that Bradbury opinion. His objections focused on a second legal opinion that authorized combinations of the methods. He expressed "grave reservations" and asked for a week to revise the memorandum, warning Mr. Gonzales that "it would come back to haunt him and the department," Mr. Comey said in a 2005 e-mail message to Mr. Rosenberg. Justice Department lawyers involved in the opinions felt torn between what was legal and what was advisable, Mr. Levin said. "Obviously you can only do that which is legal," he said in a recent interview. "But that does not mean you should automatically do something simply because it is legal." The e-mail messages and documents provide new details about a critical year in the interrogation saga, beginning in mid-2004. The CIA inspector general had questioned the legality and effectiveness of the harsh methods, prompting a review of the program. Under intense White House pressure, the Justice Department lawyers in May 2005 approved a series of opinions that reauthorized the harshest practices. The lawyers had to interpret a 1994 antitorture law written largely with despotic foreign regimes in mind, but used starting in 2002, in effect, as a set of guidelines for American interrogators. The law defined torture as treatment "specifically intended to inflict severe physical or mental pain or suffering." By that standard, a succession of Justice Department lawyers concluded that the CIA's methods did not constitute torture. The only issues that provoked debate were waterboarding, which Mr. Goldsmith questioned, and some combinations of multiple techniques, which Mr. Comey resisted. Some outside experts agree that the language of the 1994 law is strikingly narrow. "There's no doubt whatsoever that a great deal of coercive treatment that most people would call torture is not prohibited by the federal antitorture statute," said Benjamin Wittes, a Brookings Institution scholar who has studied interrogation policy. But many believe that even under that law, the Justice Department should have recognized that waterboarding, at least, was torture. To argue otherwise, said Brian Z. Tamanaha, a St. John's University law professor who has studied the interrogation memorandums, required "extraordinary contortions in language and legal analysis." Waterboarding, the near-drowning method that Mr. Obama has described as torture, was used on three operatives for Al Qaeda in 2002 and 2003. The CIA never used the technique after it was reauthorized in 2005. CIA officials had been nervous about the legality of their proposed methods from the start in 2002. They had asked Michael Chertoff, then head of the Justice Department's criminal division, to grant interrogators immunity in advance from prosecution for torture. Mr. Chertoff refused, but neither did he warn the agency against the methods it was proposing. The agency's worst fears about the potential liability of its officers returned with a vengeance in 2004, after the sharp criticism from the agency's inspector general and Mr. Goldsmith's withdrawal of the first torture memorandum. CIA officials demanded a comprehensive legal review. But Mr. Goldsmith resigned in July 2004, and his successor as acting head of the Office of Legal Counsel, Mr. Levin, quickly set to work on the review, assisted by his top deputy, Mr. Bradbury. On July 22, 2004, the Justice Department offered the CIA interim assurance that it could use all methods except waterboarding, which Mr. Goldsmith had questioned. On Aug. 6, Mr. Levin issued another interim letter reauthorizing waterboarding, as long as rules were followed. But in February 2005, when Mr. Levin moved to a job as legal adviser to the National Security Council, the new interrogation opinions had not been approved by all necessary officials. The day before his departure, Mr. Levin stopped by and apologized to Mr. Bradbury for leaving it to him to sign the volatile documents. By April 2005, the opinions were in final form, and Mr. Comey, who had set his own resignation for August, concurred in the 46-page opinion affirming the legality of the 13 techniques. But he told Mr. Gonzales that he strongly objected to Mr. Bradbury's second opinion, allowing multiple techniques to be used in a single interrogation session. Mr. Gonzales told him that he was "under great pressure" from Vice President Dick Cheney to complete both memorandums and that President George W. Bush had asked about them, Mr. Comey recounted in one of the 2005 e-mail messages. Later, after reading a revised draft of the second opinion, Mr. Comey added that "my concerns were not allayed, only heightened." He said he wanted more time to fix the memorandum, but Mr. Gonzales's chief of staff, Theodore Ullyot, told him the White House would not wait. Mr. Comey wanted an analysis centered on actual interrogations in an effort to limit the type and combination of techniques that would be permissible, according to someone familiar with his thinking. "I told him the people who were applying pressure now would not be there when the [expletive] hit the fan," Mr. Comey wrote in another e-mail message. "It would be Alberto Gonzales in the bull's-eye. I told him it was my job to protect the department and the A.G. and that I could not agree to this because it was wrong. I told him it could be made right in a week, which was a blink of an eye, and that nobody would understand at a hearing three years from now why we didn't take that week." * Miami Herald -- April 30, 2009 CRITIC OF DETAINEE POLICY TAKES A TOP JOB AT PENTAGON by Carol Rosenberg http://www.miamiherald.com/news/americas/guantanamo/story/1024992.html The Obama administration has chosen a lawyer and Iraq War veteran who has denounced U.S. detention policy to direct detainee affairs at the Department of Defense. Until starting at the Pentagon this week, Phillip E. Carter, 33, was an associate at New York's Park Avenue law firm McKenna Long & Aldridge. He specialized in government contracting and national security regulation. SECURITY BLOG A former Army captain, he also blogged on national security issues at a Washington Post website, Intel Dump. In 2005-06, he served in Iraq with the Army's 101st Airborne Division as an advisor to the Iraqi police. On his return, he shared some lessons he learned in a radio interview aired on National Public Radio. One tip: "Diplomacy is more important than force," he said. "Force creates more enemies than it removes. For every one insurgent you kill you create maybe 10 or 20 Iraqis with blood debts against the U.S." Carter left the Army after nine years in both active duty and as a reservist with military police and civil affairs units. In October 2004, when the Pentagon said intelligence indicated that some former Guantanamo detainees had "returned to the battlefield," Carter blamed policy "blowback" from a White House decision to ``shred the Geneva Conventions." 'HAPHAZARD' POLICIES "It hardly takes an expert to say that the way to win the war on terrorism is not to create more of it," he wrote in a commentary published on Slate.com. "But the haphazard, extralegal, credulous policies at Guantanamo have done just that." His new post -- deputy assistant secretary of defense for detainee affairs -- was created by the Bush administration to oversee and develop detention policies after the public saw leaked photos of guards brutalizing detainees at Abu Ghraib, Iraq. Three appointees held the job during the Bush administration: Matthew Waxman, Charles "Cully" Stimson and Sandra Hodgkinson. It's a civilian post, approximate in rank to a two-star general. Carter becomes the Pentagon's first detainee affairs executive since President Barack Obama put Attorney General Eric Holder in charge of emptying the prison camps in southeast Cuba by Jan. 22. Carter got his law degree in 2004 from the UCLA School of Law. Two years ago, he told an alumni magazine in an article called "Renaissance Soldier" that he was ending his Army career. "Once you've gone to combat," he said, "there is nothing left to prove to yourself or anyone else." He also said in the 2007 article that he criticized U.S. policy because "I felt that an honest dialogue about our means and ends in the war on terrorism was incredibly important. "With respect to some of the things happening at Guantanamo and Abu Ghraib, I saw the very soul of our military and our country at stake." * New York Times -- April 29, 2009 OFFICIAL DEFENDS SIGNING INTERROGATION MEMOS by Neil A. Lewis http://www.nytimes.com/2009/04/29/us/politics/29bybee.html WASHINGTON -- Judge Jay S. Bybee broke his silence on Tuesday and defended the conclusions of legal memorandums he had signed as a Bush administration lawyer that allowed use of several coercive interrogation practices on suspected terrorists. Judge Bybee, who issued the memorandums as the head of the Office of Legal Counsel and was later nominated to the federal appeals court by President George W. Bush, said in a statement in response to questions from The New York Times that he continued to believe that the memorandums represented "a good-faith analysis of the law" that properly defined the thin line between harsh treatment and torture. As the head of the Office of Legal Counsel at the Justice Department, Mr. Bybee signed two memorandums in August 2002 that discussed the legal limits on American interrogators seeking to apply pressure on captured operatives of Al Qaeda. The two memorandums, which provided a basis for the use of techniques like waterboarding, sleep deprivation and isolation under certain restrictions, provoked a storm of controversy and a debate about whether Bush administration lawyers had provided legal cover for torture. Until recently, Judge Bybee had been a largely unseen figure in the debate. In contrast, John Yoo, his deputy at the Office of Legal Counsel, who is generally believed to have been the memorandums' principal author, has defended them regularly. But Judge Bybee has come under renewed attention. Some people have called for his impeachment, he is being investigated by the Justice Department on his professional standards, and he has even become estranged from friends. Judge Bybee said he was issuing a statement following reports that he had regrets over his role in the memorandums, including an article in The Washington Post on Saturday to that effect. Given the widespread criticism of the memorandums, he said he would have done some things differently, like clarifying and sharpening the analysis of some of his answers to help the public better understand the basis for his conclusions. But he said: "The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high- ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct." Other administration lawyers agreed with those conclusions, Judge Bybee said. "The legal question was and is difficult," he said. "And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law." Prof. Christopher L. Blakesley, a colleague on the law school faculty at the University of Nevada, Las Vegas, said that after the first memorandum was released, he was unable to restrain himself from expressing disagreement at a 2004 dinner at a restaurant that included their wives. "I asked him how he could sign such an awful thing," Professor Blakesley recalled in an interview. He said the judge replied that he could not talk about the matter. The dinner proceeded awkwardly, Professor Blakesley said, and they have not spoken since. Professor Blakesley said that while he liked Judge Bybee, "he has some basic flaws including being very naïve about leaders." "He has too much respect for authority and will avoid a confrontation no matter what," the professor continued. In March 2004, before the first memorandum was disclosed, Judge Bybee spoke to about two dozen law clerks at the federal courthouse in Pasadena, Calif. It was part of a program in which judges discussed their earlier careers, and some of the clerks present said Judge Bybee talked about his time in the Bush Justice Department. Two of the clerks recall his saying that much of the work was dull but that some concerned matters "so awful, so terrible, so radioactive" he doubted that the administration would ever disclose it. Tuan Samahon, a professor at the U.N.L.V. law school who was a clerk to Judge Bybee in his first year on the bench, said he was initially puzzled by those comments but understood a few weeks later when the first of the memorandums was made public. Professor Samahon said he interpreted Judge Bybee's remark to "refer to the nature of the advice sought and not his office's work product." Another clerk at the luncheon, Nina Rabin, who now runs an immigration clinic at the University of Arizona, said she found Judge Bybee's remarks troubling because he suggested that his role as a lawyer could be divorced from whatever policy was being pursued. "He definitely offered a view that was sanitized," she said, "and I thought that was disingenuous in that it removed any responsibility on the part of the lawyer for what was happening." In a reunion of law clerks last May at a Las Vegas restaurant, first reported by The Recorder, a California legal newspaper, Judge Bybee also spoke about his work at the Office of Legal Counsel, first saying he was proud of the work he had done as a judge and the help given him by his clerks. He then said, according to several witnesses, "I wish I could say that of the prior job I had." Judge Bybee, whose chambers are in Las Vegas, is generally well-regarded by his colleagues on the United States Court of Appeals for the Ninth Circuit, which spans several Western states. Judge Betty Fletcher, a member of the court for 30 years, said in a statement: "He is a moderate conservative, very bright and always attentive to the record and the applicable law. I have not talked to other judges about his memo on torture, but to me it seems completely out of character and inexplicable that he would have signed such a document." * Washington Post -- April 25, 2009 AMID OUTCRY ON MEMO, SIGNER'S PRIVATE REGRET Friends Say Judge Wasn't Proud of Outcome By Karl Vick http://www.washingtonpost.com/wp-dyn/content/ article/2009/04/24/AR2009042403888_pf.html LAS VEGAS -- On a Saturday night in May last year, Jay S. Bybee hosted dinner for 35 at a Las Vegas restaurant. The young people seated around him had served as his law clerks in the U.S. Court of Appeals for the 9th Circuit, the post Bybee had assumed after two turbulent years at the Justice Department, where as head of the Office of Legal Counsel he signed the legal justifications for harsh interrogations that have become known as the "torture memos." Five years along in his new life as a federal judge, Bybee gathered the lawyers and their dates for a reunion, telling them he was proud of the legal work they had together produced. And then, according to two of his guests, Bybee added that he wished he could say the same about his previous position. It was, in the private room of a public restaurant, the kind of joyless judgment that some friends and associates say the jurist arrived at well before the public release of four additional memos last week and the resulting uproar that has engulfed Washington. One of the documents, dated Aug. 1, 2002, offered a helpfully narrow definition of torture to the CIA and soon became known as the "Bybee memo," because it bore his signature. "I've heard him express regret at the contents of the memo," said a fellow legal scholar and longtime friend, who spoke on the condition of anonymity while offering remarks that might appear as "piling on." "I've heard him express regret that the memo was misused. I've heard him express regret at the lack of context -- of the enormous pressure and the enormous time pressure that he was under. And anyone would have regrets simply because of the notoriety." That notoriety worsened this week as the documents -- detailing the acceptable application of waterboarding, "walling," sleep deprivation and other procedures the Bush administration called "enhanced interrogation methods" -- prompted calls from human rights advocates and other critics for criminal investigations of the government lawyers who generated them. Of the three former Justice Department lawyers associated with the memos, the public's attention has focused particularly harshly on Bybee because of his position as a sitting federal judge; John C. Yoo, who largely wrote the Bybee memo, returned to academic life, and Steven G. Bradbury, who signed three memos, resumed private practice at the end of the Bush administration. Democratic lawmakers, human rights groups and others have called for Congress to impeach Bybee, complaining that his 2003 Senate confirmation came more than a year before his role in the memos was known. "If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed," said Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), adding that "the decent and honorable thing for him to do would be to resign." Democrats blocked the nomination of former Defense Department general counsel William J. Haynes II to the Court of Appeals for the 4th Circuit because of his role in supporting aggressive interrogations of military detainees. Haynes withdrew his nomination in 2007. The Justice Department withdrew the memos in the closing days of the Bush administration, and as its Office of Professional Responsibility investigates their origin -- and Congress, the American Bar Association and the United Nations mull inquiries -- Bybee is represented by Maureen E. Mahoney, a star litigator at Latham & Watkins. The aura of regret described by Bybee's friends and associates stands in contrast to the demeanor of Yoo, who served under Bybee and has maintained both a public profile and the fearless confidence that informed the memos. "Al-Qaeda in the months after 9/11 was going to carry out follow-on attacks on our country and its citizens," Yoo said Tuesday at a conference at Chapman University, the Orange, Calif., campus where he is teaching this spring. Bybee left the issue behind in 2003, returning to the gated suburban Las Vegas subdivision where he lives with his wife and children. He has said nothing publicly about the documents, a silence associates attributed to the restrictions on a sitting appellate judge, the possible advice of counsel and his own manner. "Judge Bybee tends to be a very private person, even when he's not in the newspapers," said Ann S. Jarrell, law librarian in the downtown U.S. courthouse where he keeps his chambers. Neither Bybee nor Mahoney would comment for this article. Still, in the years since the original Bybee memo was made public, his misgivings appeared evident to some in his immediate circle. "On the primary memo, that legitimated and defined torture, he just felt it got away from him," said the fellow scholar. "What I understand that to mean is, any lawyer, when he or she is writing about something very complicated, very layered, sometimes you can get it all out there and if you're not careful, you end up in a place you never intended to go. I think for someone like Jay, who's a formalist and a textualist, that's a particular danger." Tuan Samahon, a former clerk who recalled Bybee's remarks at the reunion dinner, said in an e-mail that the judge defended the legal reasoning behind the memos but not the policy decision. Bybee was disappointed by what was done to prisoners, saying that "the spirit of liberty has left the republic," Samahon said. "Jay would be the sort of lawyer who would say, 'Look, I'll give you the legal advice, but it's up to someone else to make the policy decision whether you implement it,' " said Randall Guynn, who roomed with Bybee at Brigham Young University and remains close. Jameel Jaffer, director of the ACLU's National Security Project, which filed a freedom-of-information request regarding the latest memos, said any distinction Bybee may make between the logic of the memos and their application in secret prisons is theoretical at best. "I don't think the August 2002 memos reflect serious attempts to grapple in good faith with the law," Jaffer said. "These are documents that are meant to justify predetermined ends. They're not objective legal memos at all." Neither Guynn nor his brother, Steve, who also roomed with Bybee, recalled the judge distancing himself from the memos. But in the years since the first memo became public, Bybee left that sense with some. "I got the impression that he was not pleased with that bit of scholarship," said an associate who asked not be identified sharing private conversations. "I don't know that he 'owned it.' . . . The way he put it was: He was head of the OLC, and it was written, and he was not pleased with it." "But he signed it," said Chris Blakesley, a friend and fellow professor at the University of Nevada at Las Vegas Boyd School of Law who was outraged by the memo, which was leaked in May 2004. "The very evening it came out, we were going to dinner, and I told him how awful it was and I hoped he got a chance to repudiate it," Blakesley said. "He didn't say very much, and it was kind of awkward because our families were there." "Getting to the personal side of him, my sense is he would love to repudiate them all," Blakesley said. "Which gets to: Why'd you sign it?" Bybee had worked in Washington before. During the 1980s he was in the civil and legal policy divisions at the Justice Department, then served as associate White House counsel under President George H.W. Bush. During the Clinton years, he went from Louisiana State to UNLV, whose law school was so new it was located in an old elementary school across Tropicana Avenue. Through the thin walls of the annex, constitutional law specialist Tom McAffee would hear Bybee working the phones. But he struck none of his colleagues as an ideologue. "I have colleagues with reputations as indoctrinators," said McAffee, who has known Bybee 30 years and co-authored a book with him on the Ninth and 10th amendments. "Bybee was the opposite end of the spectrum. He was more interested in getting people to think about things." Students enjoyed Bybee, voting him professor of the year in 2000. "He was 'The Great Professor,' " said Briant S. Platt, who worked as his research assistant and later clerk. "He was quite self-deprecating: 'You get a root beer float in me and I'm a lot of fun.' " Bybee still occasionally teaches a course at UNLV on separation of powers. "The whole idea that the Constitution is based on a kind of wariness of mankind's tendency to grab power, that is an idea I got from Jay," McAffee said. "So the whole idea of uninhibited executive power, from him, does seem passing strange." Bybee's friends said he never sought the job at the Office of Legal Counsel. The reason he went back to Washington, Guynn said, was to interview with then-White House counsel Alberto R. Gonzales for a slot that would be opening on the 9th Circuit when a judge retired. The opening was not yet there, however, so Gonzales asked, "Would you be willing to take a position at the OLC first?" Guynn said. Being unable to answer for what followed is "very frustrating," said Guynn, who spoke to Bybee before agreeing to be interviewed. "If they end up having hearings," he said, "they're going to have a very difficult time trying to square him with their judgments about the memo." [ Staff writer Ashley Surdin contributed to this report. ] * The Daily Beast -- April 22, 2009 OBAMA V. THE JUSTICE DEPARTMENT by Scott Horton http://www.thedailybeast.com/blogs-and-stories/2009-04-22/ obamas-about-face-on-prosecution/ On Sunday, White House Chief of Staff Rahm Emanuel, appearing on ABC's This Week, underscored that President Obama had promised that CIA agents who acted in reliance on Bush-era Justice Department memoranda approving since-repudiated torture techniques would not face criminal investigation or prosecution. Then he went one step further, stating "those who devised the policy, he believes that they were -- should not be prosecuted either." A few hours later, White House Press Secretary Robert Gibbs reiterated Emanuel's remarks as official policy. But during the course of the day on Tuesday the White House appeared suddenly to shift gears. President Obama, responding to a reporter's question, declared that he was not prejudging a possible criminal investigation or prosecution of "those who formulated those legal decisions" behind the interrogation methods. What happened? "[Rahm Emanuel] described it in a way that clearly suggested that political judgment was driving the entire process," one senior Justice official told me. "It was depressing and amateurish." Members of the White House press corps struggled to explain the shift, many of them suggesting that Obama was pandering to his political base. But the winds of change blew in from an address just down Pennsylvania Avenue. The Daily Beast has learned that senior Justice Department lawyers were "incensed" at the Emanuel and Gibbs statements, as one put it -- not because they disagreed with Obama's apparent opposition to an investigation and prosecution, but because the statements violated well-established rules separating political figures in the White House from decisions about active criminal cases. The statements were viewed as a frontal assault on the autonomy and independence of the criminal- justice system. "Emanuel got far ahead of the process and described it in a way that clearly suggested that political judgment was driving the entire process," one senior Justice official told me. "It was depressing and amateurish." Now the White House misstep may in fact be propelling the process in the opposite direction. Another Justice Department official observed, "The department is now in the process of making some very tough decisions about what to do with this extremely complex and difficult matter. Emanuel's statement was unfortunate, because now if the attorney general decides against appointing a special prosecutor, people are going to believe that this was a politically dictated decision. The only clear way out of this bind may now be to do what the critics suggest and appoint a special prosecutor." Demands for the appointment of a special prosecutor have been proliferating in recent days following the release of the torture memoranda on April 16. The demand for accountability gained an additional influential voice on Tuesday with a statement issued by Senator Carl Levin (D-MI), chairman of the Armed Services Committee. "I have recommended to Attorney General Holder," he said, "that he select a distinguished individual or individuals -- either inside or outside the Justice Department, such as retired federal judges -- to look at the volumes of evidence relating to treatment of detainees, including evidence in the Senate Armed Services Committee's report, and to recommend what steps, if any, should be taken to establish accountability of high-level officials -- including lawyers." Levin justifies the call for a special prosecutor on the grounds that the inquiry will inevitably need to focus on internal dealings inside the Bush Justice Department's Office of Legal Counsel that prepared the torture memos, the Criminal Division, and the attorney general's office. No currently serving prosecutor would have the required measure of detachment to handle such an investigation. One of Holder's priorities since arriving at Justice has been bolstering the department's tarnished reputation as an independent law-enforcement agency free of political influence. During the Bush years, the department was shaken by allegations that prosecutions were brought or dropped as a result of pressure from the White House. A special prosecutor is now completing an investigation of allegations of political manipulation connected with the Bush administration's decision to dismiss nine U.S. attorneys who were judged to be insufficiently zealous in pursuit of politically directed targets. Holder recently appointed the department's senior ethics expert, Marshall Jarrett, to head the Executive Office of U.S. Attorneys, as a response to these concerns. International developments also complicate the Justice Department's handling of the matter. In an interview with the Austrian newspaper Der Standard on Sunday, the United Nations Special Rapporteur on Torture Manfred Nowak sharply condemned reports that Obama had decided against an investigation of allegations of torture involving the CIA. "Obama has violated international law," Nowak stated, because the Convention Against Torture mandates a criminal inquiry be undertaken whenever there is credible evidence that torture occurred. International-law experts within the Justice Department recognize that Nowak's analysis is correct with respect to a criminal investigation, although they do not appear to share his view that a prosecution is mandated. They take the view that the Convention preserves the full prosecutorial discretion of a domestic prosecutor, who would be able to collect the available evidence and decide whether to prosecute on the basis of domestic law, including prosecutorial guidelines and factors such as how compelling the evidence is, the likely reaction of a jury, and the availability of affirmative defenses -- such as reliance on legal memoranda of the Justice Department. Still, they agree that the failure to investigate the public reports of torture is impossible to reconcile with the United States' obligations under the Torture Convention. Finally, the pending criminal case in Spain targeting the Bush Six -- former administration officials implicated in setting the torture policy -- adds another complexity. Spanish prosecutors, who opposed the prosecution of the case after the Spanish attorney general intervened in opposition, told State Department officials that the Spanish case would likely be suspended if the Justice Department were to take up an investigation. A decision by Holder to open a probe would therefore likely protect the Bush Six from prosecution overseas. On April 21, Levin declassified the Senate Armed Services Committee's exhaustive study of the treatment of detainees. The report lands a series of devastating blows on Bush administration claims since the Abu Ghraib scandal broke. It firmly links the abuses at Abu Ghraib to abusive interrogation practices that the administration introduced, specifically documenting how the techniques Rumsfeld approved for use at Guantanamo worked their way into the list of approved techniques in Afghanistan and Iraq as well. It ridicules Pentagon claims that the problems were the product of a "few rotten apples." "The record established by the committee's investigation shows that senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques," Senator Levin said. "Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses. As the committee report concluded, authorizations of aggressive interrogation techniques by senior officials resulted in abuse and conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody." Obama's initial statement that CIA agents involved in the Bush "enhanced interrogation techniques" program would not be investigated or prosecuted was taken at the Justice Department as pushing the boundaries of political involvement in criminal law. But the statement by Emanuel, seen as a distinctly political figure, was perceived at Justice as going beyond those boundaries, according to high Justice officials. Within Justice, if Holder follows the now well-articulated views of the president and his chief of staff, the fear is that the attorney general would be viewed as a political subordinate in the mold of Alberto Gonzales. Ironically, the White House pronouncements have contributed to the momentum for a special prosecutor. That development coincides with the congressional voices now being raised for such an appointment. [ Scott Horton is a law professor and writer on legal and national-security affairs for Harper's magazine, The American Lawyer, and other publications. ] * Washington Post -- April 24, 2009 IN OBAMA'S INNER CIRCLE, DEBATE OVER MEMOS' RELEASE WAS INTENSE Some Feared That a Partisan Outcry Could Obstruct Larger Agenda by R. Jeffrey Smith, Michael D. Shear and Walter Pincus http://www.washingtonpost.com/wp-dyn/content/ article/2009/04/23/AR2009042304718.html As President Obama met with top advisers on the evening of April 15, he faced one of the sharpest policy divides of his young administration. Five CIA directors -- including Leon E. Panetta and his four immediate predecessors -- and Obama's top counterterrorism adviser had expressed firm opposition to the release of interrogation details in four "top secret" memos in which Bush administration lawyers sanctioned harsh tactics. On the other side of the issue were Attorney General Eric H. Holder Jr., Director of National Intelligence Dennis C. Blair and White House counsel Gregory B. Craig, whose colleagues during the campaign recall him expressing enthusiasm for fixing U.S. detainee policy. Defense Secretary Robert M. Gates had said he supported the disclosures because he saw the information's release as inevitable and because the White House was willing to promise that CIA officers would not be prosecuted for any abuse. Joint Chiefs of Staff Chairman Mike Mullen sided with Gates. Seated in Chief of Staff Rahm Emanuel's West Wing office with about a dozen of his political, legal and security appointees, Obama requested a mini-debate in which one official was chosen to argue for releasing the memos and another was assigned to argue against doing so. When it ended, Obama dictated on the spot a draft of his announcement that the documents would be released, while most of the officials watched, according to an official who was present. The disclosure happened the next day. Obama's aides have told political allies that the last-minute conversation, which ended around 9:30 p.m., demonstrated the president's commitment to airing both sides of a debate that was particularly contentious. But it also reflected widespread angst inside the White House that a public airing and repudiation of the harsh interrogation techniques that the last administration sought to keep secret would spark a national security debate with conservatives that could undermine Obama's broader agenda. Several top aides had argued, for example, that the question of whether to release the memos should be put before a "truth commission," effectively postponing resolution of the issue for months. But Obama vetoed the idea on the grounds that it would create the divisive debate his closest advisers feared -- a viewpoint he reiterated at a meeting with lawmakers yesterday. Craig also argued persuasively, other officials said, that the federal judge in New York overseeing a lawsuit seeking the memos' release was unlikely to approve any significant delay. Now Obama is being lashed by former Bush appointees and is facing growing pressure to accept such a commission. Some liberal activist groups presented petitions with 250,000 signatures to Holder at a House hearing yesterday, asking him to appoint an independent prosecutor to investigate the originators of the interrogation tactics. Meanwhile, debate is swirling in Washington not only about the merits of the techniques but also about the wisdom of Obama's decision to exercise his unique authority to instantly transform the "top secret" documents into public ones. This account is based on interviews with more than a dozen officials, some of whom spoke on the condition of anonymity because they are not authorized to talk about the internal deliberations. Several Obama aides said the president's decision was in line with his frequent criticism during the campaign of President George W. Bush's policies on interrogations at secret prisons. On his second day in office, Obama banned the prisons and the tactics in an executive order. The aides also said they hope the memos' release will focus public attention on the coldness and sterility of the legal justifications for abusive techniques, with Obama telling reporters in the Oval Office on Tuesday that the documents demonstrate that the nation lost its "moral bearings" in the Bush years. A source familiar with White House views said Obama's advisers are further convinced that letting the public know exactly what the past administration sanctioned will undermine what they see as former vice president Richard B. Cheney's effort to "box Obama in" by claiming that the executive order heightened the risk of a terrorist attack. Officials say the process of rolling back the controversial policy began shortly before Obama took office, when the president-elect dispatched half a dozen experts to the CIA for two days of secret briefings in the director's conference room. At the time, Obama was leaning toward adopting the Army Field Manual rules for intelligence interrogations but wanted to receive a broader perspective. He sent Craig; retired Gen. James L. Jones, now the national security adviser; foreign policy adviser Denis McDonough; former senators David L. Boren (D-Okla.) and Chuck Hagel (R-Neb.); and former CIA general counsel Jeffrey H. Smith to Langley. During the meetings, then-CIA Director Michael V. Hayden, his deputy Steve Kappes and about 20 other senior CIA officers sought to explain the agency's counterterrorism and rendition programs and to present the best case for retaining the option of reestablishing secret prisons and using aggressive interrogation methods, according to four of those present. Hayden emphasized that the agency had discarded most of the old programs, including the secret prisons, in 2006. The use of waterboarding ended in 2003, but Hayden said he wanted to keep the flexibility to utilize some of the other, less controversial techniques. Boren and Smith said the group was not convinced that whatever useful intelligence had been gleaned from the programs warranted keeping them as an option. "They said that they had produced valuable intelligence," Smith said. "We took them at their word." But the group's consensus was that "whatever utility it had at the outset . . . the secret prisons and enhanced techniques were no longer playing a useful role -- the costs outweighed the gains." He said those costs included obvious damage to the nation's values and identity, and problems with U.S. allies that strongly opposed the use of such methods. Boren, who chaired the Senate intelligence committee from 1987 to 1993 and is now president of the University of Oklahoma, said that attending the briefings was "one of the most deeply disturbing experiences I have had" and that "I wanted to take a bath when I heard it. I was ashamed of it." He said he concluded that "fear was used to justify the use of techniques that violate our values and weaken our intelligence" and that the agency did not prove those methods "are particularly effective at getting the truth." One of those present said that when asked, the CIA officers acknowledged that some foreign intelligence agencies had refused, for example, to share information about the location of terrorism suspects for fear of becoming implicated in any eventual torture of those suspects. Sources said that Jones shared these concerns and that, as a former military officer, he worried that any use of harsh interrogations by the United States could make it more likely that American soldiers in captivity would be subjected to similar tactics. The issue of releasing the Justice Department memos, which Craig first reviewed in December, became the focus of attention in mid-March, when the department's lawyers warned the White House of an April 2 federal court deadline that could force their hand. They told Craig they were prepared to offer a legal defense for keeping all or part of the memos secret but warned it would not be a strong case, in part because much of the information was included in a leaked report by the International Committee of the Red Cross summarizing detainee mistreatment. Craig and others in the White House were aware of the legal and political implications of both partial and full disclosure of the memos, and with the president they began consultations on how to proceed. Meanwhile, the Justice Department received an extension from the court. In a series of small gatherings over the next two weeks, before Obama went to Europe, he and his staff met with officials from the CIA, the Pentagon, the intelligence director's office, the State Department and the Joint Chiefs of Staff. A full National Security Council meeting and another gathering of principals followed, in which Cabinet members met in the White House situation room and were later joined by the president. Obama continued to huddle with aides on the topic during breaks in his European trip. A key last-minute debate emerged over whether to redact details of the interrogation methods while releasing the legal explanations underpinning the approvals. Panetta had no objection to disclosing the analysis but "strongly opposed declassification of their operational content," according to an intelligence official. His fear was that it would plant doubts in foreign governments about the U.S. ability to shroud collaborative activities, and he predicted -- accurately -- that it would lead to calls for more investigations. Gates told reporters yesterday that he "was quite concerned, as you might expect, with the potential backlash in the Middle East and in the theaters where we're involved in conflict, and that it might have a negative impact on our troops. All that said, you know, we just had a significant investigation release by the Senate Armed Services Committee. . . . And so there is a certain inevitability, I believe, that much of this will eventually come out; much has already come out. . . . I think all of us wrestled with it for quite some time, in terms of where we were on it." [ Staff writers Peter Finn, Joby Warrick and Ann Scott Tyson and staff researcher Julie Tate contributed to this report. ] * New York Times -- April 22, 2009 IN ADOPTING HARSH TACTICS, NO LOOK AT PAST USE by Scott Shane and Mark Mazzetti http://www.nytimes.com/2009/04/22/us/politics/22detain.html WASHINGTON -- The program began with Central Intelligence Agency leaders in the grip of an alluring idea: They could get tough in terrorist interrogations without risking legal trouble by adopting a set of methods used on Americans during military training. How could that be torture? In a series of high-level meetings in 2002, without a single dissent from cabinet members or lawmakers, the United States for the first time officially embraced the brutal methods of interrogation it had always condemned. This extraordinary consensus was possible, an examination by The New York Times shows, largely because no one involved -- not the top two CIA officials who were pushing the program, not the senior aides to President George W. Bush, not the leaders of the Senate and House Intelligence Committees -- investigated the gruesome origins of the techniques they were approving with little debate. According to several former top officials involved in the discussions seven years ago, they did not know that the military training program, called SERE, for Survival, Evasion, Resistance and Escape, had been created decades earlier to give American pilots and soldiers a sample of the torture methods used by Communists in the Korean War, methods that had wrung false confessions from Americans. Even George J. Tenet, the CIA director who insisted that the agency had thoroughly researched its proposal and pressed it on other officials, did not examine the history of the most shocking method, the near-drowning technique known as waterboarding. The top officials he briefed did not learn that waterboarding had been prosecuted by the United States in war-crimes trials after World War II and was a well-documented favorite of despotic governments since the Spanish Inquisition; one waterboard used under Pol Pot was even on display at the genocide museum in Cambodia. They did not know that some veteran trainers from the SERE program itself had warned in internal memorandums that, morality aside, the methods were ineffective. Nor were most of the officials aware that the former military psychologist who played a central role in persuading CIA officials to use the harsh methods had never conducted a real interrogation, or that the Justice Department lawyer most responsible for declaring the methods legal had idiosyncratic ideas that even the Bush Justice Department would later renounce. The process was "a perfect storm of ignorance and enthusiasm," a former CIA official said. Today, asked how it happened, Bush administration officials are finger-pointing. Some blame the CIA, while some former agency officials blame the Justice Department or the White House. Philip D. Zelikow, who worked on interrogation issues as counselor to Secretary of State Condoleezza Rice in 2005 and 2006, said the flawed decision-making badly served Mr. Bush and the country. "Competent staff work could have quickly canvassed relevant history, insights from the best law enforcement and military interrogators, and lessons from the painful British and Israeli experience," Mr. Zelikow said. "Especially in a time of great stress, walking into this minefield, the president was entitled to get the most thoughtful and searching analysis our government could muster." After years of recriminations about torture and American values, Bush administration officials say it is easy to second-guess the decisions of 2002, when they feared that a new attack from Al Qaeda could come any moment. If they shunned interrogation methods some thought might work, and an undetected bomb or bioweapon cost thousands of lives, where would the moral compass point today? It is a question that still haunts some officials. Others say that if they had known the full history of the interrogation methods or been able to anticipate how the issue would explode, they would have advised against using them. This account is based on interviews with more than two dozen current and former senior officials of the CIA, White House, Justice Department and Congress. Nearly all, citing the possibility of future investigations, shared their recollections of the internal discussions of a classified program only on condition of anonymity. Leaked to the news media months after they were first used, the CIA's interrogation methods would darken the country's reputation, blur the moral distinction between terrorists and the Americans who hunted them, bring broad condemnation from Western allies and become a ready-made defense for governments accused of torture. The response has only intensified since Justice Department legal memos released last week showed that two prisoners were waterboarded 266 times and that CIA interrogators were ordered to waterboard one of the captives despite their belief that he had no more information to divulge. But according to many Bush administration officials, including former Vice President Dick Cheney and some intelligence officers who are critics of the coercive methods, the CIA program would also produce an invaluable trove of information on Al Qaeda, including leads on the whereabouts of important operatives and on terror schemes discussed by Al Qaeda. Whether the same information could have been acquired using the traditional, noncoercive methods that the Federal Bureau of Investigation and the military have long used is impossible to say, and former Bush administration officials say they did not have the luxury of time to develop a more patient approach, given that they had intelligence warnings of further attacks. Michael V. Hayden, who served as CIA director for the last two years of the Bush administration, devoted part of his last press briefing in January to defending the CIA program. "It worked," Mr. Hayden insisted. "I have said to all who will listen that the agency did none of this out of enthusiasm," he said. "It did it out of duty. It did it with the best legal advice it had." A Program Takes Shape When Mr. Bush assigned the CIA with the task of questioning high-level Qaeda captives in late 2001, the agency had almost no experience interrogating the kind of hostile prisoners it soon expected to hold. It had dozens of psychiatrists, psychologists, polygraphists and operations officers who had practiced the arts of eliciting information and assessing truthfulness. Their targets, however, were not usually terrorists, but foreigners offering to spy for the United States or CIA employees suspected of misdeeds. Agency officials, led by Mr. Tenet, sought interrogation advice from other countries. And, fatefully, they contacted the military unit that runs the SERE training program, the Joint Personnel Recovery Agency, which gives American pilots, special operations troops and others a sample of the brutal interrogation methods they might face as prisoners of war. Mr. Tenet declined to be interviewed. By late 2001, the agency had contracted with James E. Mitchell, a psychologist with the SERE program who had monitored many mock interrogations but had never conducted any real ones, according to colleagues. He was known for his belief that a psychological concept called "learned helplessness" was crucial to successful interrogation. Martin Seligman, a prominent professor of psychology at the University of Pennsylvania who had developed the concept, said in an interview that he was puzzled by Dr. Mitchell's notion that learned helplessness was relevant to interrogation. "I think helplessness would make someone more dependent, less defiant and more compliant," Dr. Seligman said, "but I do not think it would lead reliably to more truth-telling." Still, forceful and brainy, Dr. Mitchell, who declined to comment for this article, became a persuasive player in high-level agency discussions about the best way to interrogate Qaeda prisoners. Eventually, along with another former SERE psychologist, Bruce Jessen, Dr. Mitchell helped persuade CIA officials that Qaeda members were fundamentally different from the myriad personalities the agency routinely dealt with. "Jim believed that people of this ilk would confess for only one reason: sheer terror," said one CIA official who had discussed the matter with Dr. Mitchell. Overwhelmed with reports of potential threats and anguished that the agency had failed to stop the Sept. 11 attacks, Mr. Tenet and his top aides did not probe deeply into the prescription Dr. Mitchell so confidently presented: using the SERE tactics on Qaeda prisoners. A little research on the origin of those methods would have given reason for doubt. Government studies in the 1950s found that Chinese Communist interrogators had produced false confessions from captured American pilots not with some kind of sinister "brainwashing" but with crude tactics: shackling the Americans to force them to stand for hours, keeping them in cold cells, disrupting their sleep and limiting access to food and hygiene. "The Communists do not look upon these assaults as ‘torture,' " one 1956 study concluded. "But all of them produce great discomfort, and lead to serious disturbances of many bodily processes; there is no reason to differentiate them from any other form of torture." Worse, the study found that under such abusive treatment, a prisoner became "malleable and suggestible, and in some instances he may confabulate." In late 2001, about a half-dozen SERE trainers, according to a report released Tuesday night by the Senate Armed Services Committee, began raising stark warning about plans by both the military and the CIA to use the SERE methods in interrogations. In December 2001, Lt. Col. Daniel J. Baumgartner of the Air Force, who oversaw SERE training, cautioned in one memo that physical pressure was "less reliable" than other interrogation methods, could backfire by increasing a prisoner's resistance and would have an "intolerable public and political backlash when discovered." But his memo went to the Defense Department, not the CIA One former senior intelligence official who played an important role in approving the interrogation methods said he had no idea of the origins and history of the SERE program when the CIA started it in 2002. "The agency was counting on the Justice Department to fully explore all the factors contributing to a judgment about legality, including the surrounding history and context," the official said. But it was the CIA that was proposing the methods, and John Yoo, the Justice Department official who was the principal author of a secret August 2002 memorandum that authorized the interrogation program, was mostly interested in making a case that the president's wartime powers allowed for the harsh tactics. A Persuasive Case After the March 28, 2002, capture in Pakistan of the Qaeda operative Abu Zubaydah -- the CIA's first big catch after Sept. 11 -- Mr. Tenet told Ms. Rice, then the national security adviser, he wanted to discuss interrogation, several former officials said. At a series of small-group and individual briefings attended by Mr. Bush, Mr. Cheney, Ms. Rice and Attorney General John Ashcroft, Mr. Tenet and his deputy, John McLaughlin, laid out their case. They made a persuasive duo, former officials who heard their pitch recalled. Mr. Tenet, an extroverted former Congressional staff member, was given to forceful language about the threat from Al Qaeda, which he said might well have had operations under way involving biological, radiological or even nuclear weapons. Mr. McLaughlin, a career intelligence analyst, was low-key and cerebral, and some White House officials said they found his support for the methods reassuring. In the briefings, Mr. Tenet said that after extensive research, the agency believed that only the methods he described -- which he said had been used on thousands of American trainees -- could extract the details of plots from hardened Qaeda fanatics. "It was described as a program that was safe and necessary, that would be closely monitored by medical personnel," a former senior official recalled. "And it was very much in the context of the threat streams that were just eye-popping at the time." Mr. Tenet's descriptions of each proposed interrogation method was so clinical and specific that at one briefing Mr. Ashcroft objected, saying that cabinet officials should approve broad outlines of important policies, not the fine details, according to someone present. The attorney general later complained that he thought Mr. Tenet was looking for cover in case controversy erupted, the person said. Ms. Rice insisted that Mr. Ashcroft not just pass along the conclusions of his Office of Legal Counsel, where Mr. Yoo worked, but give his personal assurance that the methods were legal under domestic and international law. He did. The CIA then gave individual briefings to the secretary of defense, Donald H. Rumsfeld, and the secretary of state, Colin L. Powell. Neither objected, several former officials said. Mr. Cheney, whose top legal adviser, David S. Addington, was closely consulting with Mr. Yoo about legal justification, strongly endorsed the program. Mr. Bush also gave his approval, though what details were shared with him is not known. With that, the CIA had the full support of the White House to begin its harshest interrogations. Mr. Bush and Mr. Cheney have never publicly second-guessed their decision. Though some former officials expressed regret that such a momentous decision was made so quickly without vital information or robust debate, none were willing to be quoted by name. There was one more check on intelligence programs, one designed in the 1970s to make sure independent observers kept an eye on spy agencies: Congress. The Senate and House Intelligence Committees had been created in the mid-1970s to prevent any repeat of the CIA abuses unearthed by the Senate's Church Committee. As was common with the most secret programs, the CIA chose not to brief the entire committees about the interrogation methods but only the so-called Gang of Four -- the top Republican and Democrat on the Senate and House committees. The rest of the committee members would be fully briefed only in 2006. The 2002 Gang of Four briefings left a hodgepodge of contradictory recollections that, to some Congressional staff members, reveal a dysfunctional oversight system. Without full staff support, few lawmakers are equipped to make difficult legal and policy judgments about secret programs, critics say. Representative Nancy Pelosi of California, who in 2002 was the ranking Democrat on the House committee, has said in public statements that she recalls being briefed on the methods, including waterboarding. She insists, however, that the lawmakers were told only that the CIA believed the methods were legal -- not that they were going to be used. By contrast, the ranking Republican on the House committee at the time, Porter J. Goss of Florida, who later served as CIA director, recalls a clear message that the methods would be used. "We were briefed, and we certainly understood what CIA was doing," Mr. Goss said in an interview. "Not only was there no objection, there was actually concern about whether the agency was doing enough." Senator Bob Graham, Democrat of Florida, who was committee chairman in 2002, said in an interview that he did not recall ever being briefed on the methods, though government officials with access to records say all four committee leaders received multiple briefings. Senator Richard C. Shelby of Alabama, the senior Republican on the committee, declined to discuss the briefings. Vicki Divoll, general counsel of the Senate Intelligence Committee in 2002 and a former CIA lawyer, would have been a logical choice to advise senators on the legal status of the interrogation methods. But because of the restricted briefings, Ms. Divoll learned about them only years later from news media accounts. Ms. Divoll, who now teaches government at the United States Naval Academy, said the interrogation issue revealed the perils of such restricted briefings. "The very programs that are among the most risky and controversial, and that therefore should get the greatest congressional oversight," she said, "in fact get the least." * Newsweek -- April 21, 2009 SANCTIONED DEGRADATION A new Senate report says Bush officials quickly abandoned 'humane' interrogation techniques. by Michael Isikoff http://www.newsweek.com/id/194846 When the U.S. military began sending terror suspects to Guantanamo in 2002, President Bush proclaimed that it was unwavering U.S. policy that they would be treated "humanely." But according to a report made available to NEWSWEEK and other organizations, internal Defense Department memos show that U.S. interrogators quickly strayed from that approach, devising elaborate plans to break down the resistance of two high-value detainees by stripping them and forcing them "to bark and perform dog tricks." These techniques were derived in part from classified U.S. military training slides that recommended subjecting detainees to "religious disgrace" and a process of "degradation" that included addressing them as though they were "an animal," the memos show. The memos, which relate to the interrogations of Mohammed al Khatani and Mohammedou Wali Slahi, are contained in a newly declassified Senate Armed Services Committee report to be released Wednesday by its chairman, Democratic Sen. Carl Levin. While the basic outlines of these interrogations were previously known, the report provides new details and will likely add fresh momentum to calls for a "truth commission" or similar Justice Department investigation of U.S. interrogation practices -- both of which President Obama suggested for the first time Tuesday that he was willing to support. The report, an advanced copy of which was provided to several news organizations, draws on newly declassified documents that Levin says bolsters his principal message: That the abuses at Iraq's Abu Ghraib prison and Guantanamo were not caused by "a few bad apples," as Bush administration officials repeatedly asserted. Instead, Levin said in a statement Tuesday, it was the product of high-level White House decisions to utilize a controversial series of "enhanced" and coercive interrogation techniques despite vociferous warnings by U.S. military lawyers and FBI officials that they could subject U.S. officials to prosecutions for torture and war crimes. These techniques, many of which were simultaneously adopted by interrogators working for the CIA, originated with psychologists who worked on the Defense Department's Survival, Evasion, Resistance and Escape (SERE) training program, which is intended to teach U.S. military personnel to resist interrogation tactics like those used by Chinese Communists during the Korean War. In the days after the 9/11 attacks, Levin's report states, these tactics were adapted by SERE psychologists for use against terror suspects. Training slides obtained by the senate panel show SERE instructors recommended such techniques as an "invasion of personal space by a female" and "stripping the individual, having the guards address the individual as if that person were an 'animal' or 'very low status' and controlling use of the latrine." According to the minutes of one October 2002 meeting attended by U.S. military officials at a visiting CIA lawyer at Guantanamo, also cited in the Levin report, other techniques discussed included subjecting detainees to waterboarding to simulate suffocation and identifying the phobias of prisoners -- such as "insects, snakes, claustrophobia" -- and using those fears against them. Those minutes and other documents quoted in the report shed new light on an Aug. 1, 2002, internal Justice Department memo, made public last week, describing CIA interrogators' plans to put another high-value detainee, Abu Zubaydah, into a dark, cramped "confinement box" and then unleash an insect inside -- in an effort to exploit his fears of insects. Some of the aggressive interrogation techniques covered in the various memos recently disclosed (including stress positions, hooding and sleep deprivation) were adopted and approved for use against Khatani, a Saudi native picked up in Afghanistan who U.S. officials have identified as a member of Al Qaeda and the 20th member of the 9/11 hijacker group. A Jan. 17, 2003, memo describing the techniques "used" against Khatani during the previous seven weeks cites "stripping, forced grooming, invasion of space by a female interrogator, treating Khatani like an animal, using a military working dog, and forcing him to pray to an idol shrine." While many of these techniques were documented in a 2005 Pentagon report, that document suggested that some of the methods -- such as subjecting Khatani to menacing, growling dogs -- had not been approved by high-level commanders at Guantanamo. But Levin's report includes quotes from an interview with Jane Dalton, the legal counsel to the Joint Chiefs of Staff, in which Dalton said that she and Major Gen. Geoffrey Miller, then the Guantanamo Commander, "discussed the use of dogs for interrogation purposes" in early November 2002. According to the report Dalton "said that the 'theory was that certain individuals are afraid of dogs' and that, while ... Miller talked about dogs being outside the interrogation room, they discussed the purpose of the dogs' presence during interrogations was that it 'exploits [the detainee's] fear.' " Miller, however, told the panel that he had removed the use of dogs from Khatani's interrogation plan and only approved their use "for security around the perimeter of Camp X-Ray," the area at Guantanamo where Khatani was being held. The use of these interrogation techniques triggered repeated and strong protests from military criminal investigators and FBI agents then at Guantanamo, several of which are cited in the report. "I ... am extremely concerned that the use of many of these techniques will open any military members up for potential criminal charges," wrote one colonel in a Nov. 14, 2002, e-mail to Miller. Another FBI special agent wrote a legal analysis on December 2, 2002, concluding that some of the techniques being used against Khatini were "examples of coercive interrogation techniques which may violate" the federal torture law and warned that "it is possible that those who employ these techniques may be indicted, prosecuted and possibly convicted if the trier of fact determines that the user had the requisite intent." Those warnings are especially noteworthy given that Susan Crawford, the convening authority for the U.S. military commissions, told the Washington Post last January that she refused to approve 9/11 conspiracy charges against Khatani because she concluded that he had been subjected to "torture" during the course of his interrogation. But Khatani wasn't the only Guantanamo detainee subjected to some of these same techniques, according to the Levin report. Another Jan. 16, 2002, memo outlining the interrogation plan for Slahi states that he would be questioned for up to 20 hours per day, have water poured on his head to keep him awake, and be subjected to the presence of dogs who would be made to bark in order to "agitate the detainee and provide shock value." The memo also describes techniques aimed at breaking down Slahi's ego, including ridiculing him, making him wear a mask and forcing him to wear signs ridiculing him as a "liar" or a "coward." Finally, the memo stated that interrogators would also force Slahi to wear a dog collar and instruct him to bark and perform dog tricks "to reduce the detainee's ego and establish control." [ Late Tuesday, a spokesman said the Defense Department would have no comment on the report until Wednesday. ] * Newsweek -- April 3, 2009 "HOLY HELL" OVER TORTURE MEMOS Attorney General Eric Holder wants to release classified Bush-era interrogation memos. But U.S. intel officials are fiercely lobbying the White House to block him from moving forward. by Michael Isikoff http://www.newsweek.com/id/192314 A fierce internal battle within the White House over the disclosure of internal Justice Department interrogation memos is shaping up as a major test of the Obama administration's commitment to opening up government files about Bush-era counterterrorism policy. As reported by NEWSWEEK, the White House last month had accepted a recommendation from Attorney General Eric Holder to declassify and publicly release three 2005 memos that graphically describe harsh interrogation techniques approved for the CIA to use against Al Qaeda suspects. But after the story, U.S. intelligence officials, led by senior national-security aide John Brennan, mounted an intense campaign to get the decision reversed, according to a senior administration official familiar with the debate. "Holy hell has broken loose over this," said the official, who asked not to be identified because of political sensitivities. Brennan is a former senior CIA official who was once considered by Obama for agency director but withdrew his name late last year after public criticism that he was too close to past officials involved in Bush administration decisions. Brennan, who now oversees intelligence issues at the National Security Council, argued that release of the memos could embarrass foreign intelligence services who cooperated with the CIA, either by participating in overseas "extraordinary renditions" of high-level detainees or housing them in overseas "black site" prisons. Brennan succeeded in persuading CIA Director Leon Panetta to become "engaged" in his efforts to block release, according to the senior official. Their joint arguments stalled plans to declassify the memos even though White House counsel Gregory Craig had already signed off on Holder's recommendation that they should be disclosed, according to an official and another government source familiar with the debate. No final decision has been made, and it is likely Obama will have to resolve the matter, according to the sources who spoke to NEWSWEEK. The continued internal debate explains the Justice Department's decision late Thursday to ask a federal judge for another two-week delay (until April 16) to file a final response in a Freedom of Information Act lawsuit by the American Civil Liberties Union seeking the release of the memos. The ACLU agreed to the two-week delay only after Justice officials represented that "high-level Government officials will consider for possible release" the three 2005 memos as well as another Aug. 1, 2002, memo on torture, that has long been sought by congressional committees and members of Congress, according to a motion filed by Justice lawyers with U.S. Judge Alvin K. Hellerstein in New York, who is overseeing the case. The 2002 memo, written by former Justice lawyers Jay Bybee and John Yoo, concluded that waterboarding and other harsh interrogation techniques could be used against Qaeda suspects without violating a federal law that prohibits torture. That memo was publicly withdrawn by the Justice Department in 2004 after its existence became publicly known and sparked a public controversy. But a new set of Justice lawyers -- led by Steven Bradbury, the newly installed chief of the department's Office of Legal Counsel -- later secretly authored additional memos in the spring of 2005 that essentially approved the same techniques, permitting the agency to barrage terror suspects with a combination of physical and psychological tactics, including head-slapping and frigid temperatures, according to a 2007 New York Times account. Those memos concluded that the harsh interrogation techniques used by the CIA would not violate Geneva Conventions restrictions on "cruel, inhuman and degrading" treatment of prisoners. The internal controversy over the memos is viewed as especially significant in light of the larger debate over whether there should be "accountability" for Bush-era tactics in the war on terror, including calls in Congress for a "truth commission" to investigate the matter. Until now, that debate has been cramped by the fact that most of the key material -- including those that describe precisely what tactics were used by the CIA in interrogations and what happened to high-level suspects in U.S. custody -- has been classified, making it at least theoretically a federal crime for officials with direct knowledge of these issues to publicly discuss them. If the Justice memos were to be declassified, it would free up a host of former officials to talk about precisely what took place during White House and Justice Department meetings over the issue of interrogations. If the White House were to overrule Holder and side with Brennan and Panetta, it could essentially shut the door on attempts to have a full public airing of these issues, according to human-rights activists, lawyers and others who have followed the debate. "It is our goal to release [Office of Legal Counsel] opinions to the maximum extent possible, while still protecting national security information and ensuring robust executive branch decision-making," said Tracy Schmaler, a Justice Department spokeswoman, in a statement. "We continue to review OLC memos for possible release and to consult with the departments and agencies to whom OLC provides legal advice about the appropriate path forward with respect to other memos." Jameel Jaffer, an ACLU lawyer who is overseeing the litigation, said he still remains hopeful that the Justice Department will release the memos later this month. He added, "This is arguably the most important test thus far of the Obama administration's commitment to transparency." * The New Yorker -- March 30, 2009 (April 6, 2009 issue) SYRIA CALLING The Obama Administration's chance to engage in a Middle East peace. by Seymour M. Hersh http://www.newyorker.com/reporting/2009/04/06/090406fa_fact_hersh When the Israelis' controversial twenty-two-day military campaign in Gaza ended, on January 18th, it also seemed to end the promising peace talks between Israel and Syria. The two countries had been engaged for almost a year in negotiations through intermediaries in Istanbul. Many complicated technical matters had been resolved, and there were agreements in principle on the normalization of diplomatic relations. The consensus, as an ambassador now serving in Tel Aviv put it, was that the two sides had been "a lot closer than you might think." At an Arab summit in Qatar in mid-January, however, Bashar Assad, the President of Syria, angrily declared that Israel's bombing of Gaza and the resulting civilian deaths showed that the Israelis spoke only "the language of blood." He called on the Arab world to boycott Israel, close any Israeli embassies in the region, and sever all "direct or indirect ties with Israel." Syria, Assad said, had ended its talks over the Golan Heights. Nonetheless, a few days after the Israeli ceasefire in Gaza, Assad said in an e- mail to me that although Israel was "doing everything possible to undermine the prospects for peace," he was still very interested in closing the deal. "We have to wait a little while to see how things will evolve and how the situation will change," Assad said. "We still believe that we need to conclude a serious dialogue to lead us to peace." American and foreign government officials, intelligence officers, diplomats, and politicians said in interviews that renewed Israeli-Syrian negotiations over the Golan Heights are now highly likely, despite Gaza and the elections in Israel in February, which left the Likud Party leader, Benjamin Netanyahu, at the head of a coalition that includes both the far right and Labor. Those talks would depend largely on America's willingness to act as the mediator, a role that could offer Barack Obama his first -- and perhaps best -- chance for engagement in the Middle East peace process. A senior Syrian official explained that Israel's failure to unseat Hamas from power in Gaza, despite the scale of the war, gave Assad enough political room to continue the negotiations without losing credibility in the Arab world. Assad also has the support of Arab leaders who are invested in the Israeli-Palestinian peace process. Sheikh Hamad bin Khalifa al-Thani,* the ruler of Qatar, said last month when I saw him in Doha that Assad must take any reasonable steps he can to keep the talks going. "Syria is eager to engage with the West," he said, "an eagerness that was never perceived by the Bush White House. Anything is possible, as long as peace is being pursued." A major change in American policy toward Syria is clearly under way. "The return of the Golan Heights is part of a broader strategy for peace in the Middle East that includes countering Iran's influence," Martin Indyk, a former American Ambassador to Israel, who is now the director of the Saban Center for Middle East Policy, at the Brookings Institution, said. "Syria is a strategic linchpin for dealing with Iran and the Palestinian issue. Don't forget, everything in the Middle East is connected, as Obama once said." A former American diplomat who has been involved in the Middle East peace process said, "There are a lot of people going back and forth to Damascus from Washington saying there is low-hanging fruit waiting for someone to harvest." A treaty between Syria and Israel "would be the start of a wide-reaching peace- implementation process that will unfold over time." He added, "The Syrians have been ready since the 1993 Oslo Accords to do a separate deal." The new Administration now has to conduct "due diligence": "Get an ambassador there, or a Presidential envoy. Talk to Bashar, and speak in specifics so you'll know whether or not you've actually got what you've asked for. If you're vague, don't be surprised if it comes back to bite you." Many Israelis and Americans involved in the process believe that a deal on the Golan Heights could be a way to isolate Iran, one of Syria's closest allies, and to moderate Syria's support for Hamas and for Hezbollah, the Lebanese Shiite group. Both Hamas and Hezbollah are listed as terrorist organizations by the U.S. State Department. There is a competing view: that Assad's ultimate goal is not to marginalize Iran but to bring it, too, into regional talks that involve America -- and perhaps Israel. In either scenario, Iran is a crucial factor motivating each side. These diplomatic possibilities were suggested by Senator John Kerry, of Massachusetts, the chairman of the Foreign Relations Committee, who met with Assad in Damascus in February -- his third visit since Assad took office, in 2000. "He wants to engage with the West," Kerry said in an interview in his Senate office. "Our latest conversation gave me a much greater sense that Assad is willing to do the things that he needs to do in order to change his relationship with the United States. He told me he's willing to engage positively with Iraq, and have direct discussions with Israel over the Golan Heights -- with Americans at the table. I will encourage the Administration to take him up on it. "Of course, Syria will not suddenly move against Iran," Kerry said. "But the Syrians will act in their best interest, as they did in their indirect negotiations with Israel with Turkey's assistance -- and over the objections of Iran." President Assad was full of confidence and was impatiently anticipating the new Administration in Washington when I spoke to him late last year in Damascus. Trained as an ophthalmologist, partly in London, he took over the Presidency in 2000, after the death of his father, Hafez Assad, who amassed enormous personal power in thirty years of brutal rule. Bashar had not expected a life as the Syrian leader -- his older brother, Basil, who was killed in an accident in 1994, had been groomed to replace their father. Bashar, thirty-four when he became President, was said to be a lesser figure than either of them. He has since consolidated his position -- both by modernizing the economy and by suppressing domestic opposition -- and, when we spoke, it was clear that he had come to relish the exercise of power. Assad said that if America's leaders "are seeking peace they have to deal with Syria and they have to deal with our rights, which is the Golan Heights." In the Six-Day War, in 1967, Israel seized the Golan Heights, about four hundred and fifty square miles of territory that is rich in Biblical history and, crucially, in water. It includes part of the Jordan River Valley and a plateau overlooking the river which extends to Mt. Hermon, in the north. Syria was left with no access to the Sea of Galilee and the upper Jordan River. Roughly twenty thousand Israeli settlers live there, and they have built towns, vineyards, and boutique hotels in its valleys and strategic heights. Assad said, "The land is not negotiable, and the Israelis know that we are not going to negotiate the line of 1967." But he suggested that compromises were possible. "We only demarcate the line," he said. "We negotiate the relations, the water, and everything else." Many who are close to the process assume that an Israeli-Syrian settlement would include reparations for the Israelis in the Golan Heights, and, for a time, the right of access to the land. Assad said, "You discuss everything after the peace and getting your land. Not before." If Israel wants a settlement that goes beyond the Golan Heights, Assad said, it will have to "deal with the core issue" -- the situation in the West Bank and Gaza -- "and not waste time talking about who is going to send arms to Hezbollah or Hamas. Wherever you have resistance in the region, they will have armaments somehow. It is very simple." He added, "Hezbollah is in Lebanon and Hamas is in Palestine. . . . If they want to solve the problem of Hezbollah, they have to deal with Lebanon. For Hamas, they have to deal with Gaza. For Iran, it is not part of the peace process anyway." Assad went on, "This peace is about peace between Syria and Israel." In his e-mail after the Gaza war, Assad emphasized that it was more than ever "essential that the United States play a prominent and active role in the peace process." What he needed, Assad said, was direct contact with Obama. A conference would not be enough: "It is most natural to want a meeting with President Obama." If the Netanyahu government is to trade land for peace, it needs to be assured of domestic political support -- and help from Washington. In September, 2007, Israel destroyed what it claimed was a potential Syrian nuclear-weapons reactor during a cross-border raid, an action that won the approval of the Israeli public. (Syria insisted there was no reactor on the site.) At the time, the two countries were already laying the groundwork for the indirect negotiations. In December, 2008, Ehud Olmert, who was then Prime Minister, flew to Ankara, Turkey, and conducted more than five hours of intense talks on the return of the Golan Heights, with the mediation of Prime Minister Recep Tayyip Erdogan, who was often in direct telephone contact with Bashar Assad. But Olmert's standing was tarnished, both inside Israel, by a series of criminal investigations that led to his resignation (he has denied any wrongdoing), and outside Israel, by the Gaza war, which began days after he left Ankara. Netanyahu's coalition government will include, as Foreign Minister, Avigdor Lieberman, the head of the Israel Beytenu Party, who has argued for a measure, aimed at Israeli-Arabs, requiring citizens to take loyalty oaths or forfeit many of their rights, and has rejected any land-for-peace agreement with Syria (though he is open to trading other territories); and, as Defense Minister, Ehud Barak, the Labor Party leader, who has consistently supported talks with Syria. Current opinion polls indicate that the majority of Israelis do not support a full withdrawal from the Golan Heights. Netanyahu himself -- in what was widely seen as a plea for votes -- declared two days before the elections that he would not return the Golan Heights. Daniel Levy, a senior fellow at the New America Foundation, who served on Israeli peace delegations in 1995 and 2001 and also as an adviser to Prime Minister Barak, said that Netanyahu "may have huge coalition problems, not least within his own Likud Party," and that he "may have to publicly disavow any land- for-peace agreement, given his political position. Can the Syrians swallow that? If they can't, it means that the only option left will be secret talks." Levy added, "Barak's appointment does not change the fundamental dynamics of the coalition, but it means that Bibi [Netanyahu] has a Defense Minister who will be on board for dealing with Syria, who wants to deal with Syria -- and who also will be on board for doing it in secret." Itamar Rabinovich, a former Israeli Ambassador to Washington, who was Israel's chief negotiator with Syria under Prime Minister Yitzhak Rabin and informally advises his government on Syrian issues, argued that the war in Gaza had not changed Israel's essential interest in a Golan Heights settlement: "Gaza is Gaza, and I say that Bashar Assad definitely wants to go ahead with the talks. And he may find a partner in Bibi Netanyahu. Bibi would prefer to make a deal with Syria rather than with the Palestinians." But if the talks are to proceed, Rabinovich said, "they will have to be transformed to direct negotiations." This would require the support and involvement of the Obama Administration. Rabinovich said that he thought Obama, like Netanyahu, "after weighing the pros and cons, will see a Golan Heights settlement as being more feasible" than a deal with the Palestinians. "The talks are serious, and there is a partner." The former American diplomat, who is an expert on the Golan Heights, said that it would take between three and five years to evacuate Israelis living there. "During that time, if there is a party moderating the agreement -- the U.S., perhaps -- it would be necessary for that party to stay engaged, to make sure that the process stays on course," he said. This factor may explain why Assad wants the U.S. involved. "The key point is that the signing of an agreement is just the beginning -- and third parties are needed to reinforce the agreement." Obama's Middle East strategy is still under review in the State Department and the National Security Council. The Administration has been distracted by the economic crisis, and impeded by the large number of key foreign- and domestic- policy positions yet to be filled. Obama's appointment of former Senator George Mitchell as his special envoy for Middle East diplomacy, on January 22nd, won widespread praise, but Mitchell has yet to visit Syria. Diplomatic contacts with Damascus were expanded in late February, and informal exchanges with Syria have already taken place. According to involved diplomats, the Administration's tone was one of dialogue and respect -- and not a series of demands. For negotiations to begin, the Syrians understood that Washington would no longer insist that Syria shut down the Hamas liaison office in Damascus and oust its political leader, Khaled Meshal. Syria, instead, will be asked to play a moderating role with the Hamas leadership, and urge a peaceful resolution of Hamas's ongoing disputes with Israel and the Palestinian Authority. The Syrians were also told that the Obama Administration was reëvaluating the extent of Syria's control over Hezbollah. (The White House did not respond to requests for comment.) The United States has been involved in negotiations over the Golan Heights before, notably those brokered by Bill Clinton in Shepherdstown, West Virginia, in 2000. Those talks, despite their last-minute collapse over border disputes, among other issues, provided the backbone for the recent indirect negotiations. Martin Indyk, who advised Clinton at Shepherdstown, said that those talks were about "territory for peace." Now, he said, "it's about territory for peace and strategic realignment." During the long campaign for the White House, Obama often criticized Syria for its links to terrorism, its "pursuit of weapons of mass destruction," and its interference in Lebanon, where Syria had troops until 2005 and still plays a political role. (Assad dismissed the criticisms in his talk with me: "We do not bet on speeches during the campaign.") But Obama said that he would be willing to sit down with Assad in the first year of his Presidency without preconditions. He also endorsed the Syrian peace talks with Israel. "We must never force Israel to the negotiating table, but neither should we ever block negotiations when Israel's leaders decide that they may serve Israeli interests," he said at the annual conference, last June, of the American Israel Public Affairs Committee (AIPAC). "As President, I will do whatever I can to help Israel succeed in these negotiations." The differences between Obama's Syria policies and those of the Administration of George W. Bush have attracted relatively little attention. In December, 2006, the Iraq Study Group called for direct talks with Syria. In a speech soon afterward, Bush explained why he disagreed. "I think it would be counterproductive at this point to sit down with the Syrians, because Syria knows exactly what it takes to get better relations," he said. The President then provided a list: stop its support for Hamas and Hezbollah; stop meddling in Lebanon; coöperate in the investigation of the murder, in 2005, of Rafik Hariri, Lebanon's former Prime Minister; and stop serving as "a transit way for suicide bombers heading into Iraq." (The Bush Administration accused Syria of failing to monitor its long border with Iraq, and, last October, staged a raid into Syria, killing eight people, one of whom was said to be a senior Al Qaeda in Mesopotamia operative. A huge number of Iraqi refugees have also fled to Syria, straining the economy.) Bush added dismissively, "When people go sit down with Bashar Assad, the President of Syria, he walks out and holds a press conference, and says, ‘Look how important I am. People are coming to see me; people think I'm vital.' " An official who served with the Bush Administration said that late last year the Administration thought it was unrealistic to engage Syria on the Golan Heights. "The Bush view was, if we support the talks, with no preconditions, what are we going to say to our supporters in Lebanon who are standing up to Hezbollah? ‘You stood up to Hezbollah' -- and where are we?" Assad noted late last year that the Bush White House did not "have to trust me, because they are not involved in peace anyway. . . .They created a lot of problems around the world and they exacerbated the situation in every hot spot [and] made the world more vulnerable to terrorism. This is the most important thing," he said. "Nobody can say the opposite." As the Bush era wound down, U.S. allies were making their own openings to Syria. In mid-November, David Miliband, the British Foreign Secretary, distressed the White House by flying to Damascus for a meeting with Assad. They agreed that Britain and Syria would establish a high-level exchange of intelligence. Vice- President Dick Cheney viewed the move by Britain -- "perfidious Albion," as he put it -- as "a stab in the back," according to a former senior intelligence official. In his e-mail, Assad praised the diplomatic efforts of former President Jimmy Carter. "Carter is most knowledgeable about the Middle East and he does not try to dictate or give sermons," Assad said. "He sincerely is trying to think creatively and find solutions that are outside the box." Carter's calls for engagement with Hamas have angered many in Israel and America. In "We Can Have Peace in the Holy Land," published in January, Carter described Syria as "a key factor in any overall regional peace." Last December, Carter visited Syria, and met not only with President Assad but with Khaled Meshal, the Hamas leader. A senior White House official confirmed that the Obama transition team had been informed in advance of Carter's trip to Syria, and that Carter met with Obama shortly before the Inauguration. The two men -- Obama was accompanied only by David Axelrod, the President's senior adviser, who helped arrange the meeting; and Carter by his wife, Rosalynn -- discussed the Middle East for an hour. Carter declined to discuss his meeting with Obama, but he did write in an e-mail that he hoped the new President "would pursue a wide-ranging dialogue as soon as possible with the Assad government." An understanding between Washington and Damascus, he said, "could set the stage for successful Israeli-Syrian talks." The Obama transition team also helped persuade Israel to end the bombing of Gaza and to withdraw its ground troops before the Inauguration. According to the former senior intelligence official, who has access to sensitive information, "Cheney began getting messages from the Israelis about pressure from Obama" when he was President-elect. Cheney, who worked closely with the Israeli leadership in the lead-up to the Gaza war, portrayed Obama to the Israelis as a "pro- Palestinian," who would not support their efforts (and, in private, disparaged Obama, referring to him at one point as someone who would "never make it in the major leagues"). But the Obama team let it be known that it would not object to the planned resupply of "smart bombs" and other high-tech ordnance that was already flowing to Israel. "It was Jones" -- retired Marine General James Jones, at the time designated to be the President's national-security adviser -- "who came up with the solution and told Obama, ‘You just can't tell the Israelis to get out.' " (General Jones said that he could not verify this account; Cheney's office declined to comment.) Syria's relationship with Iran will emerge as the crucial issue in the diplomatic reviews now under way in Washington. A settlement, the Israelis believe, would reduce Iran's regional standing and influence. "I'd love to be a fly on the wall when Bashar goes to Tehran and explains to the Supreme Leader that he wants to mediate a bilateral relationship with the United States," the former American diplomat said, referring to Ayatollah Ali Khamenei. An Israeli official acknowledged that his government had learned of "tensions between Syria and Iran in recent months." Before Gaza, he said, there had been a noticeable change in the Syrian tone during informal contacts -- "an element of openness, candor, and civility." He cautioned, however, "You can move diplomatically with the Syrians, but you cannot ignore Syria's major role in arming Hamas and Hezbollah, or the fact that it has intimate relations with Iran, whose nuclear program is still going forward." He added, with a smile, "No one in Israel is running out to buy a new suit for the peace ceremony on the White House lawn." Martin Indyk said, "If the White House engages with Syria, it immediately puts pressure on Iran, Hamas, and Hezbollah." He said that he had repeatedly sought, without success, to convince the Bush Administration that it was possible to draw Syria away from Iran. In his recent memoir, "Innocent Abroad," Indyk wrote, "There is a deep divergence between Iran and Syria, captured in the fact that at the same time as Iran's president threatens to wipe Israel off the map, his Syrian ally is attempting to make peace with Israel. . . . Should negotiations yield a peace agreement, it would likely cause the breakup of the Iranian-Syrian axis." When we spoke, he added, referring to Assad, "It will not be easy for him to break with Hezbollah, Hamas, and Iran, but he cannot get a peace deal unless he does. But, if he feels that things are moving in the Middle East, he will not want to be left behind." Thomas Dine, who served as the executive director of AIPAC in Washington for thirteen years, said, "You don't have to be Kissingerian to realize that this is the way to peel the onion from Iran." Dine went on, "Get what you can get and take one step at a time. The agenda is to get Syria to begin thinking about its relationships with Iran, Hamas, and Hezbollah." A Pentagon consultant said, "If we ever really took yes for an answer from Syria, the Iranians would go nuts." The official Syrian position toward Iran, which Assad repeated to me, is that Iran did not object to the Golan Heights talks, on the principle that any return of sovereign land was to be applauded: "They announced this publicly . . . and I went to Iran and I heard the same." But there is some evidence that the Syrians may be, in Dine's terms, reassessing the relationship. The senior Syrian official said that an opening to the West would bring the country increased tourism, trade, and investment, and a higher standard of living -- progress that would eventually make it less reliant on Iran. If Israel then attacked Iran, he asked, "what will Syria do?" His answer was that Syria wouldn't do more than condemn the attack. "What else could we do?" In an interview in Berlin, Joschka Fischer, the former German Foreign Minister, who has continued to closely monitor Middle Eastern affairs, argued that the Iranians would "have to make a public move" after a settlement. "Yes, they will react to an Israeli-Syria deal, because they do not want to be isolated, and do not want to lose their last ally to the West." In other words, serious regional diplomacy could be possible. However, Alastair Crooke, a former British intelligence officer who operated in the Middle East and later served as an adviser to the European Union and a staff member for a fact-finding committee on the Middle East headed by Mitchell, said that the new Administration should not assume that Bashar Assad could be separated easily from Iran, or persuaded to give up support for Hamas and Hezbollah. "Bashar now has enormous standing in the Arab world, and it comes from these pillars -- he was among the first to oppose the American war in Iraq and his continued support for Iran, Hezbollah, and Hamas," Crooke said. "He cannot trade the Golan Heights for peace with Israel, and cut off his allies. What Syria can do is offer its good standing and credentials to lead a comprehensive regional settlement." But, he said, "the Obama Administration is going to make it really painful for Syria. There will be no bouquets for Syria." He went on, "The real goal of Assad is not necessarily an agreement on the Golan but to begin to engage America and slice away the American demonization of his state." The changed political landscape in Israel would complicate this process for the Syrians. He said, "They're starting all these processes to break their isolation and change their strategy. It's going to be bloody difficult for them to manage this." Robert Pastor, a former National Security Council official who has visited Damascus with former President Carter, similarly said that he believed the Syrians had no intention of ending their relationship with Iran. "The Syrians want bilateral talks with Washington and they also want America to be involved in their talks with Israel on the Golan Heights," Pastor said. "They also believe their relationship with Iran could be of help to the Obama Administration. They believe they could be a bridge between Washington and Tehran." Khaled Meshal, the leader of Hamas, works in an office in a well-protected, tranquil residential area of Damascus. In recent years, he has met privately with Jewish leaders and Americans. Meshal is seen by Israel as a sponsor of suicide bombers and other terrorist activity. In 1997, he survived a botched assassination-by-poisoning attempt by Israeli intelligence which Netanyahu, then the Prime Minister, had ordered. Under pressure from Jordan and the U.S., the Israelis handed over the poison's antidote, saving Meshal's life. Speaking through a translator, Meshal said that he believed that the Iranians would not interfere with negotiations between Israel and Syria, although they were not enthusiastic about them. Meshal also said he doubted that Israel intended to return the Golan Heights to Syrian control. But, he said, "If we suppose that Israel is serious, we support the right of Syria to negotiate with Israel to attain its legitimate rights." Hamas's presence in Damascus had, he knew, been a contentious issue in Syria's relations with both the United States and Israel. "Bashar would never ask us to leave," he said. "There are some who believe that Hamas would react defensively to an agreement, because of our presence in Syria. But it does not make a difference where our offices are. We are a street movement and our real power is inside Palestine, and nothing can affect that. We are confident about Bashar Assad, and we would never risk being a burden to him. . . . We can move at any time, and move lightly. The Hamas movement will not work against the interests of any other country, and any agreement can be concluded, whether we like it or not. But, also, we don't want anyone to interfere in our affairs." Farouk al-Shara, the Vice-President of Syria, was, as Foreign Minister, his nation's chief negotiator at Shepherdstown. When he was asked whether Syria's relationship with Iran would change if the Golan Heights issue was resolved, he said, "Do you think a man only goes to bed with a woman he deeply loves?" Shara laughed, and added, "That's my answer to your question about Iran." There are other impediments to a new relationship between the United States and Syria, including the still unresolved question of who killed Rafik Hariri, the former Lebanese Prime Minister, who was assassinated in February, 2005. Years of investigation have produced no criminal charges. The Bush Administration suggested that the Syrians were at least indirectly responsible for Hariri's death -- he had been a sharp critic of Syria's involvement in Lebanon -- and it wasn't alone; Hariri's murder exacerbated tensions between Syria and France and Saudi Arabia. But the case is clearly less important to French President Nicolas Sarkozy than it was to his predecessor, Jacques Chirac, who was close to Hariri. ("This was personal for Chirac, and not political," Joschka Fischer said.) An adviser to the Saudi government said that King Abdullah did not accept Assad's assurances that he had nothing to do with the murder. But there has recently been a flurry of renewed diplomatic contacts between Damascus and Riyadh. One issue that may be a casualty of an Obama rapprochement with Syria is human rights. Syrians are still being jailed for speaking out against the policies of their government. Sarah Leah Whitson, the Middle East director for Human Rights Watch, said that Assad "has been offering fig leafs to the Americans for a long time and thinks if he makes nice in Lebanon and with Hamas and Hezbollah he will no longer be an outcast. We believe that no amount of diplomatic success will solve his internal problems." The authorities, Whitson said, are "going after ordinary Syrians -- like people chatting in cafés. Everyone is looking over their shoulder." Assad, in his interview with me, acknowledged, "We do not say that we are a democratic country. We do not say that we are perfect, but we are moving forward." And he focussed on what he had to offer. He said that he had a message for Obama: Syria, as a secular state, and the United States faced a common enemy in Al Qaeda and Islamic extremism. The Bush White House, he said, had viewed the fundamentalists as groups "that you should go and chase, and then you will accomplish your mission, as Bush says. It is not that simple. How do you deal with a state of mind? You can deal with it in many different ways -- except for the army." Speaking of Obama, he said in his e-mail, "We are happy that he has said that diplomacy -- and not war -- is the means of conducting international policy." Assad's goal in seeking to engage with America and Israel is clearly more far- reaching than merely to regain the Golan Heights. His ultimate aim appears to be to persuade Obama to abandon the Bush Administration's strategy of aligning America with the so-called "moderate" Arab Sunni states -- Egypt, Saudi Arabia, and Jordan -- in a coördinated front against Shiite Iran, Shiite Hezbollah, and Hamas. "Of course, the Iranians are nervous about the talks, because they don't fully trust the Syrians," Itamar Rabinovich said. "But the Assad family does not believe in taking chances -- they're very hard bargainers. They will try to get what they want without breaking fully from Iran, and they will tell us and Washington, ‘It's to your advantage not to isolate Iran.' " Rabinovich added, "Both Israel and the United States will insist on a change in Syria's relationship with Iran. This can only be worked out -- or not -- in head-to-head talks." The White House has tough diplomatic choices to make in the next few months. Assad has told the Obama Administration that his nation can ease the American withdrawal in Iraq. Syria also can help the U.S. engage with Iran, and the Iranians, in turn, could become an ally in neighboring Afghanistan, as the Obama Administration struggles to deal with the Taliban threat and its deepening involvement in that country -- and to maintain its long-standing commitment to the well-being of Israel. Each of these scenarios has potential downsides. Resolving all of them will be formidable, and will involve sophisticated and intelligent diplomacy -- the kind of diplomacy that disappeared during the past eight years, and that the Obama team has to prove it possesses. [ * Correction, March 30, 2009: The name is Sheikh Hamad bin Khalifa al-Thani, not Sheikh Hamid bin Khalifa al-Thani, as originally stated. ] * Washington Post -- March 29, 2009 DETAINEE'S HARSH TREATMENT FOILED NO PLOTS Waterboarding, Rough Interrogation of Abu Zubaida Produced False Leads, Officials Say by Peter Finn and Joby Warrick http://www.washingtonpost.com/wp-dyn/content/ article/2009/03/28/AR2009032802066.html When CIA officials subjected their first high-value captive, Abu Zubaida, to waterboarding and other harsh interrogation methods, they were convinced that they had in their custody an al-Qaeda leader who knew details of operations yet to be unleashed, and they were facing increasing pressure from the White House to get those secrets out of him. The methods succeeded in breaking him, and the stories he told of al-Qaeda terrorism plots sent CIA officers around the globe chasing leads. In the end, though, not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions, according to former senior government officials who closely followed the interrogations. Nearly all of the leads attained through the harsh measures quickly evaporated, while most of the useful information from Abu Zubaida -- chiefly names of al-Qaeda members and associates -- was obtained before waterboarding was introduced, they said. Moreover, within weeks of his capture, U.S. officials had gained evidence that made clear they had misjudged Abu Zubaida. President George W. Bush had publicly described him as "al-Qaeda's chief of operations," and other top officials called him a "trusted associate" of al-Qaeda leader Osama bin Laden and a major figure in the planning of the Sept. 11, 2001, terrorist attacks. None of that was accurate, the new evidence showed. Abu Zubaida was not even an official member of al-Qaeda, according to a portrait of the man that emerges from court documents and interviews with current and former intelligence, law enforcement and military sources. Rather, he was a "fixer" for radical Muslim ideologues, and he ended up working directly with al- Qaeda only after Sept. 11 -- and that was because the United States stood ready to invade Afghanistan. Abu Zubaida's case presents the Obama administration with one of its most difficult decisions as it reviews the files of the 241 detainees still held in the U.S. military prison at Guantanamo Bay, Cuba. Abu Zubaida -- a nom de guerre for the man born Zayn al-Abidin Muhammed Hussein -- was never charged in a military commission in Guantanamo Bay, but some U.S. officials are pushing to have him charged now with conspiracy. The Palestinian, 38 and now in captivity for more than seven years, had alleged links with Ahmed Ressam, an al-Qaeda member dubbed the "Millennium Bomber" for his plot to bomb Los Angeles International Airport on New Year's Eve 1999. Jordanian officials tied him to terrorist plots to attack a hotel and Christian holy sites in their country. And he was involved in discussions, after the Taliban government fell in Afghanistan, to strike back at the United States, including with attacks on American soil, according to law enforcement and military sources. Others in the U.S. government, including CIA officials, fear the consequences of taking a man into court who was waterboarded on largely false assumptions, because of the prospect of interrogation methods being revealed in detail and because of the chance of an acquittal that might set a legal precedent. Instead, they would prefer to send him to Jordan. Some U.S. officials remain steadfast in their conclusion that Abu Zubaida possessed, and gave up, plenty of useful information about al-Qaeda. "It's simply wrong to suggest that Abu Zubaida wasn't intimately involved with al-Qaeda," said a U.S. counterterrorism official, speaking on the condition of anonymity because much about Abu Zubaida remains classified. "He was one of the terrorist organization's key facilitators, offered new insights into how the organization operated, provided critical information on senior al-Qaeda figures . . . and identified hundreds of al-Qaeda members. How anyone can minimize that information -- some of the best we had at the time on al-Qaeda -- is beyond me." Until the attacks on New York and Washington, Abu Zubaida was a committed jihadist who regarded the United States as an enemy principally because of its support of Israel. He helped move people in and out of military training camps in Afghanistan, including some men who were or became members of al-Qaeda, according to interviews with multiple sources, who spoke on the condition of anonymity. He was widely known as a kind of travel agent for those seeking such training. That role, it turned out, would play a part in deciding his fate once in U.S. hands: Because his name often turned up in intelligence traffic linked to al- Qaeda transactions, some U.S. intelligence leaders were convinced that Abu Zubaida was a major figure in the terrorist organization, according to officials engaged in the discussions at the time. But Abu Zubaida had strained and limited relations with bin Laden and only vague knowledge before the Sept. 11 attacks that something was brewing, the officials said. His account was echoed in another U.S. interrogation going on at the same time, one never previously described publicly. Noor al-Deen, a Syrian, was a teenager when he was captured along with Abu Zubaida at a Pakistani safe house. Perhaps because of his youth and agitated state, he readily answered U.S. questions, officials said, and the questioning went on for months, first in Pakistan and later in a detention facility in Morocco. His description of Abu Zubaida was consistent: The older man was a well-known functionary with links to al-Qaeda, but he knew little detailed information about the group's operations. The counterterrorism official rejected that characterization, saying, "Based on what he shared during his interrogations, he was certainly aware of many of al- Qaeda's activities and operatives." One connection Abu Zubaida had with al-Qaeda was a long relationship with Khalid Sheik Mohammed, the self-proclaimed mastermind behind the Sept. 11 attacks, officials said. Mohammed had approached Abu Zubaida in the 1990s about finding financiers to support a suicide mission, involving a small plane, targeting the World Trade Center. Abu Zubaida declined but told him to try bin Laden, according to a law enforcement source. Abu Zubaida quickly told U.S. interrogators of Mohammed and of others he knew to be in al-Qaeda, and he revealed the plans of the low-level operatives who fled Afghanistan with him. Some were intent on returning to target American forces with bombs; others wanted to strike on American soil again, according to military documents and law enforcement sources. Such intelligence was significant but not blockbuster material. Frustrated, the Bush administration ratcheted up the pressure -- for the first time approving the use of increasingly harsh interrogations, including waterboarding. Such treatment at the hands of the CIA has raised questions among human rights groups about whether Abu Zubaida is capable of standing trial and how the taint of torture would affect any prosecution. The International Committee of the Red Cross said in a confidential report that the treatment of Abu Zubaida and other, subsequent high-value detainees while in CIA custody constituted torture. And Abu Zubaida refused to cooperate with FBI "clean teams" who attempted to re-interview high-value detainees to build cases uncontaminated by allegations of torture, according to military sources. "The government doesn't retreat from who KSM is, and neither does KSM," said Joseph Margulies, a professor of law at Northwestern University and one of Abu Zubaida's attorneys, using an abbreviation for Mohammed. "With Zubaida, it's different. The government seems finally to understand he is not at all the person they thought he was. But he was tortured. And that's just a profoundly embarrassing position for the government to be in." His lawyers want the U.S. government to arrange for Abu Zubaida's transfer to a country besides Jordan -- possibly Saudi Arabia, where he has relatives. The Justice Department declined repeated requests for comment. Even before President Obama suspended military commissions at the military base in Cuba, prosecutors had expunged Abu Zubaida's name from the charge sheets of a number of detainees who were captured with him and stood accused of conspiracy and material support for terrorism. When they were first charged in 2005, these detainees were accused of conspiring with Abu Zubaida, and the charge sheets contained numerous references to Abu Zubaida's alleged terrorist activities. When the charges were refiled last year, his name had vanished from the documents. Abu Zubaida was born in 1971 in Saudi Arabia to a Palestinian father and a Jordanian mother, according to court papers. In 1991, he moved to Afghanistan and joined mujaheddin fighting Afghan communists, part of the civil war that raged after the 1989 withdrawal of the Soviet Union. He was seriously wounded by shrapnel from a mortar blast in 1992, sustaining head injuries that left him with severe memory problems, which still linger. In 1994, he became the Pakistan-based coordinator for the Khalden training camp, outside the Afghan city of Khowst. He directed recruits to the camp and raised money for it, according to testimony he gave at a March 2007 hearing in Guantanamo Bay. The Khalden camp, which provided basic training in small arms, had been in existence since the war against the Soviets. According to the 9/11 Commission's report, Khalden and another camp called Derunta "were not al Qaeda facilities," but "Abu Zubaydah had an agreement with Bin Laden to conduct reciprocal recruiting efforts whereby promising trainees at the camps could be invited to join al Qaeda." Abu Zubaida disputes this, saying he admitted to such a connection with bin Laden only as the result of torture. When the Sept. 11 attacks occurred, Abu Zubaida was in Kabul, the Afghan capital. In anticipation of an American attack, he allied himself with al-Qaeda, he said at a 2007 hearing, but he soon fled into hiding in Pakistan. On the night of March 28, 2002, Pakistani and American intelligence officers raided the Faisalabad safe house where Abu Zubaida had been staying. A firefight ensued, and Abu Zubaida was captured after jumping from the building's second floor. He had been shot three times. Cowering on the ground floor and also shot was Noor al-Deen, Abu Zubaida's 19- year-old colleague; one source said that he worshiped the older man as a hero. Deen was wide-eyed with fear and appeared to believe that he was about to be executed, remembered John Kiriakou, a former CIA officer who participated in the raid. "He was frightened -- mostly over what we were going to do with him," Kiriakou said. "He had come to the conclusion that his life was over." Deen was eventually transferred to Syria, but attempts to firmly establish his current whereabouts were unsuccessful. His interrogations corroborated what CIA officials were hearing from Abu Zubaida, but there were other clues at the time that pointed to a less-than- central role for the Palestinian. As a veritable travel agent for jihadists, Abu Zubaida operated in a public world of Internet transactions and ticket agents. "He was the above-ground support," said one former Justice Department official closely involved in the early investigation of Abu Zubaida. "He was the guy keeping the safe house, and that's not someone who gets to know the details of the plans. To make him the mastermind of anything is ridiculous." As weeks passed after the capture without significant new confessions, the Bush White House and some at the CIA became convinced that tougher measures had to be tried. The pressure from upper levels of the government was "tremendous," driven in part by the routine of daily meetings in which policymakers would press for updates, one official remembered. "They couldn't stand the idea that there wasn't anything new," the official said. "They'd say, 'You aren't working hard enough.' There was both a disbelief in what he was saying and also a desire for retribution -- a feeling that 'He's going to talk, and if he doesn't talk, we'll do whatever.' " The application of techniques such as waterboarding -- a form of simulated drowning that U.S. officials had previously deemed a crime -- prompted a sudden torrent of names and facts. Abu Zubaida began unspooling the details of various al-Qaeda plots, including plans to unleash weapons of mass destruction. Abu Zubaida's revelations triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms. The interrogations led directly to the arrest of Jose Padilla, the man Abu Zubaida identified as heading an effort to explode a radiological "dirty bomb" in an American city. Padilla was held in a naval brig for 3 1/2 years on the allegation but was never charged in any such plot. Every other lead ultimately dissolved into smoke and shadow, according to high-ranking former U.S. officials with access to classified reports. "We spent millions of dollars chasing false alarms," one former intelligence official said. Despite the poor results, Bush White House officials and CIA leaders continued to insist that the harsh measures applied against Abu Zubaida and others produced useful intelligence that disrupted terrorist plots and saved American lives. Two weeks ago, Bush's vice president, Richard B. Cheney, renewed that assertion in an interview with CNN, saying that "the enhanced interrogation program" stopped "a great many" terrorist attacks on the level of Sept. 11. "I've seen a report that was written, based upon the intelligence that we collected then, that itemizes the specific attacks that were stopped by virtue of what we learned through those programs," Cheney asserted, adding that the report is "still classified," and, "I can't give you the details of it without violating classification." Since 2006, Senate intelligence committee members have pressed the CIA, in classified briefings, to provide examples of specific leads that were obtained from Abu Zubaida through the use of waterboarding and other methods, according to officials familiar with the requests. The agency provided none, the officials said. [ Staff researcher Julie Tate contributed to this report. ] * New York Times -- March 23, 2009 PLEA BARGAIN WAS WEIGHED FOR GUANTANAMO DETAINEE by Raymond Bonner http://www.nytimes.com/2009/03/24/world/europe/24london.html LONDON -- Details of negotiations on a highly restrictive plea bargain for a Guantanamo detainee were revealed in a legal document released by a British court on Monday. The measures proposed by the United States included a prison term of at least three years more than the seven he had already been detained, a gag order, an end to his efforts to obtain documents that might bolster his claims that he was tortured while in CIA custody, and an agreement not to file lawsuits against the United States government or any of its officials. The detainee, Binyam Mohamed, rejected the offer, and eventually all charges against him were dropped. He was released to Britain last month and is now free. The document was prepared by the court last October but was not made public because, the court said, the rules of plea bargaining with the United States military commissions required confidentiality. His lawyers were not even allowed to say that a plea bargain was being discussed. With negotiations ended, the court said it could release the document. At one point, the document said, Mr. Mohamed had agreed to plead "no defense" to charges of support for terrorism in exchange for a sentence not to exceed three years, which he would be allowed to serve in Britain. The prosecutors rejected this, the court noted. In a statement released Monday, a lawyer for Mr. Mohamed, Clive Stafford Smith, said his client would have pleaded guilty "to being the pope himself" if it would have ended his ordeal. Mr. Mohamed, who was born in Ethiopia and moved to Britain as a teenager, was apprehended in Pakistan in April 2002 as he was trying to leave the country with a falsified British passport. He had been in Afghanistan and had undergone military training, which he said was to prepare him to fight in Chechnya. But American officials initially said that he was preparing to carry out terrorist attacks in the United States. At one point, American officials said he had been part of a plot to detonate a "dirty bomb" in the United States. He was held at the United States' Bagram Air Base in Afghanistan, where Mr. Mohamed says his torture began. A few months after his capture, he was secretly flown by the CIA to Morocco, according to American and British officials. As part of the Bush administration's rendition program, some terrorism suspects were transferred to countries where torture is known to be used. The CIA has declined to say publicly where Mr. Mohamed was held and has denied that it ever engaged in or condoned torture. Mr. Mohamed has said that he was in Morocco for 18 months, during which time his captors used scalpels to cut his chest and genitals. "I was in agony, crying, trying desperately to suppress myself, but I was screaming," Mr. Mohamed said this month in an interview with The Mail on Sunday, a British newspaper. "There was blood all over," he added. "They cut all my private parts." They also tempted him with women, "naked or part naked," Mr. Mohamed told his lawyer, Mr. Stafford Smith, during an interview when he was still at the Guantanamo Bay prison in Cuba. Mr. Stafford Smith made written records immediately after many of his interviews with his client, and those accounts were cleared by military censors. Mr. Stafford Smith provided the accounts, which he calls Mr. Mohamed's "diary," to The New York Times. On the day Mr. Mohamed left Morocco, in the custody, he said, of American soldiers in black masks, his guards first cut off all his clothes, according to the diary. Then a "white female with glasses" took pictures of his injuries, the diary says. "She was one of the few Americans who ever showed me any sympathy," Mr. Mohamed is quoted as having told Mr. Stafford Smith. "When she saw the injuries I had, she gasped. I could see the shock and horror in her eyes." His lawyers have filed lawsuits to obtain these photographs, as well as 42 other classified documents, which the British court said lent credence to Mr. Mohamed's allegations. * Confidential Annex to Judgement 3, [2008] EWHC 2519 (2008.10.22): http://graphics8.nytimes.com/packages/pdf/world/ binyam-mohamed-court-document.pdf * Judgement 3, [2008] EWHC 2519 (Admin)(2008.10.22): http://www.bailii.org/ew/cases/EWHC/Admin/2008/2519.html * * *