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NEWS DIGEST 2009.06.22 - 2009.12.31
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HARPER'S --

October 2, 2009

THE WORST OF THE WORST?

by Scott Horton

http://harpers.org/archive/2009/10/hbc-90005811

For seven years, the Bush Administration told us that the prisoners held at
Guantanamo were the "worst of the worst." These are the kind of people who would
chew through the hydraulic cables of a jet to try to bring it down, a breathless
General Richard Myers once noted at a 2002 press conference. No one ever
disputed that there were some dangerous figures at Guantanamo, particularly
after President Bush decided on the eve of the 2006 midterm elections to move
those held in CIA black sites to the naval station in Cuba. But was this true of
the majority of the prisoners?

There was an odd discord between the rhetoric of the Bush Administration and
their conduct. They continued to talk about the "worst of the worst," and they
relaunched it as a talking point almost from the start of the Obama
Administration. But they also worked hard to release and repatriate a large
number of detainees -- it looks like roughly two thirds of the total -- down to
the end of their term. Seton Hall Law School students and faculty issued a
series of impressive reports surveying the available evidence, and they
suggested that perhaps as many as 80% of the total inmate population of Gitmo
were innocent people, swept up as a result of generous bounty payments the
United States offered to Afghan warlords and Pakistani security officials.

Now, as habeas corpus cases are processed, we finally have a basis to judge the
Bush-Cheney claims about the Gitmo prisoners. The "judging" is being done by
federal judges in Washington, nearly all of them conservative Republicans and
quite a few appointed by George W. Bush himself. The results? The process is
still ongoing. But at this moment, decisions have been rendered in 38 cases. The
government was found to have had a tenable basis to hold eight Gitmo prisoners,
and to have no basis in 30 cases. So far at least, the court judgments are
remarkable in their coincidence with the numbers from the Seton Hall study. The
judicial reviews -- which have gotten far less press coverage than the scatter-
shot attacks of Dick Cheney and his daughter -- can be summarized this way:
"Worst of the worst? Not so much."

Here’s the roll call, with the status, the prisoner involved, the judge who
ruled, and the prisoner’s nationality:


FREEDOM GRANTED -- 30 (20 of whom are still in custody)

17 Uighurs -- Urbina (4 released to Bermuda)

5 Bosnian-Algerians -- Leon -- (4 released -- 3 to Bosnia and 1 (Lakhdar
Boumediene) to France)

Mohammed el Gharani (Chadian) -- Leon (released to Chad)

Yasim Muhammed Basardah -- Huvelle (Yemeni)

Alla Ali Bin Ali Ahmed -- Kessler (Yemeni)

Abd al Rahim Abdul Rassak Janko -- Leon (Syrian)

Khalid Abdullah Mishal Thamer Al Mutairi -- Kollar-Kotelly (Kuwaiti)

Mohammed Jawad -- Huvelle (Afghan; released to Afghanistan)

Mohammed Al-Adahi -- Kessler (Yemeni)

Fouad Al Rabiah -- Kollar-Kotelly (Kuwaiti).


FREEDOM DENIED -- 8

Belkacem Bensayah (Bosnian) -- Leon

Hisham Sliti (Tunisian) -- Leon

Muaz Al Alawi (Yemeni) -- Leon

Ghaleb Nassar Al Bihani (Yemeni) -- Leon

Hammamy (Tunisian) -- Leon

Waqas Mohammed Ali Awad (Yemeni) -- Robertson

Fawzi Al Odah (Kuwaiti) -- Kollar-Kotelly

Sufyian Barhoumi (Algerian) -- Collyer

[ h/t to Shane Kadidal for the tally. ]

*


Washington Post / ProPublica ==

Friday, September 25, 2009

WHITE HOUSE REGROUPS ON GUANTANAMO
Counsel Craig Replaced as Point Man on Issue as Deadline for Closing Looms

by Anne E. Kornblut and Dafna Linzer

http://www.washingtonpost.com/wp-dyn/content/
story/2009/09/24/ST2009092405277.html

With four months left to meet its self-imposed deadline for closing the U.S.
military prison at Guantanamo Bay, Cuba, the Obama administration is working to
recover from missteps that have put officials behind schedule and left them
struggling to win the cooperation of Congress.

Even before the inauguration, President Obama's top advisers settled on a course
of action they were counseled against: announcing that they would close the
facility within one year. Today, officials are acknowledging that they will be
hard-pressed to meet that goal.

The White House has faltered in part because of the legal, political and
diplomatic complexities involved in determining what to do with more than 200
terrorism suspects at the prison. But senior advisers privately acknowledge not
devising a concrete plan for where to move the detainees and mishandling
Congress.

To address these setbacks, the administration has shifted its leadership team on
the issue. White House Counsel Gregory B. Craig, who initially guided the effort
to close the prison and who was an advocate of setting the deadline, is no
longer in charge of the project, two senior administration officials said this
week.

Craig said Thursday that some of his early assumptions were based on
miscalculations, in part because Bush administration officials and senior
Republicans in Congress had spoken publicly about closing the facility. "I
thought there was, in fact, and I may have been wrong, a broad consensus about
the importance to our national security objectives to close Guantanamo and how
keeping Guantanamo open actually did damage to our national security
objectives," he said.

In May, one of the senior officials said, Obama tapped Pete Rouse -- a top
adviser and former congressional aide who is not an expert on national security
but is often called in to fix significant problems -- to oversee the process.
Senior adviser David Axelrod and deputy communications director Dan Pfeiffer
were brought in to craft a more effective message around detainee policy, the
official said.

"It was never going to be easy, but we have worked through some of the early
challenges and are on a strong course," Pfeiffer said.

To empty the prison, the administration will need to find facilities to house 50
to 60 prisoners who cannot be released and who cannot be tried because of legal
impediments, according to an administration official. The administration must
also win congressional funding for the closure process, find host countries for
detainees cleared for release, and transfer dozens of inmates to federal and
military courts for prosecution.

Three administration officials said they expect Craig to leave his current post
in the near future, and one said he is on the short list for a seat on the bench
or a diplomatic position. Craig has long made clear his desire to be involved in
foreign policy, but he declined to comment on his plans.

Several White House officials remain involved in Guantanamo Bay, including
Thomas E. Donilon, the deputy national security adviser; John O. Brennan, the
counterterrorism adviser; and David Rapallo, an official on the National
Security Council.

"Guantanamo was everyone's part-time job," said a senior official, one of
several interviewed for this article who spoke on the condition of anonymity to
discuss internal deliberations. Now, the official added, Rouse is coordinating
them.

Setting a Deadline

Before the election, Craig met privately with a group of top national security
lawyers who had served in Democratic and Republican administrations to discuss
Guantanamo Bay. During the transition, he met with members of the outgoing
administration, some of whom warned him against issuing a deadline to close the
facility without first finding alternative locations for the prisoners.

Although the move was approved by all of Obama's senior advisers and,
ultimately, the president himself, the deadline came at the suggestion of Craig,
according to two senior government officials involved in the process. Craig
declined to comment on internal discussions.

Craig oversaw the drafting of the executive order that set Jan. 22, 2010, as the
date by which the prison must be closed.

"It seemed like a bold move at the time, to lay out a time frame that to us
seemed sufficient to meet the goal," one senior official said. "In retrospect,
it invited a fight with the Hill and left us constantly looking at the clock."

"The entire civil service counseled him not to set a deadline" to close
Guantanamo, according to one senior government lawyer.

In those early months, Craig was unquestionably the central figure in the effort
to shut Guantanamo Bay. In an interview with The Washington Post in February, he
said he was managing the closure "on a day-to-day basis."

Craig began reviewing the cases of each detainee at the facility, and was one of
the first senior officials to travel to the prison, visiting on Feb. 18, ahead
of Attorney General Eric H. Holder Jr.

But as time wore on, congressional staff members said, they stopped hearing from
Craig. Although there were periodic briefings with members of the Justice
Department's task forces, there was no longer a point person from the White
House who appeared to be shepherding the issue, according to one Republican
aide. Craig became involved in other matters, such as vetting, ethics and the
nomination of Sonia Sotomayor to the Supreme Court.

Obstacles and Setbacks

Senior administration officials said the central roadblock during those early
months was the condition of the detainee files, which had been left in disarray
by the previous administration.

"We assumed that for each detainee there was going to be a file somewhere," one
senior administration official said. "Some of the intelligence files were not
even organized by detainee. You had to go into a mainframe database and search
the name of the detainee to put together a file. So there were weeks, if not
months, of putting together the files of detainees that then could be reviewed
by the fresh eyes that we wanted."

As the process was getting underway in the spring, the administration began
losing support for shutting the facility, in part, officials now say, because
the White House did not present a concrete plan for what it would do with the
remaining terrorism suspects.

After news reports that some detainees -- Chinese Muslims known as Uighurs --
were going to be moved to the Virginia suburbs, lawmakers balked.

Then in May, the Senate decided, by an overwhelming vote of 90 to 6, to block
funding for shutting Guantanamo Bay -- Obama's first major legislative setback
as president.

Public displeasure with the decision to close the prison grew. Fifty percent of
those surveyed in June said they disapproved of closing the facility, according
to a Washington Post-ABC News poll, up significantly from a Pew poll in
February.

Republicans pounced on the closure, alleging that it would make the United
States "less safe." Senate Majority Leader Harry M. Reid (D-Nev.) said Democrats
would "under no circumstances" move forward without more specifics.

The following month, Congress passed an appropriations bill that required the
administration to report its plans before moving any detainee out of Guantanamo
Bay and prevented it from using available money to move detainees onto U.S.
soil.

Six pending pieces of legislation would make it harder for Obama to close the
prison and transfer detainees to the United States or foreign countries.

After the congressional setbacks, Craig orchestrated the release of four of the
Uighurs, flying with them and a State Department official from Guantanamo Bay to
Bermuda, a self-governing British territory whose international relations are
administered by Britain.

The transfer produced a diplomatic rift. British and U.S. officials said the
Obama administration gave Britain two hours' notice that the Uighurs were being
sent to Bermuda. "They essentially snuck them in, and we were furious," said a
senior British official.

The move also caused friction between Britain and China, which seeks the Uighurs
for waging an insurgency against the Chinese government.

Late Thursday, White House Chief of Staff Rahm Emanuel offered a defense of
Craig, saying he "played a critical role in pursuing the president's goal of
ensuring that we protect our nation's security interests in a manner that is
consistent with our laws and our values."

One administration official was more effusive. "Greg Craig is a hero," the
official said. "He took responsibility for this policy from the beginning, and
he has guts and character. If we can't get it done by the deadline, then at
least we'll have done as much as we can as smoothly as we could have."

In coming weeks, officials say, they expect to complete the initial review of
all the files of those held at Guantanamo Bay.

[ Staff writer Peter Finn, polling director Jon Cohen and staff researcher Julie
Tate contributed to this report. ProPublica is an independent, nonprofit
newsroom that produces investigative journalism in the public interest. ]

*


Washington Post --

September 24, 2009

ADMINISTRATION WON'T SEEK NEW DETENTION SYSTEM

by Peter Finn



The Obama administration has decided not to seek legislation to establish a new
system of preventive detention to hold terrorism suspects and will instead rely
on a 2001 congressional resolution authorizing military force against al-Qaeda
and the Taliban to continue to detain people indefinitely and without charge,
according to administration officials.

Leading congressional Democrats and members of the civil rights community had
signaled opposition to any new indefinite-detention regime, fearing that it
would expand government powers and undermine the rule of law and U.S. legal
traditions.

The administration's decision avoids a potentially rancorous debate that could
alienate key allies at a time when President Obama needs congressional and
public support to transfer detainees held at the military prison at Guantanamo
Bay, Cuba, to the United States for trial or continued incarceration.

The administration has concluded that its detention powers, as currently
accepted by the federal courts, are adequate to the task of holding some
Guantanamo Bay detainees indefinitely. And although legal advocacy groups, such
as the American Civil Liberties Union, are unhappy with the existing system,
they acknowledge that it has enabled some detainees to win their release and
limited government power in ways that any new law might not.

"This is very welcome news and very big news," said Christopher Anders, senior
legislative counsel at the ACLU. "Going to Congress with new detention authority
legislation would only have made a bad situation worse. It likely would have
triggered a chaotic debate that would have been beyond the ability of the White
House to control -- and would have put U.S. detention policy even further
outside the rule of law."

In a speech at the National Archives in May, Obama, noting that there may be
some detainees held at Guantanamo Bay who cannot be prosecuted for past crimes
but who are too dangerous to release, said any system of prolonged detention
will involve "judicial and congressional oversight."

"We must have clear, defensible and lawful standards for those who fall into
this category," said Obama, speaking of protracted detention. "We must have fair
procedures so that we don't make mistakes. We must have a thorough process of
periodic review so that any prolonged detention is carefully evaluated and
justified. . . . And so, going forward, my administration will work with
Congress to develop an appropriate legal regime."

An administration official, speaking on the condition of anonymity, said
Wednesday that Obama's comments did not necessarily imply that he was seeking
legislation, despite interpretations to the contrary by some advocacy groups.

A number of academics and legislators had called for the creation, through
legislation, of a national security court that could provide legal backing and
regular review in cases in which detainees are held without charge. The
administration also weighed the possibility of issuing an executive order that
would reassert presidential authority to incarcerate terrorism suspects,
according to senior government officials with knowledge of White House
deliberations, but that route was ultimately rejected.

Senior Justice Department officials first told legal advocates and
representatives of human rights organizations at a meeting last week that the
administration would not pursue new legislation either.

Mark D. Agrast, deputy assistant attorney general for legislative affairs, and
Brad Wiegman, a principal deputy and chief of staff in the National Security
Division who heads an interagency task force on detention policy, told a group
of about 15 activists that the government has all the detention authority it
needs and will neither propose nor support any new legislation, according to
several people who attended the meeting. None of those who described the
exchange was willing to be identified because the meeting was private.

"The position conveyed by the Justice Department in the meeting you reference
broke no new ground and was entirely consistent with information previously
provided by the Justice Department to the Senate Armed Services Committee," a
spokesman for the department told The Washington Post in a statement.
"Specifically, that the administration would rely on authority already provided
by Congress under the [Authorization for Use of Military Force] as informed by
the laws of war in justifying to federal courts in habeas corpus litigation the
continued detention of Guantanamo detainees. The Administration is not currently
seeking additional authorization."

Those held by the government can challenge their detention in habeas proceedings
in U.S. District Court in the District of Columbia, which has effectively become
a national security court through its ongoing review of the evidence against
Guantanamo Bay detainees.

About 200 detainees have filed suit under habeas corpus, a centuries-old legal
doctrine that allows prisoners to challenge their confinement through the
courts.

The government has lost 30 of 38 habeas cases in U.S. District Court, with the
judges often citing a lack of evidence to justify continued incarceration.
However, 20 of those detainees continue to be held at Guantanamo Bay because the
government has not found countries willing to take them, according to statistics
compiled by David H. Remes, a habeas lawyer.

Separately, a Justice Department-led review team is also examining the cases of
the 226 detainees held at Guantanamo Bay and recommending many for repatriation
or resettlement in third countries. The panel will decide which detainees should
be prosecuted and whether some should be held in prolonged detention.

Federal judges in habeas cases have also circumscribed the government's
rationale for continued detention but have not challenged its fundamental power
to detain.

In federal court in March, the Obama administration cited the 2001 congressional
authorization of force to assert that "the president has the authority to detain
persons that the president determines planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001, and persons who
harbored those responsible for those attacks. The president also has the
authority to detain persons who were part of, or substantially supported,
Taliban or al-Qaeda forces or associated forces that are engaged in hostilities
against the United States or its coalition partners, including any person who
has committed a belligerent act, or has directly supported hostilities, in aid
of such enemy armed forces."

That recast the Bush administration's broad claim of inherent executive
authority to hold any person who was "part of or supporting" the Taliban or al-
Qaeda.

*


Washington Post --

August 24, 2009

OBAMA APPROVES NEW TEAM TO QUESTION TERROR SUSPECTS

by Anne E. Kornblut

http://www.washingtonpost.com/wp-dyn/content/
article/2009/08/24/AR2009082401133.html

President Obama has approved the creation of an elite team of interrogators to
question key terrorism suspects, part of a broader effort to revamp U.S. policy
on detention and interrogation, senior administration officials said Sunday.

Obama signed off late last week on the unit, named the High-Value Detainee
Interrogation Group, or HIG. On Monday, White House spokesman Bill Burton
confirmed that the high-value interrogation unit will be based at the FBI and
will operate "consistent with the army field manual" which provides guidelines
for questioners.

Made up of experts from several intelligence and law enforcement agencies, the
interrogation unit will be will be overseen by the National Security Council --
shifting the center of gravity away from the CIA and giving the White House
direct oversight.

Burton said the decision to place the unit in the FBI does not put the CIA out
of the business of questioning terrorists. He said the agency would still have a
seat at the table as the interrogations move forward.

"The CIA obviously has a very important role to play," Burton said during a
briefing conducted on Martha's Vineyard, where Obama is vacationing. He said the
new unit "houses all these different elements under one roof where they can best
perform their duties."

Seeking to signal a clean break from the Bush administration, Obama moved to
overhaul interrogation and detention guidelines soon after taking office,
including the creation of a task force on interrogation and transfer policies.

The task force recommended the new interrogation unit, along with other changes
regarding the way prisoners are transferred overseas. Its findings are expected
to be made public on Monday.

A separate task force on detainees, which will determine the fate of prisoners
at Guantanamo Bay, Cuba, and future regulations about the duration and location
of detentions of suspected terrorists, has not concluded its work.

Also on Monday, a government official confirmed a separate report in the New
York Times that Justice Department ethics investigators had recommended that
Attorney General Eric H. Holder Jr. reopen investigation of several cases
alleging abuse by CIA employees and contractors. Many of the cases had been
considered by federal prosecutors in Virginia, who ultimately declined to seek
grand jury indictments because of difficulties with witnesses and evidence.

The report on investigating abuse cases, written by the department's Office of
Professional Responsibility, is undergoing declassification review and its
release is not imminent, the official said, speaking on condition of anonymity
because of the sensitivity of the matter.

The recommendation about reopening a small number of cases is only a small
portion of the report's findings.

As previously reported, the OPR report also will recommend that at least two
Bush administration lawyers, Jay S. Bybee and John C. Yoo, face further
investigation by state legal disciplinary authorities. Such a probe would not
expose them to criminal sanctions for their work in developing memos that
supported such harsh interrogation techniques as waterboarding and wall
slamming.

Under the new White House guidelines for interrogating detainees, interrogators
must stay within the parameters of the Army Field Manual when questioning
suspects. The task force concluded -- unanimously, officials said -- that "the
Army Field Manual provides appropriate guidance on interrogation for military
interrogators and that no additional or different guidance was necessary for
other agencies," according to a three-page summary of the findings. The
officials spoke on the condition of anonymity to discuss intelligence matters
freely.

Using the Army Field Manual means certain techniques in the gray zone between
torture and legal questioning -- such as playing loud music or depriving
prisoners of sleep -- will not be allowed. Which tactics are acceptable was an
issue "looked at thoroughly," one senior official said. Obama had already banned
certain severe measures that the Bush administration had permitted, such as
waterboarding.

Still, the Obama task force advised that the group develop a "scientific
research program for interrogation" to develop new techniques and study existing
ones to see whether they work. In essence, the unit would determine a set of
best practices on interrogation and share them with other agencies that question
prisoners.

The administration is releasing the new guidelines on the day when what it sees
as the worst practices of the Bush administration are being given another public
airing. New details of prisoner treatment are expected to be included in a long-
awaited CIA inspector general's report also being unveiled Monday about the spy
agency's interrogation program. The report could set off a fresh debate between
members of the current administration and the previous one over whether such
tactics are necessary to prod detainees into cooperation and, ultimately, keep
the country safe.

Holder is also considering whether to appoint a criminal prosecutor to
investigate past interrogation abuses. Obama and White House officials have
stated their desire to look ahead on national security; White House press
secretary Robert Gibbs said last week that the administration is eager to keep
"going forward" and that "a hefty litigation looking backward is not what we
believe is in the country's best interest."

But a steady drip of stories about past practices has focused attention on the
Bush administration. According to recent reports, the CIA hired the private
contracting firm Blackwater USA as part of a program to kill top al-Qaeda
operatives.

In addition to the new interrogation unit, the Obama task force recommended that
the State Department play a more active role in transferring detainees between
countries. When the United States is moving a prisoner to another country, it
"may rely on assurances" from the foreign government that the detainee will not
be tortured. But the State Department will now be involved in evaluating whether
such assurances are sincere, the officials said, and the United States will also
seek new ways of monitoring treatment of prisoners in foreign custody. Other
recommendations involve prisoner transfers that are classified, the summary
said.

Members of the new interrogation unit will have the authority to travel around
the world to talk to suspects and will be trained to handle certain high-
interest people, such as al-Qaeda leader Osama bin Laden. Linguists and cultural
and interrogation specialists will be assigned to the group and will have "some
division of responsibility" regarding types of detainees, a senior
administration official said. Most of the group's members will work there full
time, although they will have part-time support from the FBI.

Interrogators will not necessarily read detainees their rights before
questioning, instead making that decision on a case-by-case basis, officials
said. That could affect whether some material can be used in a U.S. court of
law. The main purpose of the new unit, however, is to glean intelligence,
especially about potential terrorist attacks, the officials said.

"It is not going to, certainly, be automatic in any regard that they are going
to be Mirandized," one official said, referring to the practice of reading
defendants their rights. "Nor will it be automatic that they are not
Mirandized."

The director of the HIG is expected to come from the FBI, and the deputy will be
selected from one of the intelligence agencies, such as the CIA. Although past
CIA techniques have come under fire in the debate over torture, the agency will
continue to play "a very important role," one official said.

The CIA had recommended to the presidential task force that the agency, the FBI
and the Defense Department establish a joint interrogation training center so
that all agencies understand the rules under which they operate.

[ Staff writer Peter Finn contributed to this report. ]

*


New York Times --

August 13, 2009

Interrogation Inc.
A WINDOW INTO CIA'S EMBRACE OF SECRET JAILS

by David Johnston and Mark Mazzetti

http://www.nytimes.com/2009/08/13/world/13foggo.html

WASHINGTON -- In March 2003, two CIA officials surprised Kyle D. Foggo, then the
chief of the agency's main European supply base, with an unusual request. They
wanted his help building secret prisons to hold some of the world's most
threatening terrorists.

Mr. Foggo, nicknamed Dusty, was known inside the agency as a cigar-waving,
bourbon-drinking operator, someone who could get a cargo plane flying anywhere
in the world or quickly obtain weapons, food, money -- whatever the CIA needed.
His unit in Frankfurt, Germany, was strained by the spy agency's operations in
Afghanistan and Iraq, but Mr. Foggo agreed to the assignment.

"It was too sensitive to be handled by headquarters," he said in an interview.
"I was proud to help my nation."

With that, Mr. Foggo went on to oversee construction of three detention centers,
each built to house about a half-dozen detainees, according to former
intelligence officials and others briefed on the matter. One jail was a
renovated building on a busy street in Bucharest, Romania, the officials
disclosed. Another was a steel-beam structure at a remote site in Morocco that
was apparently never used. The third, another remodeling project, was outside
another former Eastern bloc city. They were designed to appear identical, so
prisoners would be disoriented and not know where they were if they were
shuttled back and forth. They were kept in isolated cells.

The existence of the network of prisons to detain and interrogate senior
operatives of Al Qaeda has long been known, but details about them have been a
closely guarded secret. In recent interviews, though, several former
intelligence officials have provided a fuller account of how they were built,
where they were located and life inside them.

Mr. Foggo acknowledged a role, which has never been previously reported. He
pleaded guilty last year to a fraud charge involving a contractor that equipped
the CIA jails and provided other supplies to the agency, and he is now serving a
three-year sentence in a Kentucky prison.

The CIA prisons would become one of the Bush administration's most extraordinary
counterterrorism programs, but setting them up was fairly mundane, according to
the intelligence officials.

Mr. Foggo relied on CIA finance officers, engineers and contract workers to
build the jails. As they neared completion, he turned to a small company linked
to Brent R. Wilkes, an old friend and a San Diego military contractor.

The business provided toilets, plumbing equipment, stereos, video games,
bedding, night vision goggles, earplugs and wrap-around sunglasses. Some
products were bought at Target and Wal-Mart, among other vendors, and flown
overseas. Nothing exotic was required for the infamous waterboards -- they were
built on the spot from locally available materials, the officials said.

Mr. Foggo, 55, would not discuss classified details about the jails. He was not
charged with wrongdoing in connection with the secret prisons, but instead
accused of steering other CIA business to Mr. Wilkes' companies in exchange for
expensive vacations and other favors. Before leaving the CIA in 2006, he had
become its third-highest official, and his plea was an embarrassment for the
agency.

After the 2001 terrorist attacks, the intelligence world's embrace of dark-of-
night snatch-and-grabs, hidden prisons and interrogation tactics that critics
condemned as torture has stained the CIA's reputation and led to legal
challenges, investigations and internal divisions that may take years to
resolve. The Justice Department is now considering opening a criminal
investigation, with much of the attention focused on the agency's network of
secret prisons, which have become known as the "black sites."

From Fringes to Spotlight

The demands of the wars in Iraq and Afghanistan had transformed Mr. Foggo from a
fringe player into the CIA's indispensable man. Before the 9/11 attacks, the
Frankfurt base was a relatively sleepy resupply center, running one or two
flights a month to outlying stations. Within days of the attacks, Mr. Foggo had
a budget of $7 million, which quickly tripled.

He managed dozens of employees, directing nearly daily flights of cargo planes
loaded with pallets of supplies, including saddles, bridles and horse feed for
the mounted tribal forces that the spy agency recruited. Within weeks, he
emptied the CIA's stockpile of AK-47s and ammunition at a Midwest depot.

He was a logical choice for the prison project: aggressive, resourceful,
patriotic, ready to dispense a favor; some inside the CIA jokingly compared him
to Milo Minderbinder, the fictional character who rose from mess hall officer to
the black-market magnate of Joseph Heller's World War II novel "Catch-22."

Early in the fight against Al Qaeda, agency officials relied heavily on American
allies to help detain people suspected of terrorism in makeshift facilities in
countries like Thailand. But by the time two CIA officials met with Mr. Foggo in
2003, that arrangement was under threat, according to people briefed on the
situation. In Thailand, for example, local officials were said to be growing
uneasy about a black site outside Bangkok code-named Cat's Eye. (The agency
would eventually change the code name for the Thai prison, fearing it would
appear racially insensitive.) The CIA wanted its own, more permanent detention
centers.

Eventually, the agency's network would encompass at least eight detention
centers, including one in the Middle East, one each in Iraq and Afghanistan and
a maximum-security long-term site at Guantanamo Bay, Cuba, that was dubbed
Strawberry Fields, officials said. (It was named after a Beatles song after CIA
officials joked that the detainees would be held there, as the lyric put it,
"forever.")

The CIA has never officially disclosed the exact number of prisoners it once
held, but top officials have put the figure at fewer than 100.

At the detention centers Mr. Foggo helped build, several former intelligence
officials said, the jails were small, and though they were built to house about
a half-dozen detainees they rarely held more than four.

The cells were constructed with special features to prevent injury to the
prisoners during interrogations: nonslip floors and flexible, plywood-covered
walls to soften the impact of being slammed into the wall.

The detainees, held in cells far enough apart to prevent communication with one
another, were kept in solitary confinement 23 hours a day. For their one hour of
daily exercise, they were taken out of their cells by CIA security officers
wearing black ski masks to hide their identities and to intimidate the
detainees, according to the intelligence officials.

Just like prisons in the United States, the jailers imposed a reward and
punishment system: well-behaved detainees received books, DVDs and other forms
of entertainment, which were taken away if they misbehaved, the officials said.

CIA analysts served 90-day tours at the prison sites to assist the
interrogations. But by the time the new prisons were built in mid-2003 or later,
the harshest CIA interrogation practices -- including waterboarding -- had been
discontinued.

Winning a Promotion

Mr. Foggo's success in Frankfurt, including his work on the prisons, won him a
promotion back in Washington. In November 2004, he was named the CIA's executive
director, in effect its day-to-day administrative chief.

The appointment raised some eyebrows at the agency. "It was like taking a senior
NCO and telling him he now runs the regiment," said A. B. Krongard, the CIA's
executive director from 2001 to 2004. "It popped people's eyes."

Mr. Foggo soon became embroiled in agency infighting. The CIA was reeling from
criticism that it had exaggerated Iraq's weapons programs. Mr. Foggo came to
Washington as part of a new team that almost immediately began firing top CIA
officials, causing anger among veteran clandestine officers. Mr. Foggo's fast
rise and blunt approach unsettled some headquarters officials, according to
Brant G. Bassett, a former agency officer and friend who served with Mr. Foggo.

"Dusty went in there with a blowtorch," Mr. Bassett said. "Some people were
overjoyed, but there were a few others who said, we've got to take this guy
down."

In 2005, before he came under investigation, Mr. Foggo and other officials,
including John Rizzo, the agency's top lawyer, paid a rare visit to some of the
prison sites, assuring CIA employees that their activities were legal, according
to former intelligence officials. Mr. Foggo also met with representatives of
Eastern European security services that had helped with the prisons. He
expressed gratitude and offered assistance -- a gesture the officials politely
declined.

In February 2007, Mr. Foggo and Mr. Wilkes were indicted. Prosecutors believed
that the CIA had paid an inflated price to Archer Logistics, a business
connected to Mr. Wilkes that had a $1.7 million CIA supply contract. In return,
the prosecutors claimed, Mr. Wilkes had taken Mr. Foggo on expensive vacations,
paid for his meals at expensive restaurants and promised him a lucrative job
when he retired.

"I was taking a trip with my best friend," Mr. Foggo said in his defense. "It
looked bad, but we had been taking trips together since we were 17 years old."

Mr. Foggo said he had turned to Mr. Wilkes' companies to bypass the cumbersome
CIA bureaucracy, not to provide a sweetheart deal to his oldest friend. "I
needed something done by someone I trusted in private industry," Mr. Foggo said.

Downfall in Court

Mr. Wilkes maintains his innocence, but he was eventually convicted in a bribery
scandal involving former Representative Randall Cunningham of California. Mr.
Foggo pleaded guilty and is serving a sentence on the fraud count, but he still
maintains that he was unfairly prosecuted.

His lawyer, Mark J. MacDougall, said he believed that Mr. Foggo's legal problems
stemmed in part from controversies over his stint as executive director. "Nobody
ever accused Dusty Foggo of putting a dime in his pocket, failing to do his job,
or compromising national security," Mr. MacDougall said. "Dusty may have made
some mistakes, but this case was driven by professional animosity at CIA and
personal ambition."

When Mr. Foggo's lawyers tried unsuccessfully to obtain access to agency files
about his role in the prison program, prosecutors complained that he was trying
to disclose a secret program. Mr. Foggo claimed that he was reluctant to divulge
his role in classified programs and pleaded guilty, in part, to avoid revealing
his secrets.

In an Aug. 1, 2007, letter, a CIA lawyer informed Mr. Foggo's lawyers that they
could not review any classified files related to the prisons. The agency's
letter concluded, "In light of the president's statements regarding the
extraordinary value and sensitivity of the CIA terrorist detention and
interrogation program, the CIA denies your request in its entirety."

*


Salon.com --

July 21, 2009

FIRST STEPS TAKEN TO IMPLEMENT PREVENTIVE DETENTION, MILITARY COMMISSIONS

by Glenn Greenwald

http://www.salon.com/opinion/greenwald/2009/07/21/detention/

A task force appointed by President Obama to issue recommendations on how to
close Guantanamo announced yesterday it will miss its deadline and instead needs
a six-month extension, potentially jeopardizing Obama's promise to close
Guantanamo within a year.  The announcement was made in a briefing given by four
leading Obama officials, where the condition of the briefing was that none of
the officials could be named (why not?) and all media outlets agreed to this
condition (why?).

Though the Task Force's final recommendations were delayed, it did release an
interim report (.pdf) which -- true to Obama's prior pledges -- envisions an
optional, three-tiered "system of justice" for imprisoning accused Terrorists,
to be determined by the Obama administration in each case:  (1) real trials in
real courts for some; (2) military commissions for others; and (3) indefinite
detention with no charges for the rest.  This memo is the first step towards
institutionalizing both a new scheme of preventive detention and Obama's version
of military commissions.

From this interim report, it's more apparent than ever that the central excuse
made by Obama defenders to justify preventive detention and military commissions
-- there are dangerous Terrorists who cannot be released but also cannot be
tried because Bush obtained the evidence against them via torture -- is an
absolute myth.  That's clear for multiple reasons:

First, the Task Force is formulating detention policy not only for detainees
already at Guantanamo, but also for future, not-yet-abducted detainees as well.
From the first paragraph of the memo (click image to enlarge):

The memo goes on to state that they are examining "what the rules and boundaries
should be for any future detentions under the law of war."  The anonymous Obama
officials emphasized in the briefing that "the goal . . .  is to build a
'durable and effective' framework for dealing with the detainees at Guantanamo
and future detainees captured in the fight against terrorists."

Nobody is talking about confining the power of preventive detention or military
commissions to current Guantanamo detainees who were tortured.  The opposite is
true:  this is to be a permanent, institutionalized detention scheme with the
power vested in the President going forward to imprison people with no charges.
Claiming this is necessary because of what Bush did to the 230 remaining
Guantanamo detainees is a total nonsequitur.  If, as Obama defenders claim, that
is really the justification, why will these powers apply well beyond that?  And
relatedly, as I've asked dozens of times with no answer:  how can Obama's
military commissions be a solution to the problem of torture-obtained evidence
when, according to Obama, those commissions -- exactly like federal courts --
also allegedly won't allow evidence obtained by torture?

Second, as a result of breathtakingly broad criminal laws in the U.S. defining
"material support for terrorism," there are few things easier than obtaining a
criminal conviction in federal court against people accused of being Terrorists.
Even if the only thing someone has done is joined a group decreed to be a
Terrorist organization, without even engaging in (or even planning) any violent
acts, federal prosecutors are well-armed to convict them.  In May, the DOJ
obtained a conviction in a federal court of a Somalian-Canadian on "material
support" charges for doing little more than expressing loyalty to Al Qaeda.  Two
other Americans of Somalian descent were just indicted on the same charge as a
result of their alleged membership in a "militant Islamic group," Shabaab.  The
FBI website even boasts:

    Since the 1990s, the U.S. Attorney's Office for the Southern District of New
    York (SDNY) has investigated and successfully prosecuted a wide range of
    international and domestic terrorism cases -- including the bombings of the
    World Trade Center and U.S. Embassies in East Africa in the 1990s. More
    recent cases include those against individuals who provided material support
    to al Qaeda and other terrorist groups, as well as against international
    arms trafficker Monzer al Kassar and the Somalian pirate charged in the
    hijacking of the Maersk Alabama.

To convict accused Terrorists in court, they need not engage in any violent
acts; any involvement with Al Qaeda or other Terrorist groups will suffice.  The
Task Force's interim report released yesterday itself recognized that the
Federal Government is already equipped with extremely broad powers to obtain
convictions of Terrorists in federal court:

If we can't even prove in a real court that someone has such minimal involvement
with a Terrorist group, then should we be imprisoning them indefinitely?  And if
the only evidence we have against them was obtained by torture -- evidence
which, one should recall, Democrats and progressives insist is unreliable --
then should we really seek to imprison them indefinitely based on such evidence?

Manifestly, this isn't about anything other than institutionalizing what has
clearly emerged as the central premise of the Obama Justice System:  picking and
choosing what level of due process each individual accused Terrorist is
accorded, to be determined exclusively by what process ensures that the state
will always win.   If they know they'll convict you in a real court proceeding,
they'll give you one; if they think they might lose there, they'll put you in a
military commission; if they're still not sure they will win, they'll just
indefinitely imprison you without any charges [a document accompanying the
interim report (.pdf) states:  "if the prosecution team concludes that
prosecution is not feasible in any forum, it may recommend that the case be
returned to the Executive Order 13492 Review for other appropriate
disposition"].  It's Kafkaesque show trials in their most perverse form:  the
outcome is pre-determined (guilty and imprisoned) and only the process changes.
That's especially true since, even where a miscalculation causes someone to be
tried but then acquitted, the power to detain them could still be asserted.

Just look at this intrinsically absurd declaration from the Memo:

For "enemy terrorists" who "have violated our criminal laws," the Obama
administration will give people trials "where feasible"  -- meaning where it's
definite that the Government will win.  If everyone the President wants to
imprison is going to end up in a cage no matter what -- remember:  we're not
going to release anyone the President decrees dangerous under any circumstances
-- then, other than creating a mirage of due process, what's the point of giving
some of them trials?  By definition, it's just all for show.  I quoted this once
before, but it's so apropos; this approach is exactly what is hauntingly
described as the Queen's justice in Chapter 12 of Alice in Wonderland:

    "Let the jury consider their verdict," the King said, for about the
    twentieth time that day.

    "No, no!" said the Queen. "Sentence first -- verdict afterward."

    "Stuff and nonsense!" said Alice loudly. "The idea of having the sentence
    first!"

    "Hold your tongue!" said the Queen, turning purple.

    "I won't!" said Alice.

    "Off with her head!" the Queen shouted at the top of her voice.

The Queen's pronouncement -- "Sentence first -- verdict afterward" -- is a fine
expression of Obama's approach here:  these prisoners are decreed to be
Dangerous and Guilty and are sentenced to prolonged, indefinite imprisonment and
must not be released; now let's tailor a process for each of them to ensure that
this verdict is produced.  It's far better to dispense with the ludicrous
facade, simply imprison everyone the President wants with no charges, and let
the world and the citizenry see what we're really doing.

Third, equally false is the Task Force's claim that Obama's military commissions
are nothing more than a continuation of longstanding military tradition and,
worse, that Obama's commissions resolve the objections long raised by Democrats
to Bush's military commissions.  Here's what the Task Force asserts in order to
make it seem like Obama's military commissions are perfectly normal and
consistent with past Democratic objections:

These claims are demonstrably false.  While it's true that the Bush/Cheney
military commissions were initiated with no Congressional authorized, the
commissions were eventually authorized by Congress when it passed the Military
Commissions Act of 2006 -- with the opposition of most Democrats, including
then-Sen. Obama.  As I documented at length here, Democratic objections to
Bush's military commissions -- including from key Obama officials -- were not
dependent upon any specific procedures, but were opposed to the entire idea of
military commissions themselves.  If anyone has any doubts about that, just go
read the excerpts I posted there from progressives, Democrats and leading
newspapers objecting to military commissions themselves, not to the specific
Bush/Cheney incarnation of them.  What happened to all of that?

The principal argument that was made in the Bush era was that military
commissions may be appropriate for standard wars between uniformed armies, but
not for the abduction of accused Terrorists far away from battlefields, which --
in terms of the potential both for error and abuse -- far more resemble the
apprehension of accused criminals.  A November, 2001 New York Times Editorial
said the "plan to use secret military tribunals to try terrorists is a dangerous
idea" because "by ruling that terrorists fall outside the norms of civilian and
military justice . . . . Mr. Bush has essentially discarded the rulebook of
American justice painstakingly assembled over the course of more than two
centuries."  The NYT argued: "American civilian courts have proved themselves
perfectly capable of handling terrorist cases."  During the 2004 campaign,
Obama's current Deputy Solicitor General Neal Katyal vowed that "a John Kerry
administration would scrap the military commissions now being used at Guantanamo
Bay and replace them with a system patterned on military courts-martial" and he
concluded:

    The danger with these commissions comes not only in their threat to our
    Constitution, and our standing in the world as a beacon of fairness, but
    also in their challenge to the perception of military justice. Our nation --
    whomever the next president may turn out to be -- should admit it made a
    mistake and return to using our powerful and fair system of courts martial
    -- a system that would generate swifter convictions of terrorists. As our
    nation's great Chief Justice John Marshall put it in 1803, ours is a
    "government of laws, and not of men."

Obama State Department counsel Harold Hongju Koh wrote in 2003 that creating
military commissions and/or using a new tribunal "are wrong because both rest on
the same faulty assumption: that our own federal courts cannot give full, fair
and swift justice in such a case," and argued: "No country with a well
functioning judicial system should hide its justice behind military
commissions." Senate Judiciary Committee Chairman Pat Leahy condemned all
military commissions, arguing:  "it sends a terrible message to the world that,
when confronted with a serious challenge, we lack confidence in the very
institutions we are fighting for- beginning with a justice system that is the
envy of the world."  And current Obama State Department official Anne-Marie
Slaughter said that, in the past, military commissions had "been used to try
spies that we find behind enemy lines" where "you can't ship them to national
court, so you provide a kind of rough battlefield justice in a commission," but
with the "War on Terror":  "That's not this situation. It's not remotely like
it."

In fact, the entire 2004 campaign the Democrats ran was based on the argument
that Terrorism should be treated far more like a law enforcement problem than a
"war."  John Kerry famously said:  "The war on terror is far less of a military
operation and far more of an intelligence-gathering law-enforcement operation."
After a series of Terrorist plots were disrupted using normal law-enforcement
means, even George Will wrote a column declaring that Kerry was right about
this.  That the extant system of American justice was perfectly adequate to try
accused Terrorists -- and that whole new systems of "justice" need not be
created in the name of so-called "war powers" -- was long a central plank of
Democratic and progressive objections to the Bush/Cheney approach to Terrorism.

What happened to all of that?  As of January 20, 2009, it seems to have
disappeared in a cloud of obfuscating smoke, replaced by chest-beating "war"-
rhetoric used to justify the creation of whole new "systems of justice" and,
worse, locking people up with no trial. Like all new powers vested in the
President, once this system is institutionalized, it will be virtually
impossible ever to abolish it, or even to prevent its continued expansion.

-- Glenn Greenwald

*


Washington Post --

July 21, 2009

REPORTS ON US DETENTION POLICY WILL BE DELAYED

by Peter Finn

http://www.washingtonpost.com/wp-dyn/content/
article/2009/07/20/AR2009072003578.html

The Obama administration is delaying completion of reports examining US
detention and interrogation policy, officials said Monday, in a sign of the
formidable issues it faces in grappling with how to handle terrorism suspects as
it prepares to close the military prison at Guantanamo Bay.

The work of a Justice Department-led task force, which had been scheduled to
send a report on detention policy to President Obama on Tuesday, will be
extended for six months, according to senior administration officials. A second
task force examining interrogation policy will get a two-month extension to
complete its work, which had also been due Tuesday.

"These are hard, complicated, consequential decisions," one official said in a
White House briefing in which four officials spoke to reporters on the condition
that the officials not be named. "What we are trying to do is to make sure that
we make the right decisions. And so they are looked at, they are reviewed and
re-reviewed. By teeing them up to the president, we want to make sure that we
have looked at every single angle, because he will challenge us on these
issues."

The officials said the administration remains committed to closing the prison in
Cuba by January 2010, as Obama ordered, but the delays are an indication of the
political and legal complexities of making good on the president's timeline.

Some of the Guantanamo Bay detainees may be deemed too dangerous to release but
also too difficult to prosecute in federal court or before a military
commission.

Officials said Monday that it is still unclear how many Guantanamo Bay prisoners
might be placed in some system of prolonged detention, and how that system might
be structured. But they said that Obama will seek congressional backing for any
system and not unilaterally assert his authority to hold detainees indefinitely
under the laws of war. Officials had previously said they were considering an
executive order to establish a system of indefinite detention.

"There is no intent in the administration to rely on anything other than
congressional authority," said one senior administration official. He said any
system of prolonged detention would include periodic follow-up reviews on
whether a detainee continued to pose a threat to national security.

A separate interagency task force is examining the cases of the 229 detainees
who remain at Guantanamo Bay, and is on track to complete its work by October.
Officials said more than half those cases have been reviewed, with
recommendations to transfer more than 50 detainees home or to third countries,
and to prosecute others.

While the task force report focusing on detention policy has been delayed,
officials released an interim report on Monday evening. It said the decision on
where to prosecute detainees will be made by lawyers from the Justice
Department's national security division, along with personnel from the Defense
Department, including military prosecutors. Various factors will be considered,
including the need to protect intelligence sources and methods, and "evidentiary
problems that might attend prosecution in the other jurisdiction," according to
the report.

The report does not specify what kind of evidentiary problems might arise. Human
rights groups argue that military commissions, even if restructured, offer a
lower standard of justice because of the ability, in some circumstances, to
allow in evidence obtained under duress.

The six-month delay in deciding on detention policy, coupled with the need to
craft and pass legislation, suggests that the closing of Guantanamo Bay will
come down to the wire. In separate interviews, some administration officials
have said they fear the closing date could slide.

One official said that, in its efforts to resettle detainees, the government is
making "good progress with a number of European countries and countries outside
of Europe." He cited, in particular, the Pacific island of Palau, which has
offered to settle Chinese Uighurs held at Guantanamo Bay who have been ordered
released by the courts. Four Uighurs have been resettled in Bermuda.

The official said some countries are willing to help the administration even
though Congress has barred the administration from resettling any detainees in
the United States.

"If there are constraints, that's the terrain we have to deal with, and we
will," one official said.

*


Washington Post

July 19, 2009

INTERNAL RIFTS ON ROAD TO TORMENT

Interviews Offer More Nuanced Look At Roles of CIA Contractors,
Concerns Of Officials During Interrogations

by Joby Warrick and Peter Finn

http://www.washingtonpost.com/wp-dyn/content/
article/2009/07/18/AR2009071802065.html

In April 2002, as the terrorism suspect known as Abu Zubaida lay in a Bangkok
hospital bed, top US counterterrorism officials gathered at CIA headquarters
in Langley, Va., for a series of meetings on an urgent problem: how to get him
to talk.

Put him in a cell filled with cadavers, was one suggestion, according to a
former US official with knowledge of the brainstorming sessions. Surround him
with naked women, was another. Jolt him with electric shocks to the teeth, was a
third.

One man's certitude lanced through the debate, according to a participant in one
of the meetings. James E. Mitchell, a retired clinical psychologist for the Air
Force, had studied al-Qaeda resistance techniques.

"The thing that will make him talk," the participant recalled Mitchell saying,
"is fear."

Now, as the Senate intelligence committee examines the CIA's interrogation
program, investigators are focusing in part on Mitchell and John "Bruce" Jessen,
former CIA contractors who helped design and oversee Abu Zubaida's
interrogation. These men have been portrayed as eager proponents of coercion,
but the former US official, whose account was corroborated in part by Justice
Department documents, said they also rejected orders from Langley to prolong the
most severe pressure on the detainee. The former official's account, alongside
the recollections of those familiar with events at the CIA's secret prison in
Thailand, yields a more nuanced understanding of their role than has previously
been available.

Interviews with nearly two dozen current and former US officials also provide
new evidence that the imposition of harsh techniques provoked dissension among
the officials charged with questioning Abu Zubaida, from the time of his capture
through the period when the most grueling torments were applied.

In August 2002, as the first anniversary of the Sept. 11, 2001, attacks
approached, officials at CIA headquarters became increasingly concerned that
they were not learning enough from their detainee in Thailand. When the
interrogators concluded that Abu Zubaida had no more to tell, Langley scolded
them: "You've lost your spine." If Mitchell and his team eased up and then al-
Qaeda attacked the United States again, agency managers warned, "it would be on
the team's back," recalled the former US official, who spoke on the condition
of anonymity to discuss classified information.

The officials who authorized or participated in harsh interrogations continue to
dispute how effective such methods were and whether important information could
have been obtained from Abu Zubaida and others without them. In March, The
Washington Post reported that former senior government officials said that not a
single significant plot was foiled as a result of Abu Zubaida's coerced
confessions.

The International Committee of the Red Cross, in a 2007 report made public this
year, said the application of harsh interrogation methods, "either singly or in
combination, constituted torture."

George Little, a CIA spokesman, said harsh interrogation was always "a small
fraction of the agency's counterterrorism mission." Now, he added, "the CIA is
focused not on the past, but on analyzing current terrorist threats and
thwarting terrorist plots."

Mitchell, 58, who remained a CIA contractor until this spring, declined to be
interviewed. In conversations with close colleagues in recent months, he has
rejected the popular portrayal of his role, maintaining that he steered the
agency away from far more brutal methods toward practices that would not cause
permanent harm to detainees.

Jessen, 60, declined to comment.

Yesterday, Mitchell issued a brief statement: "It may be easy for people who
were not there and didn't feel the pressure of the threats to say how much
better they could have done it. But they weren't there. We were and we did the
best that we could."
The 'Manchester Manual'

A silver-maned, voluble man, Mitchell had retired from the Air Force before the
Sept. 11 attacks and won several government contracts, including one from the
CIA to study ways to assess people who volunteered information to the agency.
While still in the military training program known as SERE -- for Survival,
Evasion, Resistance, Escape -- he and his colleagues called themselves "Masters
of the Mind [Expletive]," according to two military officials who worked in the
program.

In December 2001, the CIA asked Mitchell to analyze the "Manchester Manual," a
document seized in a raid in Britain that described al-Qaeda resistance
techniques. Mitchell asked Jessen, a senior SERE psychologist, to help prepare
the assessment, according to Senate investigators.

The Mitchell-Jessen memo, which was distributed widely within the CIA, discussed
the efficacy of techniques such as sleep deprivation and noise bombardment but
did not broach waterboarding.

"It is not realistic to think someone who is hardened will talk unless they fear
that something bad is going to happen to them," said the former US official,
describing Mitchell and Jessen's thinking. "They didn't think rapport-building
techniques would work. But they also didn't [advocate] using waterboarding right
away."

Mitchell told acquaintances that he also drew important lessons from the theory
of "learned helplessness," a term psychologists use to describe people or
animals reduced to a state of complete helplessness by some form of coercion or
pain, such as electric shock. Mitchell insisted, however, that coercive
interrogation should not reduce a prisoner to despair. Instead, he argued, "you
want them to have the view that something they could say would hold the key to
getting them out of the situation they were in," according to the former
official.

"If you convince [a terrorism suspect] he's helpless, he's no good to you," the
former official said.

A Breakthrough in Bangkok

In early April 2002, some officials at the CIA's Counterterrorist Center were
not convinced that the man in US custody was indeed Zayn al-Abidin Muhammed
Hussein, Abu Zubaida's given name. The Saudi-born Palestinian, then 29, had been
sought by the FBI on suspicion that he played a role in a foiled 1999 plan to
attack Los Angeles International Airport and tourist destinations in Jordan.

The detainee had been captured in Pakistan in late March 2002 after a firefight
that left him wounded in the thigh, groin and stomach. After being treated in
Pakistan, he was flown to Thailand for interrogation.

The CIA dispatched FBI agents Ali Soufan and Steve Gaudin for an initial look.
The two men arrived a few hours before the wounded man was transferred to a
hastily assembled CIA interrogation facility near one of Bangkok's airports.

Details of their experience and that of the CIA officials who followed them to
Thailand with Mitchell were gleaned from public testimony, official documents
and interviews with current and former intelligence and law-enforcement
officials with access to confidential files. Through the FBI, Gaudin declined to
comment for this article, and Soufan referred reporters to his congressional
testimony and other public statements.

Soufan, a Lebanese American, later described the FBI's method as "informed
interrogation." It was based on "leveraging our knowledge of the detainee's
culture and mind-set, together with using information we already know about
him," he told a Senate panel in May.

On the agents' first night in Thailand, Abu Zubaida went into septic shock
because of his wounds and was rushed to a local hospital. Gaudin and Soufan
dabbed his lips with ice, told him to ask God for strength and cleaned him up
after he soiled himself, according to official documents and interviews.

At his bedside, Gaudin asked Soufan to show Abu Zubaida a photograph of Abdullah
Ahmed Abdullah, an Egyptian suspect in the bombings of two US embassies in
Africa in 1998. The two agents had photos of terrorism suspects on a handheld
computer, and Gaudin accidentally displayed the wrong photo.

Abu Zubaida said: "This is Mukhtar. This is the mastermind of 9/11."

The agents did not know that Mukhtar, a name that had surfaced in some raw
intelligence and an Osama bin Laden video, was a nickname for Khalid Sheik
Mohammed. Nor did they know that Mohammed was an al-Qaeda member.

Abu Zubaida had given the agents the first positive link to the man who would
later be charged as the chief planner of the Sept. 11 attacks.
'Creating the Atmosphere'

With the FBI's breakthrough, the CIA recognized that the captured man was indeed
Abu Zubaida and began assembling a team to send to Thailand. Agency officials
had no firm notion of what a post-Sept. 11 interrogation of a terrorism suspect
should look like.

"It was not a job we sought out," said one former senior intelligence official
involved in early decisions on interrogation. "The generals didn't want to do
it. The FBI said no. It fell to the agency because we had the [legal]
authorities and could operate overseas."

In Mitchell, the CIA found an authoritative professional who had answers,
despite an absence of practical experience in interrogating terrorism suspects
or data showing that harsh tactics work.

"Here was a guy with a title and a shingle," recalled the participant in the
Langley meeting, "and he was saying things that others in the room already
believed to be true."

Mitchell boarded a CIA plane for Bangkok with R. Scott Shumate, a CIA
psychologist; two agency officers who worked undercover; and a small team of
analysts and support staff, including security personnel to control Abu Zubaida.

Among those on the plane was an agency expert on interrogation and debriefing,
an officer who was part of a training program intended to help the agency detect
double agents and assess recruits for foreign espionage. The trainers taught
strategies for extracting sensitive information but prohibited coercive tactics.

When Mitchell and the CIA team arrived in Thailand, Abu Zubaida was still in the
hospital. The two FBI agents, Soufan and Gaudin, met the CIA officers at a
nearby hotel for a debriefing.

Although senior CIA officials in Bangkok were nominally in charge, they deferred
to Mitchell, according to several sources familiar with events at the prison.

"There was a big sense of arrogance about him," one source said.

After Abu Zubaida was discharged, the FBI was shut out of the interrogations as
Mitchell began establishing the conditions for Abu Zubaida's interrogation --
"creating the atmosphere," as he put it to colleagues.

In the initial stages, Abu Zubaida was stripped of his clothes while CIA
officers took turns at low-intensity questioning. Later, Mitchell added sleep
deprivation and a constant bombardment of loud music, including tracks by the
Red Hot Chili Peppers. After each escalation, he would dispatch an interrogator
into Abu Zubaida's cell to issue a single demand: "Tell me what I want to know."

Mitchell sometimes spoke directly to the prisoner, but unlike the CIA officers,
he wore a mask, according to two sources familiar with the events in Thailand.

He repeatedly sought authorization from the CIA's Counterterrorist Center for
his actions.

"The program was fully put together, vetted and run by the counterterrorism
folks at the agency," the former US official said. "CIA headquarters was
involved directly in every detail of interrogation. Permission had to be
obtained before every technique was used, and the dialogue was very heavy. There
were cables and also an IM system. All Mitchell's communications were with the
Counterterrorist Center."

In Bangkok, word circulated among those at the secret site that the tactics had
been approved "downtown" -- agency jargon for the White House.
Escalating Torment

Soufan testified to Congress in May that Abu Zubaida went silent once Mitchell
took charge. Within days of the CIA team's arrival, the cables between Bangkok
and Langley became devoid of new revelations. Agency officials decided to let
the FBI back into the interrogations, but on the condition that forced nudity
and sleep deprivation be allowed to continue.

The CIA team lowered the temperature in Abu Zubaida's cell until the detainee
turned blue. The FBI turned it back up, setting off a clash over tactics.

Under FBI questioning, Abu Zubaida identified an operative he knew as Abdullah
al-Mujahir, the alias, he said, of an American citizen with a Latino name. An
investigation involving multiple agencies identified the suspect as Jose
Padilla, the al-Qaeda operative later convicted of providing material support
for terrorism.

"In two different bits, after sleep deprivation, is when Abu Zubaida gave clues
about who Padilla might be," the former US official said. "When that was put
together with other CIA sources, they were able to identify who he was. . . .
The cables will not show that the FBI just asked friendly questions and got
information about Padilla."

As more miseries were heaped on Abu Zubaida, some members of the CIA team joined
the FBI agents in pushing back. Among them was Shumate, the CIA psychologist,
who voiced regret that he had played a role in recommending Mitchell to the
agency, former associates said. Shumate did not return phone calls and e-mails
seeking comment.

Soufan later told Justice Department investigators examining the FBI's role in
detainee interrogations that he viewed Mitchell's early methods as "borderline
torture."

In addition, one of the CIA team members told others in the group that he
believed Abu Zubaida was being honest when he claimed to know nothing about
significant al-Qaeda plots, according to two officials with access to classified
reports.

Although Abu Zubaida was not a member of al-Qaeda and had limited relations with
bin Laden, he was a font of information on the membership of the terrorist group
because of his long-standing ties with Mohammed and North African jihadists,
according to former intelligence and law-enforcement officials who have read his
files. Abu Zubaida's attorneys maintain that he had no connection with al-Qaeda.

"You've got it all wrong," the detainee told one interrogator in May 2002,
according to a former intelligence official with access to sensitive records.
Abu Zubaida said that al-Qaeda had been surprised at the devastating efficacy of
the Sept. 11 attacks and that any plans for future attacks were mere
aspirations.

Abu Zubaida was lying but eventually would disclose everything, Mitchell
asserted to his colleagues, citing his backers at the Counterterrorist Center.
He repeated that his methods had been approved "at the highest levels," one of
the interrogators later told the Justice Department investigators.

At the secret prison, dissent over Mitchell's methods peaked. First Shumate
left, followed by Soufan. At the site, Shumate had expressed concerns about
sleep deprivation, and back in Langley he complained again about Mitchell's
tactics, according to the former US official and another source familiar with
events in Thailand.

Then one of the CIA debriefers left. In early June, Gaudin flew to Washington
for a meeting on what was happening in Thailand, and the FBI did not allow him
to return.

Jessen, newly retired from the military, arrived in Thailand that month.
Mitchell and his partner continued to ratchet up the pressure on Abu Zubaida,
although Bush administration lawyers had not yet authorized the CIA's harshest
interrogation measures. That came verbally in late July and then in writing on
Aug. 1, paving the way to new torments.

Interrogators wrapped a towel around Abu Zubaida's neck and slammed him into a
plywood wall mounted in his cell. He was slapped in the face. He was placed in a
coffin-like wooden box in which he was forced to crouch, with no light and a
restricted air supply, he later told delegates from the Red Cross.

Finally, he was waterboarded.

Abu Zubaida told the Red Cross that a black cloth was placed over his face and
that interrogators used a plastic bottle to pour water on the fabric, creating
the sensation that he was drowning.

The former US official said that waterboarding forced Abu Zubaida to reveal
information that led to the Sept. 11, 2002, capture of Ramzi Binalshibh, the key
liaison between the Hamburg cell led by Sept. 11 hijacker Mohammed Atta and al-
Qaeda's leadership in Afghanistan.

But others contend that Binalshibh's arrest was the result of several pieces of
intelligence, including the successful interrogation by the FBI of a suspect
held at Bagram air base in Afghanistan who had been in contact via satellite
phone with Binalshibh, as well as information gleaned from an interview
Binalshibh gave to the television network al-Jazeera.

Abu Zubaida was waterboarded 83 times over four or five days, and Mitchell and
Jessen concluded that the prisoner was broken, the former US official said.
"They became convinced that he was cooperating. There was unanimity within the
team."

One More Time

CIA officials at the Counterterrorist Center were not convinced.

"Headquarters was sending daily harangues, cables, e-mails insisting that
waterboarding continue for 30 days because another attack was believed to be
imminent," the former official said. "Headquarters said it would be on the
team's back if an attack happened. They said to the interrogation team, 'You've
lost your spine.' "

Mitchell and Jessen now found themselves in the same position as Soufan, Shumate
and others.

"It was hard on them, too," the former US official said. "They are
psychologists. They didn't enjoy this at all."

The two men threatened to quit if the waterboarding continued and insisted that
officials from Langley come to Thailand to watch the procedure, the former
official said.

After a CIA delegation arrived, Abu Zubaida was strapped down one more time. As
water poured over his cloth-covered mouth, he gasped for breath. "They all
watched, and then they all agreed to stop," the former official said.

A 2005 Justice Department memo released this year confirmed the visit. "These
officials," the memo said, "reported that enhanced techniques were no longer
needed."

[ Staff writers Walter Pincus and R. Jeffrey Smith and staff researcher Julie
Tate contributed to this report. ]

*


Wall Street Journal  --

July 14, 2009

CIA HAD SECRET AL QAEDA PLAN

Initiative at Heart of Spat With Congress
Examined Ways to Seize, Kill Terror Chiefs

By Siobhan Gorman

http://online.wsj.com/article/SB124736381913627661.html

WASHINGTON -- A secret Central Intelligence Agency initiative terminated by
Director Leon Panetta was an attempt to carry out a 2001 presidential
authorization to capture or kill al Qaeda operatives, according to former
intelligence officials familiar with the matter.

The precise nature of the highly classified effort isn't clear, and the CIA
won't comment on its substance.

According to current and former government officials, the agency spent money on
planning and possibly some training. It was acting on a 2001 presidential legal
pronouncement, known as a finding, which authorized the CIA to pursue such
efforts. The initiative hadn't become fully operational at the time Mr. Panetta
ended it.

In 2001, the CIA also examined the subject of targeted assassinations of al
Qaeda leaders, according to three former intelligence officials. It appears that
those discussions tapered off within six months. It isn't clear whether they
were an early part of the CIA initiative that Mr. Panetta stopped.

The revelations about the CIA and its post-9/11 activities have emerged amid a
renewed fight between the agency and congressional Democrats. Last week, seven
Democratic lawmakers on the House Intelligence Committee released a letter that
talked about the CIA effort, which they said Mr. Panetta acknowledged hadn't
been properly vetted with Congress. CIA officials had brought the matter to Mr.
Panetta's attention and had recommended he inform Congress.

Neither Mr. Panetta nor the lawmakers provided details. Mr. Panetta quashed the
CIA effort after learning about it June 23.

The battle is part of a long-running tug of war between the executive branch and
the legislature about how to oversee the activities of the country's
intelligence services and how extensively the CIA should brief Congress. In
recent years, in the light of revelations over CIA secret prisons and harsh
interrogation techniques, Congress has pushed for greater oversight. The Obama
administration, much like its predecessor, is resisting any moves in that
direction.

Most recently, House Speaker Nancy Pelosi, in a dispute over what she knew about
the use of waterboarding in interrogating terror suspects, has accused the
agency of lying to lawmakers about its operations.

Republicans on the panel say that the CIA effort didn't advance to a point where
Congress clearly should have been notified.

CIA spokesman Paul Gimigliano said the agency "has not commented on the
substance of the effort." He added that "a candid dialogue with Congress is very
important to this director and this agency."

One former senior intelligence official said the program was an attempt "to
achieve a capacity to carry out something that was directed in the finding,"
meaning it was looking for ways to capture or kill al Qaeda chieftains.

The official noted that Congress had long been briefed on the finding, and that
the CIA effort wasn't so much a program as "many ideas suggested over the course
of years." It hadn't come close to fruition, he added.

Michigan Rep. Pete Hoekstra, the top Republican on the House Intelligence
Committee, said little had been spent on the efforts -- closer to $1 million
than $50 million. "The idea for this kind of program was tossed around in fits
and starts," he said.

Senior CIA leaders were briefed two or three times on the most recent iteration
of the initiative, the last time in the spring of 2008. At that time, CIA brass
said that the effort should be narrowed and that Congress should be briefed if
the preparations reached a critical stage, a former senior intelligence official
said.

Amid the high alert following the Sept. 11 terrorist attacks, a small CIA unit
examined the potential for targeted assassinations of al Qaeda operatives,
according to the three former officials. The Ford administration had banned
assassinations in the response to investigations into intelligence abuses in the
1970s. Some officials who advocated the approach were seeking to build teams of
CIA and military Special Forces commandos to emulate what the Israelis did after
the Munich Olympics terrorist attacks, said another former intelligence
official.

"It was straight out of the movies," one of the former intelligence officials
said. "It was like: Let's kill them all."

The former official said he had been told that President George W. Bush and Vice
President Dick Cheney didn't support such an operation. The effort appeared to
die out after about six months, he said.

Former CIA Director George Tenet, who led the agency in the aftermath of the
2001 attacks, declined through a spokesman to comment.

Also in September 2001, as CIA operatives were preparing for an offensive in
Afghanistan, officials drafted cables that would have authorized assassinations
of specified targets on the spot.

One draft cable, later scrapped, authorized officers on the ground to "kill on
sight" certain al Qaeda targets, according to one person who saw it. The context
of the memo suggested it was designed for the most senior leaders in al Qaeda,
this person said.

Eventually Mr. Bush issued the finding that authorized the capturing of several
top al Qaeda leaders, and allowed officers to kill the targets if capturing
proved too dangerous or risky.

Lawmakers first learned specifics of the CIA initiative the day after Mr.
Panetta did, when he briefed them on it for 45 minutes.

House lawmakers are now making preparations for an investigation into "an
important program" and why Congress wasn't told about it, said Rep. Jan
Schakowsky, an Illinois Democrat, in an interview.

On Sunday, lawmakers criticized the Bush administration's decision not to tell
Congress. Senate Intelligence Committee Chairman Dianne Feinstein, a Democrat
from California, hinted that the Bush administration may have broken the law by
not telling Congress.

"We were kept in the dark. That's something that should never, ever happen
again," she said. Withholding such information from Congress, she said, "is a
big problem, because the law is very clear."

Ms. Feinstein said Mr. Panetta told the lawmakers that Mr. Cheney had ordered
that the information be withheld from Congress. Mr. Cheney on Sunday couldn't be
reached for comment through former White House aides.

The Senate's second-ranking official, Democratic Sen. Dick Durbin of Illinois,
and Vermont Democratic Sen. Patrick Leahy, chairman of the Senate Judiciary
Committee, echoed those concerns and called for an investigation, an indication
of how the politics of intelligence continue to bedevil the CIA.

Separately, Attorney General Eric Holder is considering whether to order a
criminal probe into whether treatment of terrorism detainees exceeded guidelines
set by the Justice Department, administration officials said.

President Barack Obama and Mr. Holder have said they don't favor prosecuting
lawyers who wrote legal justifications for interrogation methods that the
president and his attorney general have declared to be torture. They have sought
to protect CIA officers who followed the legal guidelines.

"The Department of Justice will follow the facts and the law with respect to any
matter," said Matthew Miller, a department spokesman. "We have made no decisions
on investigations or prosecutions, including whether to appoint a prosecutor to
conduct further inquiry."

[ Evan Perez and Elizabeth Williamson contributed to this article. Write to
Siobhan Gorman at siobhan.gorman@wsj.com ]

*


NEWSWEEK --

July 11, 2009 [ issue of July 20, 2009 ]

INDEPENDENT'S DAY

Obama doesn't want to look back, but Attorney General Eric Holder may probe
Bush-era torture anyway.

by Daniel Klaidman

http://www.newsweek.com/id/206300

It's the morning after Independence Day, and Eric Holder Jr. is feeling the
weight of history. The night before, he'd stood on the roof of the White House
alongside the president of the United States, leaning over a railing to watch
fireworks burst over the Mall, the monuments to Lincoln and Washington aglow at
either end. "I was so struck by the fact that for the first time in history an
African-American was presiding over this celebration of what our nation is all
about," he says. Now, sitting at his kitchen table in jeans and a gray polo
shirt, as his 11-year-old son, Buddy, dashes in and out of the room, Holder is
reflecting on his own role. He doesn't dwell on the fact that he's the country's
first black attorney general. He is focused instead on the tension that the best
of his predecessors have confronted: how does one faithfully serve both the law
and the president?

Alone among cabinet officers, attorneys general are partisan appointees expected
to rise above partisanship. All struggle to find a happy medium between loyalty
and independence. Few succeed. At one extreme looms Alberto Gonzales, who
allowed the Justice Department to be run like Tammany Hall. At the other is
Janet Reno, whose righteousness and folksy eccentricities marginalized her
within the Clinton administration. Lean too far one way and you corrupt the
office, too far the other way and you render yourself impotent. Mindful of
history, Holder is trying to get the balance right. "You have the responsibility
of enforcing the nation's laws, and you have to be seen as neutral, detached,
and nonpartisan in that effort," Holder says. "But the reality of being A.G. is
that I'm also part of the president's team. I want the president to succeed; I
campaigned for him. I share his world view and values."

These are not just the philosophical musings of a new attorney general. Holder,
58, may be on the verge of asserting his independence in a profound way. Four
knowledgeable sources tell NEWSWEEK that he is now leaning toward appointing a
prosecutor to investigate the Bush administration's brutal interrogation
practices, something the president has been reluctant to do. While no final
decision has been made, an announcement could come in a matter of weeks, say
these sources, who decline to be identified discussing a sensitive law-
enforcement matter. Such a decision would roil the country, would likely plunge
Washington into a new round of partisan warfare, and could even imperil Obama's
domestic priorities, including health care and energy reform. Holder knows all
this, and he has been wrestling with the question for months. "I hope that
whatever decision I make would not have a negative impact on the president's
agenda," he says. "But that can't be a part of my decision."

Holder is not a natural renegade. His first instinct is to shy away from
confrontation, to search for common ground. If he disagrees with you, he's
likely to compliment you first before staking out an opposing position. "Now,
you see, that's interesting," he'll begin, gently. As a trial judge in
Washington, D.C., in the late 1980s and early '90s, he was known as a tough
sentencer ("Hold-'em Holder"). But he even managed to win over convicts he was
putting behind bars. "As a judge, he had a natural grace," recalls Reid
Weingarten, a former Justice Department colleague and a close friend. "He was so
sensitive when he sent someone off to prison, the guy would thank him." Holder
acknowledges that he struggles against a tendency to please, that he's had to
learn to be more assertive over the years. "The thing I have to watch out for is
the desire to be a team player," he says, well aware that he's on the verge of
becoming something else entirely.

When Holder and his wife, Sharon Malone, glide into a dinner party they change
the atmosphere. In a town famous for its drabness, they're an attractive,
poised, and uncommonly elegant pair -- not unlike the new first couple. But
they're also a study in contrasts. Holder is disarmingly grounded, with none of
the false humility that usually signals vanity in a Washington player. He
plunges into conversation with a smile, utterly comfortable in his skin. His
wife, at first, is more guarded. She grew up in the Deep South under Jim Crow --
her sister, Vivian Malone Jones, integrated the University of Alabama -- and has
a fierce sense of right and wrong. At a recent dinner in a leafy corner of
Bethesda, Malone drew a direct line from the sins of America's racial past to
the abuses of the Guantanamo Bay detention center. Both are examples of "what we
have not done in the face of injustice," she said at one point, her Southern
accent becoming more discernible as her voice rose with indignation. At the same
party, Holder praised the Bush administration for setting up an "effective
antiterror infrastructure."

Malone traces many of their differences to their divergent upbringings. "His
parents are from the West Indies..he experienced a kinder, gentler version of
the black experience," she says. Holder grew up in East Elmhurst, Queens, a
lower-middle-class neighborhood in the shadow of New York's La Guardia Airport.
The neighborhood has long been a steppingstone for immigrants, but also
attracted blacks moving north during the Great Migration. When Holder was
growing up in the 1950s, there were fewer houses -- mostly semi-detached
clapboard and brick homes, like the one his family owned on the corner of 101st
Street and 24th Avenue -- and more trees. Today the neighborhood is dominated by
Mexican, Dominican and South Asian families, with a diminishing number of West
Indians and African-Americans.

As we walk up 24th on a recent Saturday, Holder describes for me a happy and
largely drama-free childhood. The family was comfortable enough. His father,
Eric Sr., was in real estate and owned a few small buildings in Harlem. His
mother, Miriam, stayed at home and doted on her two sons. Little Ricky, as he
was known, was bright, athletic, and good-natured. As we walk past the baseball
diamond where Holder played center field, he recalls how he used to occasionally
catch glimpses of Willie Mays leaving or entering his mansion on nearby Ditmas
Boulevard. Arriving at the basketball courts of PS 127, Holder bumps into a
couple of old schoolyard buddies, greets them with a soul handshake and falls
into an easy banter, reminiscing about "back in the day" when they dominated the
hardcourt. "Ancient history," says Jeff Aubry, now a state assemblyman. "When
gods walked the earth," responds Holder, who dunked for the first time on these
courts at age 16.

Holder doesn't dispute the idea that his happy upbringing has led to a generally
sunny view of the world. "I grew up in a stable neighborhood in a stable, two-
parent family, and I never really saw the reality of racism or felt the
insecurity that comes with it," he says. "That edge that Sharon's got -- I don't
have it. She's more suspicious of people. I am more trusting." There's a pause,
and then, with a weary chuckle, one signaling gravity rather than levity, Holder
says, "Lesson learned." And then adds, under his breath: "Marc Rich."

The name of the fugitive financier pardoned -- with Holder's blessing -- at the
tail end of the Clinton administration still gnaws at him. It isn't hard to see
why. As a Justice Department lawyer, Holder made a name for himself prosecuting
corrupt politicians and judges. He began his career in 1976, straight out of
Columbia Law School, in the Justice Department's Public Integrity Section, where
prosecutors are imbued with a sense of rectitude and learn to fend off political
interference. And though Holder has bluntly acknowledged that he "blew it," the
Rich decision haunts him. Given his professional roots, he says, "the notion
that you would take actions based on political considerations runs counter to
everything in my DNA." Aides say that his recent confirmation hearings, which
aired the details of the Rich pardon, were in a way liberating; he aspires to no
higher office and is now free to be his own man. But his wife says that part of
what drives him today is a continuing hunger for redemption.

When I ask Malone the inevitable questions about Rich, she looks pained. "It was
awful; it was a terrible time," she says. But she also casts the episode as a
lesson about character, arguing that her husband's trusting nature was exploited
by Rich's conniving lawyers. "Eric sees himself as the nice guy. In a lot of
ways that's a good thing. He's always saying, 'You get more out of people with
kindness than meanness.' But when he leaves the 'nice guy' behind, that's when
he's strongest."

Any White House tests an attorney general's strength. But one run by Rahm
Emanuel requires a particular brand of fortitude. A legendary enforcer of
presidential will, Emanuel relentlessly tries to anticipate political threats
that could harm his boss. He hates surprises. That makes the Justice Department,
with its independent mandate, an inherently nervous-making place for Emanuel.
During the first Clinton administration, he was famous for blitzing Justice
officials with phone calls, obsessively trying to gather intelligence, plant
policy ideas, and generally keep tabs on the department.

One of his main interlocutors back then was Holder. With Reno marginalized by
the Clintonites, Holder, then serving as deputy attorney general, became the
White House's main channel to Justice. A mutual respect developed between the
two men, and an affection endures to this day. (Malone, a well-regarded ob-gyn,
delivered one of Emanuel's kids.) "Rahm's style is often misunderstood," says
Holder. "He brings a rigor and a discipline that is a net plus to this
administration." For his part, Emanuel calls Holder a "strong, independent
attorney general." But Emanuel's agitated presence hangs over the building --
"the wrath of Rahm," one Justice lawyer calls it -- and he is clearly on the
minds of Holder and his aides as they weigh whether to launch a probe into the
Bush administration's interrogation policies.

Holder began to review those policies in April. As he pored over reports and
listened to briefings, he became increasingly troubled. There were startling
indications that some interrogators had gone far beyond what had been authorized
in the legal opinions issued by the Justice Department, which were themselves
controversial. He told one intimate that what he saw "turned my stomach."

It was soon clear to Holder that he might have to launch an investigation to
determine whether crimes were committed under the Bush administration and
prosecutions warranted. The obstacles were obvious. For a new administration to
reach back and investigate its predecessor is rare, if not unprecedented. After
having been deeply involved in the decision to authorize Ken Starr to
investigate Bill Clinton's affair with Monica Lewinsky, Holder well knew how
politicized things could get. He worried about the impact on the CIA, whose
operatives would be at the center of any probe. And he could clearly read the
signals coming out of the White House. President Obama had already deflected the
left wing of his party and human-rights organizations by saying, "We should be
looking forward and not backwards" when it came to Bush-era abuses.

Still, Holder couldn't shake what he had learned in reports about the treatment
of prisoners at the CIA's "black sites." If the public knew the details, he and
his aides figured, there would be a groundswell of support for an independent
probe. He raised with his staff the possibility of appointing a prosecutor.
According to three sources familiar with the process, they discussed several
potential choices and the criteria for such a sensitive investigation. Holder
was looking for someone with "gravitas and grit," according to one of these
sources, all of whom declined to be named. At one point, an aide joked that
Holder might need to clone Patrick Fitzgerald, the hard-charging, independent-
minded US attorney who had prosecuted Scooter Libby in the Plamegate affair.
In the end, Holder asked for a list of 10 candidates, five from within the
Justice Department and five from outside.

On April 15 the attorney general traveled to West Point, where he had been
invited to give a speech dedicating the military academy's new Center for the
Rule of Law. As he mingled with cadets before his speech, Holder's aides
furiously worked their BlackBerrys, trying to find out what was happening back
in Washington. For weeks Holder had participated in a contentious internal
debate over whether the Obama administration should release the Bush-era legal
opinions that had authorized waterboarding and other harsh interrogation
methods. He had argued to administration officials that "if you don't release
the memos, you'll own the policy." CIA Director Leon Panetta, a shrewd political
operator, countered that full disclosure would damage the government's ability
to recruit spies and harm national security; he pushed to release only heavily
redacted versions.

Holder and his aides thought they'd been losing the internal battle. What they
didn't know was that, at that very moment, Obama was staging a mock debate in
Emanuel's office in order to come to a final decision. In his address to the
cadets, Holder cited George Washington's admonition at the Battle of Trenton,
Christmas 1776, that "captive British soldiers were to be treated with humanity,
regardless of how Colonial soldiers captured in battle might be treated." As
Holder flew back to Washington on the FBI's Cessna Citation, Obama reached his
decision. The memos would be released in full.

Holder and his team celebrated quietly, and waited for national outrage to
build. But they'd miscalculated. The memos had already received such public
notoriety that the new details in them did not shock many people. (Even the
revelation, a few days later, that 9/11 mastermind Khalid Sheikh Mohammed and
another detainee had been waterboarded hundreds of times did not drastically
alter the contours of the story.) And the White House certainly did its part to
head off further controversy. On the Sunday after the memos were revealed,
Emanuel appeared on This Week With George Stephanopoulos and declared that there
would be no prosecutions of CIA operatives who had acted in good faith with the
guidance they were given. In his statement announcing the release of the memos,
Obama said, "This is a time for reflection, not retribution." (Throughout,
however, he has been careful to say that the final decision is the attorney
general's to make.)

Emanuel and other administration officials could see that the politics of
national security was turning against them. When I interviewed a senior White
House official in early April, he remarked that Republicans had figured out that
they could attack Obama on these issues essentially free of cost. "The genius of
the Obama presidency so far has been an ability to keep social issues off the
docket," he said. "But now the Republicans have found their dream-issue and they
have nothing to lose."

Emanuel's response to the torture memos should not have surprised Holder. In the
months since the inauguration, the relationship between the Justice Department
and the White House had been marred by surprising tension and acrimony. A
certain amount of friction is inherent in the relationship, even healthy. But in
the Obama administration the bad blood between the camps has at times been
striking. The first detonation occurred in only the third week of the
administration, soon after a Justice lawyer walked into a courtroom in
California and argued that a lawsuit, brought by a British detainee who was
alleging torture, should have been thrown out on national-security grounds. By
invoking the "state secrets" privilege, the lawyer was reaffirming a position
staked out by the Bush administration. The move provoked an uproar among
liberals and human-rights groups. It also infuriated Obama, who learned about it
from the front page of The New York Times. "This is not the way I like to make
decisions," he icily told aides, according to two administration officials, who
declined to be identified discussing the president's private reactions. White
House officials were livid and accused the Justice Department of sandbagging the
president. Justice officials countered that they'd notified the White House
counsel's office about the position they had planned to take.

Other missteps were made directly by Holder. Early on, he gave a speech on race
relations in honor of Black History Month. He used the infelicitous phrase
"nation of cowards" to describe the hair trigger that Americans are on when it
comes to race. The quote churned through the cable conversation for a couple of
news cycles and caused significant heartburn at the White House; Holder had not
vetted the language with his staff. A few weeks later, he told reporters he
planned to push for reinstating the ban on assault weapons, which had expired in
2004. He was simply repeating a position that Obama had taken on numerous
occasions during the campaign, but at a time when the White House was desperate
to win over pro-gun moderate Democrats in Congress. "It's not what we wanted to
talk about," said one annoyed White House official, who declined to be
identified criticizing the attorney general.

The miscues began to reinforce a narrative that Justice has had a hard time
shaking. White House officials have complained that Holder and his staff are not
sufficiently attuned to their political needs. Holder is well liked inside the
department. His relaxed, unpretentious style -- on a flight to Rome in May for a
meeting of justice ministers, he popped out of his cabin with his iPod on,
mimicking Bobby Darin performing "Beyond the Sea" -- has bred tremendous loyalty
among his personal staff. But that staff is largely made up of veteran
prosecutors and lawyers whom Holder has known and worked with for years. They do
not see the president's political fortunes as their primary concern. Among some
White House officials there is a not-too-subtle undertone suggesting that Holder
has "overlearned the lessons of Marc Rich," as one administration official said
to me.

The tensions came to a head in June. By then, Congress was in full revolt over
the prospect of Gitmo detainees being transferred to the United States, and the
Senate had already voted to block funding to shut down Guantanamo. On the
afternoon of June 3, a White House official called Holder's office to let him
know that a compromise had been reached with Senate Democrats. The deal had been
cut without input from Justice, according to three department officials who did
not want to be identified discussing internal matters, and it imposed onerous
restrictions that would make it harder to move detainees from Cuba to the United
States.

Especially galling was the fact that the White House then asked Holder to go up
to the Hill that evening to meet with Senate Democrats and bless the deal.
Holder declined -- a snub in the delicate dance of Washington politics -- and
in-stead dispatched the deputy attorney general in his place. Ultimately the
measure passed, despite Justice's objections. Obama aides deny that they left
Holder out of the loop. "There was no decision to cut them out, and they were
not cut out," says one White House official. "That's a misunderstanding."

Holder is clearly not looking to have a contentious relationship with the White
House. It's not his nature, and he knows it's not smart politics. His desire to
get along has proved useful in his career before, and may now. Emanuel
attributes any early problems to the fact that "everyone was getting their sea
legs," and insists things have been patched up. "It's not like we're all sitting
around singing 'Kumbaya,' " he says, but he insists that Obama got in Holder
exactly what he wanted: "a strong, independent leader."

There's an obvious affinity between Holder and the man who appointed him to be
the first black attorney general of the United States. They are both black men
raised outside the conventional African-American tradition who worked their way
to the top of the meritocracy. They are lawyers committed to translating the law
into justice. Having spent most of their adult lives in the public arena, both
know intimately the tug of war between principle and pragmatism. Obama, Holder
says confidently, "understands the nature of what we do at the Justice
Department in a way no recent president has. He's a damn good lawyer, and he
understands the value of having an independent attorney general."

The next few weeks, though, could test Holder's confidence. After the prospect
of torture investigations seemed to lose momentum in April, the attorney general
and his aides turned to other pressing issues. They were preoccupied with Gitmo,
developing a hugely complex new set of detention and prosecution policies, and
putting out the daily fires that go along with running a 110,000-person
department. The regular meetings Holder's team had been having on the torture
question died down. Some aides began to wonder whether the idea of appointing a
prosecutor was off the table.

But in late June Holder asked an aide for a copy of the CIA inspector general's
thick classified report on interrogation abuses. He cleared his schedule and,
over two days, holed up alone in his Justice Depart ment office, immersed
himself in what Dick Cheney once referred to as "the dark side." He read the
report twice, the first time as a lawyer, looking for evidence and instances of
transgressions that might call for prosecution. The second time, he started to
absorb what he was reading at a more emotional level. He was "shocked and
saddened," he told a friend, by what government servants were alleged to have
done in America's name. When he was done he stood at his window for a long time,
staring at Constitution Avenue.

*


New York Times

July 10, 2009

US SAID TO HAVE AVERTED INQUIRY INTO '01 AFGHAN KILLINGS

by James Risen

http://www.nytimes.com/2009/07/11/world/asia/11afghan.html

WASHINGTON -- After a mass killing of hundreds, perhaps thousands, of Taliban
prisoners of war by the forces of an American-backed warlord during the 2001
invasion of Afghanistan, Bush administration officials repeatedly discouraged
efforts to investigate the episode, according to government officials and human
rights organizations.

American officials had been reluctant to pursue an investigation -- sought by
officials from the FBI, the State Department, the Red Cross and human rights
groups -- because the warlord, Gen. Abdul Rashid Dostum, was on the payroll of
the CIA and his militia worked closely with United States Special Forces in
2001, several officials said. They said the United States also worried about
undermining the American-supported government of President Hamid Karzai, in
which General Dostum had served as a defense official.

"At the White House, nobody said no to an investigation, but nobody ever said
yes, either," said Pierre Prosper, the former American ambassador for war crimes
issues. "The first reaction of everybody there was, ‘Oh, this is a sensitive
issue; this is a touchy issue politically.' "

It is not clear how -- or if -- the Obama administration will address the issue.
But in recent weeks, State Department officials have quietly tried to thwart
General Dostum's reappointment as military chief of staff to the president,
according to several senior officials, and suggested that the administration
might not be hostile to an inquiry.

The question of culpability for the prisoner deaths -- which may have been the
most significant war crime in Afghanistan after the 2001 American-led invasion
-- has taken on new urgency since the general, an important ally of Mr. Karzai,
was reinstated to his government post last month. He had been suspended last
year and living in exile in Turkey after he was accused of threatening a
political rival at gunpoint.

"If you bring Dostum back, it will impact the progress of democracy and the
trust people have in the government," Mr. Prosper said. Arguing that the Obama
administration should investigate the 2001 killings, he added, "There is always
a time and place for justice."

While President Obama has deepened the United States' commitment to Afghanistan,
sending 21,000 more American troops there to combat the growing Taliban
insurgency, his administration has also tried to distance itself from Mr.
Karzai, whose government is deeply unpopular and widely viewed as corrupt.

A senior State Department official said that Secretary of State Hillary Rodham
Clinton and Richard C. Holbrooke, the special representative on Afghanistan and
Pakistan, have told Mr. Karzai of their objections to reinstalling General
Dostum. The American officials have also pressed his sponsors in Turkey to delay
his return to Afghanistan while talks continue with Mr. Karzai over the
general's role, said an official briefed on the matter. Asked about looking into
the prisoner deaths, the official said, "We believe that anyone suspected of war
crimes should be thoroughly investigated."

While the deaths have been previously reported, the back story of the frustrated
efforts to investigate them has not been fully told. The killings occurred in
late November 2001, just days after the American-led invasion forced the ouster
of the Taliban government in Kabul. Thousands of Taliban fighters surrendered to
General Dostum's forces, which were part of the American-backed Northern
Alliance, in the city of Kunduz. They were then transported to a prison run by
the general's forces near the town of Shibarghan.

Survivors and witnesses told The New York Times and Newsweek in 2002 that, over
a three-day period, Taliban prisoners were stuffed into closed metal shipping
containers and given no food or water; many suffocated while being trucked to
the prison. Other prisoners were killed when guards shot into the containers.
The bodies were said to have been buried in a mass grave in Dasht-i-Laili, a
stretch of desert just outside Shibarghan.

A recently declassified 2002 State Department intelligence report states that
one source, whose identity is redacted, concluded that about 1,500 Taliban
prisoners died. Estimates from other witnesses or human rights groups range from
several hundred to several thousand. The report also said that several Afghan
witnesses were later tortured or killed.

In Afghanistan, rival warlords have had a history of eliminating enemy troops by
suffocating them in sealed containers. General Dostum, however, has said
previously that any such deaths of the Taliban prisoners were unintentional. He
has said that only 200 prisoners died and blamed combat wounds and disease for
most of the fatalities. The general could not be reached for comment, and a
spokesman declined to comment for this article.

While a dozen or so bodies were examined and several were autopsied, a full
exhumation was never performed, and human rights groups are concerned that
evidence has been destroyed. In 2008, a medical forensics team working with the
United Nations discovered excavations that suggested the mass grave had been
moved. Satellite photos obtained by The Times showed that the site was disturbed
even earlier, in 2006.

"Our repeated efforts to protect witnesses, secure evidence and get a full
investigation have been met by the US and its allies with buck-passing, delays
and obstruction," said Nathaniel Raymond, a researcher for Physicians for Human
Rights, a group based in Boston that discovered the mass grave site in 2002.

The first calls for an investigation came from his group and the International
Committee of the Red Cross. A military commander in the United States-led
coalition rejected a request by a Red Cross official for an inquiry in late
2001, according to the official, who, in keeping with his organization's policy,
would speak only on condition of anonymity and declined to identify the
commander.

A few months later, Dell Spry, the FBI's senior representative at the detainee
prison at Guantanamo Bay, Cuba, heard accounts of the deaths from agents he
supervised there. Separately, 10 or so prisoners brought from Afghanistan
reported that they had been "stacked like cordwood" in shipping containers and
had to lick the perspiration off one another to survive, Mr. Spry recalled. They
told similar accounts of suffocations and shootings, he said. A declassified FBI
report, dated January 2003, confirms that the detainees provided such accounts.

Mr. Spry, who is now an FBI consultant, said he did not believe the stories
because he knew that Al Qaeda trained members to fabricate tales about
mistreatment. Still, the veteran agent said he thought the agency should
investigate the reports "so they could be debunked."

But a senior official at FBI headquarters, whom Mr. Spry declined to identify,
told him to drop the matter, saying it was not part of his mission and it would
be up to the American military to investigate.

"I was disappointed because I believed that, true or untrue, we had to be in
front of this story, because someday, it may turn out to be a problem," Mr. Spry
said.

The Pentagon, however, showed little interest in the matter. In 2002, Physicians
for Human Rights asked Defense Department officials to open an investigation and
provide security for its forensics team to conduct a more thorough examination
of the gravesite. "We met with blanket denials from the Pentagon," recalls
Jennifer Leaning, a board member with the group. "They said nothing happened."

Pentagon spokesmen have said that the United States Central Command conducted an
"informal inquiry," asking Special Forces personnel members who worked with
General Dostum if they knew of a mass killing by his forces. When they said they
did not, the inquiry went no further.

"I did get the sense that there was little appetite for this matter within parts
of D.O.D.," said Marshall Billingslea, former acting assistant defense secretary
for special operations, referring to the Department of Defense.

Another former defense official, who would speak only on condition of anonymity,
recalled that the prisoner deaths came up in a conversation with Paul D.
Wolfowitz, the deputy secretary of defense at the time, in early 2003.

"Somebody mentioned Dostum and the story about the containers and the
possibility that this was a war crime," the official said. "And Wolfowitz said
we are not going to be going after him for that."

In an interview, Mr. Wolfowitz said he did not recall the conversation. However,
Pentagon documents obtained by Physicians for Human Rights through a Freedom of
Information Act request confirm that the issue was debated by Mr. Wolfowitz and
other officials.

As evidence mounted about the deaths, Secretary of State Colin L. Powell
assigned Mr. Prosper, the United States ambassador at large for war crimes, to
look into them in 2002. He met with General Dostum, who denied the allegations,
Mr. Prosper recalled. Meanwhile, Karzai government officials told him that they
opposed any investigation.

"They made it clear that this was going to cause a problem," said Mr. Prosper,
who left the Bush administration in 2005 and is now a lawyer in Los Angeles.
"They would say, ‘We have had decades of war crimes. Where do you start?' "

In Washington, Mr. Prosper encountered similar attitudes. In 2002, Zalmay M.
Khalilzad, then the White House coordinator for Afghanistan, made it clear that
he was concerned about efforts to investigate General Dostum, Mr. Prosper said.
"Khalilzad never opposed an investigation," Mr. Prosper recalled. "But he
definitely raised the political implications of it."

Mr. Khalilzad, who later served as the American ambassador to Afghanistan, did
not respond to a request for comment.

Mr. Prosper said that because of the resistance from American and Afghan
officials, his office dropped its inquiry. The State Department mentioned the
episode in its annual human rights report for 2002, but took no further action.

*


Washington Post / ProPublica --

June 27, 2009

WHITE HOUSE WEIGHS ORDER ON DETENTION
Officials: Move Would Reassert Power To Hold Terror Suspects Indefinitely

By Dafna Linzer and Peter Finn

dafna.linzer@propublica.org

http://www.washingtonpost.com/wp-dyn/content/
article/2009/06/26/AR2009062603361_pf.html

Obama administration officials, fearing a battle with Congress that could stall
plans to close the US prison at Guantanamo Bay, are crafting language for an
executive order that would reassert presidential authority to incarcerate
terrorism suspects indefinitely, according to three senior government officials
with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that
certain people can be detained without trial for long periods under the laws of
war. Obama advisers are concerned that an order, which would bypass Congress,
could place the president on weaker footing before the courts and anger key
supporters, the officials said.

After months of internal debate over how to close the military facility in Cuba,
White House officials are increasingly worried that reaching quick agreement
with Congress on a new detention system may be impossible. Several officials
said there is concern in the White House that the administration may not be able
to close the prison by the president's January deadline.

White House spokesman Ben LaBolt said that there is no executive order and that
the administration has not decided whether to issue one. But one administration
official suggested that the White House is already trying to build support for
an order.

"Civil liberties groups have encouraged the administration, that if a prolonged
detention system were to be sought, to do it through executive order," the
official said. Such an order could be rescinded and would not block later
efforts to write legislation, but civil liberties groups generally oppose long-
term detention, arguing that detainees should be prosecuted or released.

The Justice Department has declined to comment on the prospects for a long-term
detention system while internal reviews of Guantanamo detainees' cases are
underway. One task force, which is assessing detainee policy, is expected to
complete its work by July 21.

In a May speech, President Obama broached the need for a system of long-term
detention and suggested that it would include congressional and judicial
oversight. "We must recognize that these detention policies cannot be unbounded.
They can't be based simply on what I or the executive branch decide alone," he
said.

Some of Obama's top legal advisers, along with a handful of influential
Republican and Democratic lawmakers, have pushed for the creation of a "national
security court" to supervise the incarceration of detainees deemed too dangerous
to release but who cannot be charged or tried.

But the three senior government officials said the White House has turned away
from that option, at least for now, because legislation establishing a special
court would be difficult to pass and likely to fracture Obama's party. These
officials, as well as others interviewed for this article, spoke on the
condition of anonymity because they were not authorized to speak publicly about
internal deliberations.

On the day Obama took office, 242 men were imprisoned at Guantanamo. In his May
speech, the president outlined five strategies the administration would use to
deal with them: criminal trials, revamped military tribunals, transfers to other
countries, releases and continued detention.

Since the inauguration, 11 detainees have been released or transferred, one
prisoner committed suicide, and one was moved to New York to face terrorism
charges in federal court.

Administration officials said the cases of about half of the remaining 229
detainees have been reviewed for prosecution or release. Two officials involved
in a Justice Department review of possible prosecutions said the administration
is strongly considering criminal charges in federal court for Khalid Sheik
Mohammed and three other detainees accused of involvement in the Sept. 11, 2001,
attacks.

The other half of the cases, the officials said, present the greatest difficulty
because these detainees cannot be prosecuted in federal court or military
commissions. In many cases the evidence against them is classified, has been
provided by foreign intelligence services or has been tainted by the Bush
administration's use of harsh interrogation techniques.

Attorney General Eric H. Holder Jr. agreed with an assessment offered during
congressional testimony this month that fewer than 25 percent of the detainees
would be charged in criminal courts and that 50 others have been approved for
transfer or release. One official said the administration is hoping that as many
as 70 Yemeni citizens will be moved, in stages, into a rehabilitation program in
Saudi Arabia.

Three months into the Justice Department's reviews, several officials involved
said they have found themselves agreeing with conclusions reached years earlier
by the Bush administration: As many as 90 detainees cannot be charged or
released.

The White House has spent months meeting with key congressional leaders in the
hope of reaching agreement on long-term detention, although public support for
such a plan has wavered as lawmakers have sought to prevent detainees from being
transferred to their constituencies.

Lawyers for the administration are now in negotiations with Sens. Carl M. Levin
(D-MI) and Lindsey O. Graham (R-SC) over separate legislation that would revamp
military commissions. A senior Republican staff member said that senators have
yet to see "a comprehensive, detailed policy" on long-term detention from the
administration.

"They can do it without congressional backing, but I think there would be very
strong concerns," the staff member said, adding that "Congress could cut off
funding" for any detention system established in the United States.

Concerns are growing among Obama's advisers that Congress may try to assert too
much control over the process. This week Obama signed an appropriations bill
that forces the administration to report to Congress before moving any detainee
out of Guantanamo and prevents the White House from using available funds to
move detainees onto US soil.

"Legislation could kill Obama's plans," said one government official involved.
The official said an executive order could be the best option for the president
at this juncture.

Under one White House draft that was being discussed this month, according to
administration officials, detainees would be imprisoned at a military facility
on US soil, but their ongoing detention would be subject to annual
presidential review. US citizens would not be held in the system.

Such detainees -- those at Guantanamo and those who may be captured in the
future -- would also have the right to legal representation during confinement
and access to some of the information that is being used to keep them behind
bars. Anyone detained under this order would have a right to challenge his
detention before a judge.

Officials say the plan would give detainees more rights and allow them a better
chance than they have now at Guantanamo to one day end their indefinite
incarceration.

But some senior Democrats see long-term detention as tantamount to
reestablishing the Guantanamo system on US soil. "I think this could be a very
big mistake, because of how such a system could be perceived throughout the
world," Sen. Russell Feingold (D-Wis.) told Holder.

One administration official said future transfers to the United States for long-
term detention would be rare. Al-Qaeda operatives captured on the battlefield,
which the official defined as Iraq, Afghanistan, Pakistan and possibly the Horn
of Africa, would be held in battlefield facilities. Suspects captured elsewhere
in the world could be transferred to the United States for federal prosecution,
turned over to local authorities or returned to their home countries.

"Going forward, unless it's an extraordinary case, you will not see new
transfers to the US for indefinite detention," the official said.

Instituting long-term detention through an executive order would leave Obama
vulnerable to charges that he is willing to forsake the legislative branch of
government, as his predecessor often did. Bush's detention policies suffered
defeats in the courts in part because they lacked congressional approval and
tried to exclude judicial oversight.

"There is no statute prohibiting the president from doing this through executive
order, and so far courts have not ruled in ways that would bar him from doing
so," said Matthew Waxman, who worked on detainee issues at the Defense
Department during Bush's first term. But Waxman, who waged a battle inside the
Bush administration for more congressional cooperation, said that the "courts
are more likely to defer to the president and legislative branch when they speak
with one voice on these issues."

Tawfiq bin Attash, who is accused of involvement in the bombing of the USS Cole
in 2000 and who was held at a secret CIA prison, could be among those subject to
long-term detention, according to one senior official.

Little information on bin Attash's case has been made public, but officials who
have reviewed his file said the Justice Department has concluded that none of
the three witnesses against him can be brought to testify in court. One witness,
who was jailed in Yemen, escaped several years ago. A second witness remains
incarcerated, but the government of Yemen will not allow him to testify.

Administration officials believe that testimony from the only witness in US
custody, Abd al-Rahim al-Nashiri, may be inadmissible because he was subjected
to harsh interrogation while in CIA custody.

"These issues haven't morphed simply because the administration changed," said
Juan Zarate, who served as Bush's deputy national security adviser for
counterterrorism and is now at the Center for Strategic and International
Studies in Washington.

"The challenge for the new administration is how to solve these legal questions
of preventive detention in a way that is consistent with the Constitution,
legitimate in the eyes of the world and doesn't create security loopholes that
cause Congress to worry," Zarate said.

[ ProPublica is an independent, nonprofit newsroom that produces investigative
journalism in the public interest. Washington Post staff researcher Julie Tate
contributed to this report. ]

*


The New Yorker --

June 22, 2009

THE SECRET HISTORY
Can Leon Panetta move the CIA forward without confronting its past?

by Jane Mayer

http://www.newyorker.com/reporting/2009/06/22/090622fa_fact_mayer

The Central Intelligence Agency typically fights distant enemies, but on May
21st its leaders were preoccupied with a local opponent. A few miles from the
agency's headquarters, which are in Langley, Virginia, former Vice-President
Dick Cheney delivered an extraordinary attack on the Obama Administration's
emerging national-security policies. Cheney, speaking at the American Enterprise
Institute, accused the new Administration of making "the American people less
safe" by banning brutal CIA interrogations of terrorism suspects that had been
sanctioned by the Bush Administration. Ruling out such interrogations "is unwise
in the extreme," Cheney charged. "It is recklessness cloaked in righteousness."

Leon Panetta, the CIA's new director -- and the man who bears much of the
responsibility for keeping the country safe -- learned the details of Cheney's
speech when he arrived in his office, on the seventh floor of the agency's
headquarters. An hour earlier, he had been standing at the side of President
Barack Obama, who was giving a speech at the National Archives, in which he
argued that America could "fight terrorism while abiding by the rule of law." In
January, the Obama Administration banned the "enhanced" techniques that the Bush
Administration had approved for the agency, including waterboarding and
depriving prisoners of sleep for up to eleven days. Panetta, pouring a cup of
coffee, responded to Cheney's speech with surprising candor. "I think he smells
some blood in the water on the national-security issue," he told me. "It's
almost, a little bit, gallows politics. When you read behind it, it's almost as
if he's wishing that this country would be attacked again, in order to make his
point. I think that's dangerous politics."

Panetta was also absorbing criticism from the left. The day before, a group of
progressive human-rights advocates had been given an off-the-record briefing
with Obama, where they discussed his plans for handling terrorism suspects; some
of the advocates were enraged at what they saw as a tacit continuation of the
Bush approach. According to a participant, Obama warned the group that such
comparisons were "not helpful." Nevertheless, Kenneth Roth, the executive
director of Human Rights Watch, who also attended the briefing, went on to
denounce the Administration for considering "preventive detention" --
incarcerating certain terror suspects indefinitely, without trial. Obama's
position, Roth said, "mimics the Bush Administration's abusive approach."

Since January, the CIA has become the focus of almost daily struggle, as Obama
attempts to restore the rule of law in America's fight against terrorism without
sacrificing safety or losing the support of conservative Democratic and
independent voters. So far, he has insisted on trying to recalibrate the
agency's policies without investigating past mistakes or holding anyone
responsible for them. Caught in the middle is Panetta, who is seventy years old
and has virtually no experience in the intelligence field. Indeed, his
credentials for running the world's foremost spy agency are so unlikely that
when John Podesta, the head of Obama's transition team, asked him to take the
job he responded, "Are you sure?" Podesta assured Panetta that his outsider
status was actually an advantage: "He said, ‘You don't carry the scars of the
past eight years. Besides, the President wants somebody who will talk straight
to him on these issues.' "

Although Panetta served briefly in the military, half a century ago, his
reputation has been built almost entirely on his mastery of domestic policy. For
sixteen years, he was a Democratic congressman from his home town, Monterey,
California. In 1989, he became the chairman of the House Budget Committee,
making him a natural choice as President Bill Clinton's first budget director.
In 1994, he became Clinton's chief of staff.

Panetta, the son of Italian immigrants, grew up washing dishes in his parents'
restaurant. He is disarmingly forthright, with an easy laugh; he is also a stern
disciplinarian and a workaholic. Colleagues say that Panetta, who attends Mass
regularly, can be principled to the point of rigidity. It was partly Panetta's
rectitude that got him the CIA job. During the Bush years, he decried the
country's loss of moral authority; in a blunt essay for Washington Monthly last
year, he declared that Americans had been transformed "from champions of human
dignity and individual rights into a nation of armchair torturers." He
concluded, "We either believe in the dignity of the individual, the rule of law,
and the prohibition of cruel and unusual punishment, or we don't. There is no
middle ground."

Panetta's impassioned essay unexpectedly became an asset during the Obama
transition, after John Brennan -- the initial candidate for CIAdirector -- was
pressured to withdraw. Critics accused Brennan, who had been a top agency
official during the Bush years, of complicity with the torture program. (A
friend of Brennan's from his CIA days complained to me, "After a few Cheeto-
eating people in the basement working in their underwear who write blogs voiced
objections to Brennan, the Obama Administration pulled his name at the first
sign of smoke, and then ruled out a whole class of people: anyone who had been
at the agency during the past ten years couldn't pass the blogger test.")

Panetta had one other strong qualification: he was close to Rahm Emanuel, the
new chief of staff. During the Clinton Administration, Emanuel, serving as the
White House political director, was suspected by former First Lady Hillary
Clinton and others of leaking information, and was very nearly fired. Emanuel
entered what he calls his "wilderness period." When Panetta became chief of
staff, however, he reinstated Emanuel as a top aide. "I thought he had a lot of
street smarts and good political sense," Panetta told me.

In 1994, Panetta discovered, to his dismay, that the President had quietly
turned to Dick Morris, a political consultant with a dubious ethical reputation.
Harold Ickes, a former White House aide, recalls Panetta walking the halls late
one night and saying that he needed a shower after attending a meeting with
Morris. Later, a tabloid newspaper reported that Morris had been meeting with a
prostitute in a nearby Washington hotel. In 1997, Panetta left the White House,
by mutual agreement; he and his wife, Sylvia, founded the nonpartisan Panetta
Institute for Public Policy, in Northern California. In January, 1998, it was
revealed that Clinton had conducted an extramarital affair with Monica Lewinsky
-- Panetta's former intern. An associate described Panetta then as "very
disappointed in Bill Clinton, because of Monica Lewinsky. He saw him as a man
with no personal discipline."

Eleven years later, Barack Obama called Panetta for advice on who might make a
good chief of staff. Panetta recommended Emanuel, telling him that "Rahm knows
the Hill, he certainly knows the White House, and he's got the tough side"
necessary for the job. In January, Emanuel recommended Panetta for the CIA post.
Emanuel said of Panetta, "Leon has great judgment, a great compass. He's a great
manager, and he's trusted by both parties." (Panetta was a Republican until
1971.) Some former CIA officers, such as Tyler Drumheller, who retired in 2005
as the head of clandestine operations in Europe, welcome the choice. "It's not
such a bad thing to have a powerful guy with access to the President," he told
me. Panetta, he predicted, "will restore the integrity of the intelligence
process. After what we've been through on Iraq and torture allegations, that's a
big deal."

Michael Waldman, who was President Clinton's chief speechwriter, and who now
runs the Brennan Center for Justice, at the New York University School of Law,
describes Panetta as "one of the more honorable, decent, and principled people
in government," but considers it "amazing that he was such an outspoken critic"
of the agency. Given Panetta's reputation for integrity, and the CIA's central
role in the interrogations scandal, Waldman wondered, "can he ride the tiger
without being eaten?" He added, "An agency like that can turn on a director.
That's the challenge: he's got to both lead it and reform it."


The record of outsiders taking over the CIA is mixed. John McCone, a California
shipping magnate who ran the agency in the Kennedy and Johnson years, is often
cited as being among the most successful directors; having been trained as a
mechanical engineer, he was skilled at assessing threats posed by both
conventional and nuclear weapons. But other outsiders have been met with intense
hostility. James Schlesinger was named CIA director by President Richard Nixon
after heading the Atomic Energy Commission. Given instructions to "get rid of
the clowns," Schlesinger dismissed or forced into retirement more than five
hundred analysts and a thousand clandestine officers. He faced death threats,
and his tenure lasted six months. In 1995, President Clinton appointed John
Deutch, who had previously served at the Pentagon. Deutch tried to improve the
oversight of clandestine operatives after evidence surfaced that an agent in
Guatemala had covered up two murders. Deutch was reviled by many operatives, and
he left the agency after eighteen months. Eventually, he was accused of
mishandling classified documents and stripped of his security clearance. "You
pick on the CIA at your own peril," Michael Waldman says.

Nevertheless, many critics believe that the agency must reckon with the legacy
of the Bush era. In the past few years, irrefutable evidence has emerged that
after 9/11 the agency lost its moral bearings. A confidential Red Cross report
has come into public view, along with formerly classified government documents,
leaving no doubt that the agency subjected scores of terror suspects to
prolonged physical and psychological cruelty. Officers shackled prisoners for
weeks in contorted positions; chained them to the ceiling wearing only diapers;
exploited their phobias; propelled them head first into walls. At least three
prisoners died.

Torture is a felony, and is sometimes treated as a capital crime. The Convention
Against Torture, which America ratified in 1994, requires a government to
prosecute all acts of torture; failure to do so is considered a breach of
international law. The issue of torture assumed symbolic importance during the
2008 campaign, and when Obama took office many of his liberal supporters
expected him to hold the perpetrators of abuse accountable. Democratic leaders
in Congress pushed particularly hard for action. Senator Carl Levin, the
chairman of the Armed Services Committee, had investigated the military's role
in detention and interrogation abuse but was kept by his committee's limited
jurisdiction from investigating the CIA; he urged the new Attorney General, Eric
Holder, to open an inquiry, saying, "There needs to be an accounting of torture
in this country." Senator Patrick Leahy, the chairman of the Judiciary
Committee, argued for the creation of an independent "truth commission," which
could grant immunity to witnesses -- thus helping to insulate the Obama
Administration from charges that it was exploiting the torture issue for
partisan gain.

The CIA's role in providing misleading intelligence about the presence of
weapons of mass destruction in Iraq has also provoked calls for reform. Senator
Dianne Feinstein, the new chairman of the Intelligence Committee, told me,
"There's no vote that I regret more than the vote to authorize war with Iraq";
her vote was based on intelligence that she describes as "flat wrong." Feinstein
went on, "I am absolutely determined to reform the process of gathering and
analyzing intelligence."

As soon as Obama took office, he overturned most aspects of the Bush
Administration's interrogation policy. He issued an executive order banning
inhumane treatment of prisoners by any government officials, and one closing the
CIA's network of secret "black site" prisons, which stretched from Poland to
Thailand. He also vowed to close the military prison in Guantanamo Bay, Cuba,
where fourteen former CIA prisoners are being held. But Obama's message has been
uncharacteristically muddled on the question of accountability. He has said that
Attorney General Holder should be the one to decide whether to take criminal
action; he has also said that he would support further congressional
investigation, as long as it was done in a bipartisan fashion. At the same time,
he has signalled that he has no appetite for "looking backwards," and in late
April, during a private White House meeting with congressional leaders, he
rejected the idea of an outside truth commission. In the meantime, Republicans
have seized the political initiative, expressing grave concern about the plans
to close Guantanamo and transfer the prisoners to US facilities.

Tim Weiner, the author of "Legacy of Ashes," a recent history of the CIA, says
that Panetta is facing a series of "unappetizing choices." Weiner believes that
the country is in a period similar to the Watergate era, when a series of
disturbing state secrets -- such as the existence of the Phoenix Program, a CIA-
supported initiative, in which the South Vietnamese were alleged to have
tortured civilians -- spilled out. Speaking of Panetta, he said, "It can't be
comfortable for a man who said, ‘This is un-American,' to be put in the position
of saying, ‘Well, we hold no one accountable.' "


Panetta, whose conversation with me at CIA headquarters was his first lengthy
interview on the topic of abusive interrogations, said that when he took over
the agency he "wanted to be damn sure" that there was nobody on the payroll who
should be prosecuted for torture or related crimes. He asked John Helgerson,
then the CIA's inspector general, to conduct a review. In theory, the inspector
general is politically independent, and therefore able to render unbiased
judgments. In 2004, Helgerson had written a classified report on the CIA's
secret detention-and-interrogation program, in which he questioned both the
legality and the effectiveness of the agency's brutally coercive techniques.
Panetta cited Helgerson's "credibility" as a reason to trust his assessment.
According to Panetta, Helgerson, who is not a lawyer, assured him that no
officer still at the agency had engaged in actions that went beyond the legal
boundaries as they were understood during the Bush years. Helgerson, who retired
from the agency in May, says he told Panetta only that he was not aware of any
cases that merited prosecution, though "continuing work was being done."

Panetta told me, "I'm going to give people the benefit of the doubt. . . . If
they do the job that they're paid to do, I can't ask for a hell of a lot more."
His words echo those of President Obama, who on April 16th promised immunity
from prosecution to any CIA officer who relied on the advice of legal counsel
during the Bush years. Jeffrey H. Smith, a former general counsel to the CIA,
points out that this is a low standard, given that "what the Justice Department
approved was outrageous." For example, for more than a century the US had
prosecuted waterboarding as a serious crime, and a ten-year prison sentence was
issued as recently as 1983. Indeed, the memos authorizing interrogators to
torment prisoners clashed so glaringly with international and US law that some
of them were later withdrawn by lawyers in Bush's own Justice Department.

Smith, who has advised Obama informally on how to handle the CIA's legacy of
abuse, thinks that prosecutions are not politically viable at this point, and
would in any case be unfair to officers who thought they were adhering to the
law. And many Republicans, from Newt Gingrich to John McCain, have argued that
pressing charges against government officials would threaten morale and inhibit
risk-taking at a time when the agency faces wars on two fronts and a continuing
threat from Al Qaeda. The Harvard law professor Laurence Tribe disagrees. "It's
hard not to do something to those who performed the act," he says. "It's not
beyond the pale to imagine that even people armed with legal opinions might be
held legally responsible for violating the criminal law in the area of torture."

Panetta told me, "Frankly, I didn't support these methods that were used, or the
legal justification for why they did it. . . . I also believed if I were to take
this job it was about dealing with the threats that are out there, and trying to
really bring the CIA into a new chapter." He said that once he felt confident
that there was no criminal liability inside the agency he "didn't want to spend
a lot of time dealing with the past and what mistakes were made."

It turns out, however, that Panetta initially supported the creation of a truth
commission. "I'm not big on commissions," Panetta told me. "On the other hand, I
could see that it might make some sense, frankly, to appoint a high-level
commission, with somebody like Sandra Day O'Connor, Lee Hamilton -- people like
that." The appeal was that Obama could delegate to others the legal problems
stemming from Bush Administration actions, allowing him to focus on his
ambitious political agenda. "In the discussion phase" -- early in the spring,
before Obama decided the issue -- "I was for it," Panetta said. "Because every
time a question came up, you could basically say, ‘The commission, hopefully, is
looking at this.' " But by late April Obama had vetoed the idea, fearing that it
would look vindictive and, possibly, inflame his predecessor. "It was the
President who basically said, ‘If I do this, it will look like I'm trying to go
after Cheney and Bush,' " Panetta said. "He just didn't think it made sense. And
then everybody kind of backed away from it."

Ken Gude, an associate director at the Center for American Progress, who
specializes in national-security issues, and who has close ties to the White
House, believes that Obama's instinct, like Panetta's, was to set up a truth
commission of some sort. "I think the political staff walked it back," he says.
"They said it would be a distraction." Obama's political advisers dread any
issue that could trigger a culture war and diminish his support among
independent voters. They also see little advantage in picking a fight with the
CIA But the decision to discourage an accountability process, Gude says, has
backfired. The Administration has lost control of the story, as revelations
about CIA misdeeds have continued to emerge through lawsuits and the press.
"It's now become the distraction they wanted to avoid," Gude says. "The White
House briefings have been dominated by questions about releasing documents and
photos." It's understandable, he says, that Obama wouldn't want to spend his
energy on Bush's mistakes. But, he warns, "they can't leave the impression that
they're trying to cover it up."


Panetta may not have scars from the past eight years, but he is surrounded by
people who do. Some of his closest advisers have connections to the torture
program. Panetta brought only one person with him to the agency: Jeremy Bash,
the well-regarded former chief counsel to the House Intelligence Committee, who
now serves as his chief of staff. Phil Trounstine, a California-based political
consultant and analyst who has known Panetta for years, says of him, "Here's a
guy who has been very critical of the Bush world view, who has to enforce a new
set of guidelines and policies by leading the same agency and the same people as
in the past."

Several of Panetta's top deputies worked closely with George Tenet, the agency's
director from 1997 until 2004. Under Tenet, the CIA took the lead role in
fighting terrorism, and its officers became the jailers, and sometimes the
tormentors, of many US-held detainees. Tenet, who is now a managing director
of the investment bank Allen & Company, has all but disappeared from public
sight in Washington. He recently cancelled an appearance scheduled at the
Panetta Institute this month. ("George has not wanted to do stuff in front of a
camera," Panetta noted.) But in his 2007 memoir, "At the Center of the Storm,"
Tenet defended the use of "enhanced" interrogation techniques on terror
suspects, claiming that the information they elicited had prevented other
attacks and saved American lives. (He also assured President Bush that the case
for going to war in Iraq was "a slam dunk.") But a former senior agency official
who worked with many of Tenet's top team members says, "These people carried out
this policy . . . but they'll muddy the waters by explaining why what they did
was O.K. They will say that ‘Bush was bad' but they weren't. A lot of it is just
to protect their own positions. It's amazing to me that all these Tenet people
survived!"

Behind Panetta's desk -- next to a framed, tattered American flag that was
rescued from the ruins of the World Trade Center -- is a door leading to the
office of Stephen Kappes, whom Panetta has kept on as the agency's second-in-
command. Kappes, a former US marine, is widely admired within the agency, in
particular for his role in persuading the Libyan leader Muammar Qaddafi to
abandon his nuclear-weapons program, in 2003. "Kappes is the case officer's case
officer," John Radsan, who was a lawyer at the CIA during President Bush's first
term, says. Intense, serious, and fluent in Russian and Farsi, Kappes has served
as a station chief in Moscow, New Delhi, and Frankfurt, and has supervised many
clandestine operations. In April, President Obama paid a visit to CIA
headquarters and singled out Kappes as the wise "graybeard" in the building.
Senator Feinstein insisted to Obama Administration officials privately that
Kappes continue as deputy director; it was a condition of her support for
Panetta, whose lack of experience in covert operations she questioned.

During the first term of the Bush Administration, Kappes was a top official in
the Directorate of Operations. This group oversaw the agency's Counterterrorist
Center, which, in turn, managed the secret detention-and-interrogation program.
Few doubt that he was aware that the CIA was engaging in brutality. One former
officer recalls that Kappes voiced qualms, warning that the program amounted to
"torture." According to the former officer, once Kappes was overruled he went
along; Kappes was "the brains" of the directorate, the former officer says.
(Kappes, through a spokesman, denied having had a direct role in the
interrogation program, or having called its tactics torture.) Another former CIA
operative says, "It would be hard to say someone so involved could be robustly
objective" in advising Panetta.

Panetta says that most of the individuals who managed the secret interrogation
program have since left the agency. One of the holdovers is Jonathan Fredman,
who was formerly the chief counsel to the division that ran the interrogation
program; he is now on temporary assignment with the director of National
Intelligence. According to notes from a 2002 meeting, which were disclosed at a
recent Senate hearing, Fredman advised that torture "is basically subject to
perception. If the detainee dies, you're doing it wrong." The notes, whose
accuracy Fredman has disputed, describe him saying that videotapes of
interrogations would look "ugly." Fredman's former boss is John A. Rizzo, the
CIA's acting general counsel, who was the recipient of many of the Justice
Department's torture memos. (Rizzo is scheduled to leave the agency once a
replacement has been confirmed.) And the current head of the Counterterrorist
Center -- the officer, who is undercover, cannot be identified -- ran the
interrogation program for part of Bush's second term. Several current station
chiefs and division chiefs were also deeply involved in brutal interrogations,
as were pilots, logistical experts, medical personnel, and others.

Meanwhile, John Brennan -- the man who was considered too politically toxic for
the top CIA job -- has become a senior official on the National Security
Council. Brennan, who, as one former CIA officer puts it, was once "joined to
George Tenet at the hip" -- he served as Tenet's chief of staff -- now advises
Obama on terrorism and other national-security issues. He has reportedly lobbied
hard to maintain secrecy on past abuses. According to Newsweek, Brennan recently
persuaded Panetta to join him in protesting Obama's plan to release four
shocking Justice Department memos about the interrogation program. The
documents, written by lawyers in the Office of Legal Counsel, showed that the
CIA had waterboarded one suspect at least a hundred and eighty-three times and
subjected many others to harrowing mistreatment. Opponents have argued that
exposing such details could spark an anti-American backlash. Panetta also argued
forcefully in favor of indemnifying any CIA officers whose actions, as described
in the memos, might have opened them up to criminal charges.

Several well-respected former CIA officials -- including Fred Hitz, a former
inspector general, and Paul Pillar, a former Middle East analyst -- told me that
they saw no harm in releasing the documents. Dennis C. Blair, the director of
National Intelligence, who oversees the US intelligence establishment,
including the CIA, also supported the release of the documents, after his staff
concluded that the disclosures would likely do no damage.

After intense consideration, and a late-night meeting in Rahm Emanuel's office,
Obama rejected Panetta's arguments for secrecy, deciding that it was in the
public interest to release the memos. But Obama also endorsed the notion of
giving blanket amnesty to any CIA officers performing authorized work.

Panetta's resistance to public disclosure seemed out of character to some
longtime colleagues. "I was surprised by Leon's position on the O.L.C. memos,"
Phil Trounstine told me. "It's tough to maintain your principles when you're
head of the CIA, because you need to be seen as someone that the people inside
the agency want to follow." Panetta had become an advocate for secrecy so
quickly, a White House official joked, that "it's like ‘Invasion of the Body
Snatchers.' "

Panetta's advisers may have had a personal stake in opposing transparency.
Another former CIA official, who knows Brennan well, noted that, if the Bush
torture program were to be further investigated, "potentially, both Brennan and
Kappes could have a lot to lose." Brennan's supporters have argued that he had
no operational control over the interrogation program, and point out that his
tenure as Tenet's chief of staff ended in March, 2001, before the Al Qaeda
attacks. But he was subsequently named deputy executive director, and served in
that position until March, 2003 -- the period when the most brutal detainee
treatment occurred. In addition, Brennan often briefed President Bush about
daily developments in the war on terror. Brennan has described himself as an
internal critic of waterboarding -- a position that friends, such as Emile
Nakhleh, a former senior officer, confirm. Yet, in an interview with me two
years ago, Brennan defended the use of "enhanced" interrogation techniques and
extraordinary renditions, in which the CIA abducted terror suspects around the
globe and transported them to other countries to be jailed and interrogated;
many of those countries had execrable human-rights records. He also questioned
some people's definition of "torture." "I think it's torture when I have to ride
in the car with my kids and they have loud rap music on," he said. Asked if
"enhanced" interrogation techniques were necessary to keep America safe, he
replied, "Would the US be handicapped if the CIA was not, in fact, able to
carry out these types of detention and debriefing activities? I would say yes."

Anthony Lake, who was the national-security adviser under Clinton, said of
Brennan, "I've known John a long time, and he's a really good guy. I would
argue, you can't throw out the whole agency." Lake, in fact, recommended Brennan
to the Obama campaign when it was looking for intelligence advisers -- after
consulting with their mutual friend George Tenet. America's intelligence
community is an incestuous one, making it difficult for a President to break
with old ways of thinking.

Indeed, a well-informed analyst with close ties to the White House says that the
CIA has been lobbying hard to get Obama to support some form of preventive
detention for terror suspects. An agency spokesman denies this. But the analyst
says, "They definitely want the flexibility to hold people in some form of
detention. They have been saying, ‘We need deep authorities.' They've been
presenting the President with nightmare scenarios."

Panetta, for his part, has been persuaded that renditions are a tool worth
keeping. The rendition program began, in a more carefully monitored form, during
the Clinton Administration, but in the Bush years it was transformed into what
John Radsan, the former CIA lawyer, called "an abomination." As many as seven
detainees were misidentified and abducted by mistake; many other suspects have
alleged that they were hideously tortured by foreign governments. Panetta told
me, "The worst part of rendition was rendition to a black site. That will not be
the case anymore. If we render someone, it will be to a country with
jurisdiction over that individual." During the Bush years, however, some of the
most horrific allegations of abuse were made by detainees rendered not to black
sites but to Egypt, Syria, and Morocco. The Obama Administration, Panetta says,
will take precautions to insure that rendered suspects are treated humanely, as
the law requires. "I've talked to the State Department, and our people have to
make very sure that people won't be mistreated," Panetta said. "Some places,
obviously, it's more difficult to do. But we're going to have to press to make
sure it doesn't happen, because it would fly in the face of everything the
President has said we stand for." The Bush Administration professed to be taking
similar precautions.

The CIA has apparently done nothing to penalize the officer who oversaw one of
the most notorious renditions -- that of a German car salesman named Khaled el-
Masri. He was abducted while on a holiday in Macedonia, and flown by the agency
to Afghanistan, where he was detained in a dungeon for five months without
charges, before being released. From the start, the rendition team suspected
that his case was one of mistaken identity. But the CIA officer in charge at
Langley -- the agency asked that the officer's name be withheld -- insisted that
Masri be further interrogated. "She just looked in her crystal ball and it said
that he was bad," a colleague recalls. Masri says that he was chained in a
freezing cell with no bed, and given water so putrid that he could smell it
across the room. He was threatened and stripped, and could hear other detainees
crying all around him. After several weeks, the CIA officer in charge learned
that Masri's German passport was not a forgery, as was originally suspected, and
that he was not the terror suspect the agency thought he was. (The names were
similar.) Even so, the officer in charge refused to release him. Eventually,
Masri went on a hunger strike, losing sixty pounds. Skeptics in the agency went
directly over the officer's head to Tenet, who realized that his agency had been
brutalizing an innocent man. Masri was released after a hundred and forty-nine
days. But the officer in charge was not disciplined; in fact, a former colleague
says, "she's been promoted -- twice." Masri, meanwhile, has been unable to sue
the US government for either an apology or damages, because the courts
consider the very existence of rendition a state secret -- a position that the
Obama Justice Department has so far supported.

No criminal charges have ever been brought against any CIA officer involved in
the torture program, despite the fact that at least three prisoners interrogated
by agency personnel died as the result of mistreatment. In the first case, an
unnamed detainee under CIA supervision in Afghanistan froze to death after
having been chained, naked, to a concrete floor overnight. The body was buried
in an unmarked grave. In the second case, an Iraqi prisoner named Manadel al-
Jamadi died on November 4, 2003, while being interrogated by the CIA at Abu
Ghraib prison, outside Baghdad. A forensic examiner found that he had
essentially been crucified; he died from asphyxiation after having been hung by
his arms, in a hood, and suffering broken ribs. Military pathologists classified
the case a homicide. A third prisoner died after an interrogation in which a CIA
officer participated, though the officer evidently did not cause the death.
(Several other detainees have disappeared and remain unaccounted for, according
to Human Rights Watch.)

During his tenure at the CIA, John Helgerson, the former inspector general,
forwarded the crucifixion case, along with an estimated half-dozen other
incidents, to the Justice Department, for possible prosecution. But the case
files have languished. An official familiar with the cases told me that the
agency has deflected inquiries by the Senate Intelligence Committee seeking
information about any internal disciplinary action. (Helgerson told me, "Some
individuals have been disciplined. And others no longer work at the agency.")

Panetta acknowledges that there are some people still at the CIA who may be
tainted by the torture program. Nevertheless, he says, "I really respect the
people who say we shouldn't have gotten involved in the interrogation business
but we had to do our jobs. I don't think I should penalize people who were doing
their duty. If you have a President who exercises bad judgment, the CIA pays the
price."


On June 1st, former Vice-President Cheney asserted in a speech that the CIA,
rather than the White House, first proposed hurting prisoners during
interrogations. "It was their initiative," he said. "They had a couple of cases
where they thought enhanced interrogation techniques would provide information."
Panetta has a different view. "There is no question in my mind," he said. "The
interrogation thing, to some extent, was cast upon us, because the military
walked away from it, and the FBI walked away from it, and so everybody came down
on the CIA," he said. This is technically true, although the FBI "walked away"
from interrogations of terrorism suspects after its director, Bob Mueller, heard
complaints from an agent, Ali Soufan, that the CIA's interrogation methods
amounted to "borderline torture." John Helgerson told me that he holds the CIA,
the Pentagon, and the White House equally responsible: "They went arm in arm
into it."

Without a thorough public investigation, it's difficult to assess the truth
behind such contradictory accusations. "Everyone says, ‘It's over, it's known,'
" Nathaniel Raymond, who works with the advocacy group Physicians for Human
Rights, told me. "But what is known? We still don't know how many detainees were
in the black sites, or who they were. We don't fully know the White House's
role, or the CIA's role. We need a full accounting, especially as it relates to
health professionals." The recently released Justice Department memos, he noted,
contain numerous references to CIA medical personnel participating in coercive
interrogation sessions. "They were the designers, the legitimizers, and the
implementers," Raymond said. "This is arguably the single greatest medical-
ethics scandal in American history. We need answers."

Some conservatives are also calling for greater openness. Will Taft, the general
counsel to the State Department in the Bush Administration, told me, "There are
some twenty or thirty people whom the CIA said it formerly held but no longer
does. Those names have never been released. The government should identify all
the people in the program and account for them."

The Senate Intelligence Committee recently embarked on its own, closed-door
investigation of the torture program; Panetta told me that he has been assured
that the committee members' work "would be about lessons learned, as opposed to
going after people." So the CIA is "coöperating with them, giving them whatever
information they need to try to conduct their review." He says that the
committee has already identified some ten million relevant documents. "It's
going to take a while," he said.

The Senate investigation will, among other things, probe the question of
torture's efficacy. Dick Cheney has repeatedly claimed that "enhanced"
interrogations yield results. Opponents say that torture is counterproductive.
Panetta is more agnostic. He told me, "The bottom line would be this: Yes,
important information was gathered from these detainees. It provided information
that in fact was acted upon. Was this the only way to obtain this information? I
think that will always be an open question." But he is certain that "we did pay
a price for using those methods."

A number of recently released documents call into question the notion that the
CIA played a passive role in relation to torture policy. A 2008 report by the
Senate Armed Services Committee indicates that the agency hired contract
psychologists who went on to design and implement specific forms of abuse --
such as locking a detainee, doubled up, in a tiny, airless cage -- months before
August, 2002, when the Justice Department granted legal authorization with its
infamous "torture memo." More troublingly, footnotes in the Office of Legal
Counsel memos suggest that some CIA interrogators may have egregiously exceeded
the legal boundaries set down by the Justice Department and the White House --
which seemingly puts them outside the legal safety zone demarcated by Obama and
Panetta. In 2002, the Bush Administration authorized interrogators to re-create
the ostensibly safe waterboarding techniques used in military training. But,
instead of limiting the sessions to a maximum of two twenty-second bouts of
controlled drowning, as prescribed in military training, the CIA interrogators
forced one detainee to undergo at least a hundred and eighty-three sessions, and
another at least eighty-three. And, instead of using a very small amount of
water, as the Justice Department stipulated, the CIA interrogators subjected the
detainees to "large volumes" of water. The memos quote Inspector General
Helgerson's finding, in his secret 2004 report on coercive techniques, that the
interrogators amplified the pain deliberately, in order to make the sensation of
drowning "more poignant and convincing." Helgerson also found that the
psychologists and interrogators who designed the agency's protocols -- and who
claimed that their judgments were based on knowledge of military standards --
had "probably misrepresented" their "expertise." In addition, the CIA's Office
of Medical Services found that there was "no reason to believe that applying the
waterboard with the frequency and intensity with which it was used by the
psychologist/interrogators . . . was either efficacious or medically safe."

In April, Panetta fired all the CIA's contract interrogators, including the
former military psychologists who appear to have designed the most brutal
interrogation techniques: James Mitchell and Bruce Jessen. The two men, who ran
a consulting company, Mitchell, Jessen & Associates, had recommended that
interrogators apply to detainees theories of "learned helplessness" that were
based on experiments with abused dogs. The firm's principals reportedly billed
the agency a thousand dollars a day for their services. "We saved some money in
the deal, too!" Panetta said. (Remarkably, a month after Obama took office the
CIA had signed a fresh contract with the firm.)

According to ProPublica, the investigative reporting group, Mitchell and
Jessen's firm, which in 2007 had a hundred and twenty people on its staff,
recently closed its offices, in Spokane, Washington. One employee was Deuce
Martinez, a former CIA interrogator in the black-site program; Joseph Matarazzo,
a former president of the American Psychological Association, was on the
company's board. (According to Kirk Hubbard, the former head of the CIA's
research and analysis division, Matarazzo served on an agency professional-
standards board during the time the interrogation program was set up, but was
not consulted about the interrogations.)

Lawsuits against abusive contractors remain a possibility, and any one of them
could expose a line of authorizations leading directly up the chain of command
at the CIA, and into the Bush White House. George Brent Mickum IV, a lawyer
representing Abu Zubaydah, a CIA prisoner who was repeatedly waterboarded, said,
"I'd like to sue Mitchell and Jessen in a minute." (Mitchell was an adviser on
Zubaydah's interrogation.) After Zubaydah was waterboarded, his lawyers say, his
mental state deteriorated, and he has since been prescribed the antipsychotic
drug Haldol.

Few activists expect lawsuits against the CIA or its contractors to succeed. But
John Sifton, an attorney who specializes in human-rights law, and who is part of
Zubaydah's legal team, notes that there are other ways for the detainees'
grievances to become public. "The act of prosecuting the high-value detainees
will be the accountability process," Sifton said. "It's impossible to try these
detainees without allowing them to air all the information about their torture."


Other legal actions threaten to expose yet more secrets of the CIA's torture
program. A prosecutor appointed by the Justice Department, John Durham, has
convened a grand jury in Washington to weigh potential criminal charges against
CIA officers who were involved in the destruction of ninety-two videotapes
documenting the interrogations of Abu Zubaydah and other detainees. Mickum told
me that he has met several times with Durham, and believes that the scope of his
inquiry may have expanded to include a review of whether the CIA began using
brutal methods on Zubaydah before it received written authorization from the
Justice Department. (This would provide an extra motive for destroying the
videotapes.) Mickum said, "I got the sense he was very serious." (Durham
declined to comment.) The A.C.L.U., meanwhile, is suing to get access to
classified descriptions of what was on the destroyed videotapes. Last week,
Panetta filed an affidavit opposing the disclosure, which he said "could be
expected to result in exceptionally grave damage to the national security." Once
again, he was protecting Bush-era interrogation secrets.

Pressure is also coming from abroad. In Italy, two dozen CIA officers are on
trial in absentia for participating in a 2003 rendition. Robert Seldon Lady, the
agency's station chief in Milan at the time, can no longer travel to Italy
without danger of arrest, nor can the other CIA officers named in the case.
Spain has opened a criminal investigation of six Bush Administration officials
in connection with torture. And in London a former rendition victim is suing the
British authorities. After a British judge ruled that the plaintiff, Binyam
Mohammed, should be given access to CIA intelligence documents that the agency
shared with British authorities, the Obama Administration surprised liberals by
pressuring the British government to stop the disclosures.

Several other legal challenges to the agency's interrogation program are working
their way through the US court system. A judge in California recently rejected
the Justice Department's claims of blanket state secrecy in a case brought by
five rendition victims against Jeppesen Dataplan, a subsidiary of Boeing, which
provided the flight plans for the CIA's renditions. In a press conference in
April, Obama indicated that he had had second thoughts about the Justice
Department's assertion of blanket state secrecy in the case, but on June 12th
the Administration reasserted its original claim.

Earlier this month, Philip Mudd, Obama's nominee for a top Homeland Security
post, withdrew from consideration after it became clear that his Senate
confirmation would turn into a fight over his previous role in the CIA's
interrogation program. Rahm Emanuel, speaking of the many challenges posed by
the torture scandal, told me, "It's a day-to-day -- I won't say struggle -- but
problem. There are a lot of cases in the queue that require response. Many of
them. But I've seen the President in the Situation Room, and I know he wants to
move forward."

Panetta is already forging ahead on one important reform: he plans to replace
the abusive interrogation program with a legally acceptable, non-coercive
alternative. A task force led by the Harvard Law School professor Philip Heymann
has been advising him on a proposal to create an elite US government
interrogation team, staffed by some of the best CIA, FBI, and military officers
in the country, and drawing on the advice of social scientists, linguists, and
other scholars. "What I'm pushing for is to establish a facility where we
develop a team of interrogators trained in the latest techniques," Panetta said.
"That's the one thing I'm worried about, frankly. There just aren't that many
people who have the interrogation abilities we're going to need." Heymann
describes the effort to create "the best non-coercive interrogation team in the
world" as the equivalent of "a NASA-like, man-on-the-moon effort" for human-
intelligence gathering. He said that members of his task force have travelled to
France, England, Japan, Australia, and Israel, in order to compile comparative
information on what interrogators do. "We also went to the best people in the
US," he added.

Panetta has many ambitions for his tenure at the agency. He spoke to me of the
need for the CIA to increase its foreign-language skills, and to recruit
officers of more diverse backgrounds, who can more easily infiltrate hostile
parts of the world. But, as Panetta sees it, the CIA's effort to "disrupt,
destroy, and dismantle" Al Qaeda remains its top priority. The agency continues
to acquire intelligence suggesting that Al Qaeda is planning attacks on America,
he told me. "We're conducting pretty robust operations in Pakistan, and I think
we're doing a good job of trying to disrupt Al Qaeda. But, clearly, that is a
threat." The greatest danger, he said, is that Al Qaeda will "find other safe
havens to go to," in states such as Somalia and Yemen. "Our mission is to make
sure they can't find a place to hide." Finding and bringing to justice Al
Qaeda's leaders -- in particular, Osama bin Laden and Ayman al-Zawahiri --
"remains a focal point," Panetta said. "It's not easy, as you can imagine."

Last week, the Times reported on escalating friction over jurisdiction between
Panetta and Dennis Blair, the National Intelligence director. "I'm surprised at
the number of challenges you have to confront in this job," Panetta confided.
"You're a traffic cop, in many ways." When he was the White House chief of
staff, Panetta said, he could delegate the big decisions to the President.
"Here, though," he said, gazing out over the CIA's serene grounds, "the
decisions come to me. And a lot of them involve life and death." Sometimes, he
added, all he can do is "say a lot of Hail Marys."

*


HARPER'S --

October 5, 2009

THE PEOPLE v. THE TORTURE TEAM:
SIX QUESTIONS FOR LAW & ORDER'S RENE BALCER

By Scott Horton

http://harpers.org/archive/2009/10/hbc-90005824

"It is not disloyal to hold our officials to the highest standards of conduct."
That statement comes from a prosecutor near the end of the trial of a group of
senior Bush Administration officials. Law & Order, America's longest running
television program, put the Bush Administration's torture memo writers in the
dock in a homicide prosecution. In so doing, the writers made several points
that have been almost entirely neglected by the Beltway punditry -- for example,
that the core of the torture controversy revolves around homicides, and that
torture prosecutions by their nature involve conspiracy offenses implicating all
those in the decision-making chain. I put six questions to the episode's author,
and Law & Order's Executive Producer and Head Writer, Rene Balcer.

SH: You launched Law & Order's twentieth season with an episode focusing on the
potential culpability of one of the Bush Administration's torture lawyers. The
episode opens with the plight of Greg Tanner, a U.S. soldier who served at Abu
Ghraib, witnessed torture, suffered post-traumatic stress, and was then
separated from the military without medical assistance. Your programs are always
"torn from the headlines." Give us a sense of the cases you looked at in
constructing Greg Tanner. Alyssa Peterson? Eric Fair?

RB: My co-writer Keith Eisner and I were aware of the Fair and Peterson cases
and of many other instances of former participants in enhanced interrogations
who had difficulty processing and rationalizing their experience. In 2005, while
researching an episode of Law & Order Criminal Intent, I read interviews with
medical personnel, psychiatrists in particular, who had served as advisors to
such interrogations. Many of them had trouble justifying in their own minds
their participation and incremental violation of their Hippocratic oath to "do
no harm." This research indicated that torture permanently scars not only the
tortured but also the person ordered to conduct such interrogations. It seems
clear to me that torture injures everyone who comes into contact with it and
corrodes the country that abides it.

As for the military's unfair treatment of Tanner's ptsd, that topic had been
widely reported in the media and was the subject of a 2007 episode of Law &
Order. In general, I'm sympathetic to the decent and hapless footsoldier into
whose lap falls the unenviable duty of carrying out fubar policies.

SH: The episode's torture lawyer is Franklin, a former Justice Department
lawyer, now law professor, who shoots Tanner after being accosted in a parking
garage. He sounds like John Yoo and looks like Jay Bybee, so you've done an
interesting montage. Franklin exhibits real sangfroid in this episode -- almost
to the point of creepiness -- and he wields some unusual legal tricks to avoid
indictment, including a writ of prohibition and personally appearing before the
grand jury to talk them into a "no true bill." All of this is theoretically
possible, of course, but almost unknown in real criminal justice practice.
Weren't you straining the real world feel of Law & Order with these twists?

RB: On my watch, we've never done anything on Law & Order that was not legally
possible nor sustainable by an actual court decision. We have a number of former
prosecutors and defense attorneys on the payroll as advisors who keep us from
crossing the line. That said, we have found novel ways of using the legal tools
at our lawyers' disposal. In this case, I wanted to demonstrate that the lawyers
who wrote these memos weren't third-rate hacks. Many were from prestigious
schools and had graduated at the top of their class. And yet their memos often
seem like the work of first-year law students -- Yoo's memo bizarrely quotes a
health care statute's definition of an "emergency condition" to explain the
meaning of "severe pain" in the context of torture. These memos would not have
passed our own internal "Law & Order smell-test" of legal verisimilitude. That
these bright people could come up with such nonsense perhaps reflects that,
faced with the impossible task of legally justifying the President's use of
torture, they had to strain their legal wizardry to absurd limits. Instead, they
would have better served their bosses by telling them, "Nope, sorry, can't be
done. No way no how it's legal."

SH: You rested very heavily on John Yoo's actual language from memos and debates
for Franklin's justifications of what he did. The horrific torture incident that
Tanner describes also sounds like the torture-homicide of Manadel al-Jamadi.
Most of the debate has focused on waterboarding or other practices that torture
apologists justify as college fraternity pranks. But you come to focus squarely
on a homicide. Why?

RB: A murder case is far more compelling than a simple assault case -- the
stakes are higher, it commands attention. And since there were many actual cases
of torture-homicide resulting from the war on terror, we saw no reason to pull
our punches.

SH: In one of the most dramatic courtroom moments, you have a defense lawyer
confront an interrogation expert with the famous "ticking bomb" scenario, who
answers it quite simply. Are we hearing Ali Soufan combined with Matthew
Alexander?

RB: You heard what I've been hearing for years from a variety of professional
interrogators -- torture, physical abuse, and mental abuse don't yield reliable
information. I've been interested in the subject of interrogations for many
years, principally because of my friendship with the noted forensic psychiatrist
Dr. Park Dietz, who has used with consistent success an empathic approach to
elicit admissions and information from the most depraved and recalcitrant
offenders. Putting aside for a moment whether torture is legal or ethical or
consistent with our values, if we are interested in a results-based strategy to
gain actionable information, the overwhelming evidence -- including the recent
Trinity College neuroscience study -- seems to indicate that torture isn't the
way to go.

SH: Torture is a classical conspiracy offense, and your script makes that point
by joining the whole chain of command to the list of defendants. This has been
the ultimate political argument against a prosecution of the torture
conspirators -- namely, it would inevitably go to the top of the command. You
have a couple of dense scenes, but do you think you were able to unpack this
issue fairly enough?

RB: Given we only have 41 minutes of actual running time to tell our story,
probably not. But I feel the issue was raised in a credible manner -- if perhaps
not answered to everyone's satisfaction by our DA Jack McCoy. After all, it's
not his job to worry about where the political chips might fall; his job is only
to prosecute offenders. In writing this episode, I was reacting to the basic
unfairness of a real-world investigation that limits itself at the outset to
investigating wrongdoing by only the lowest-level operatives and contractors. In
many ways, they -- along with the guards and minders at the detainee camps --
are like mice trying their best to navigate a crazy maze not of their design.
Arguably they are the least culpable, while those who articulated, implemented,
and enabled a policy of torture should be the particular focus of a special
prosecutor's scrutiny.

SH: You got a lot of criticism from the right, with some of it implying that you
are carrying water for the Obama Administration -- a pretty strange criticism in
light of the direct criticism your DA expresses of their "look forward, not
backwards" shtick. In view of the criticisms you've heard, is there anything
you'd change if you were doing it again?

RB: I wouldn't change anything. What many of these critics fail to realize is
that Law & Order has always been an equal-opportunity offender, and if a
Democratic administration had implemented this despicable policy, our show would
have taken them to task for it. Ultimately the episode was advocating for the
public's right to inquire into what our government did and is doing in our name.
All great nations make mistakes. What is unique to the American system is that
powerful self-correcting mechanisms are enshrined in our Constitution -- checks
and balances, freedom of expression, freedom of the press, etc. Some on both
sides of the ideological spectrum would deny to others the exercise of those
mechanisms while appropriating it to themselves. We by nature mistrust authority
no matter who wields it -- and I think that's healthy. Though I disagreed with
him on the facts, I fully support Rep. Joe Wilson's right to call out President
Obama -- I just wish Democrats had had the balls to call out President Bush when
he was peddling his lies to Congress.

* * *