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NEWS DIGEST 2010.01.01 - date
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The New Yorker --

February 15, 2010
THE TRIAL
Eric Holder and the battle over Khalid Sheikh Mohammed.
by Jane Mayer

http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer

On December 5th, several hundred people gathered in Foley Square, in lower
Manhattan, and withstood a drenching rainstorm for two hours in order to send a
message to Attorney General Eric Holder. A JumboTron, set up by the protesters,
played clips of Holder's recent testimony before Congress, in which he explained
his decision to hold the trial of Khalid Sheikh Mohammed -- the self-proclaimed
planner of the terrorist attacks of September 11, 2001 -- and four co-
conspirators in the colonnaded federal courthouse flanking the square, rather
than in a military commission at Guantánamo Bay, Cuba. Members of the crowd
shouted at the screen: "Holder's gotta go!"; "Arrogant bastard!"; "Communist!"

Greg Manning, whose wife, Laura, was severely burned in the World Trade Center
attacks, stood before the crowd and said, "Thousands are already dead because of
Khalid Sheikh Mohammed's choices. We do not want to see ... hundreds of
thousands dead because of the Attorney General's choices."

Andrew McCarthy, the former Chief Assistant U.S. Attorney who led the
prosecution of the 1993 World Trade Center attacks, also gave a speech,
declaring that Holder didn't "understand what rule of law has always been in
wartime." He said, "It's military commissions. It's not to wrap our enemies in
our Bill of Rights."

"Traitor!" someone shouted.

Edith Lutnick, who works for the Cantor Fitzgerald Relief Fund, told the crowd,
"My brother, Gary, lost his life that day." The 9/11 victims, she said, "were
murdered by the terrorist Khalid Sheikh Mohammed, and we do not want him and his
fellow-terrorists tried in that building.... We need to tell Eric Holder that we
will be victims no more."

"Lynch Holder!" an onlooker cried.

One protester, Carolyn Walton, who works for a water-filtration company in
Manhattan, told me that Holder was "a Marxist mole." She asked, "How can someone
who is not an American have any right to our rights? Holder wants to help the
terrorists."

The rally was organized, in part, by Debra Burlingame, the sister of the pilot
Charles Burlingame, who was killed on 9/11 when Al Qaeda hijackers crashed the
plane he had been flying into the Pentagon. Burlingame is one of the three
founders of Keep America Safe, a new political-advocacy group. Her partners in
the venture, which is aimed at attacking the Obama Administration's national-
security decisions and vindicating those of the Bush Administration, are William
Kristol, the conservative pundit, and Elizabeth Cheney, the daughter of former
Vice-President Dick Cheney. The organization's political strategist is Michael
Goldfarb, a spokesman for Senator John McCain during his 2008 Presidential
campaign; among its funders is Mel Sembler, a conservative donor and a former
finance chairman of the Republican National Committee.

Despite the prominence of the demonstration's organizers, the campaign against
Holder's Justice Department was largely overlooked by the national media, which
considered the event a fringe affair. But the anger was growing, and it became
impossible to ignore on January 19th, when Scott Brown, a Republican, captured
the Senate seat left vacant by the death of Edward Kennedy, the Massachusetts
Democrat. As Eric Fehrnstrom, Brown's political consultant, put it to me
recently, the "most potent political issue" in the race was voter opposition to
the Justice Department's decision to extend customary legal protections to
suspected terrorists such as Khalid Sheikh Mohammed and Umar Farouk
Abdulmutallab, the Nigerian suspect who on Christmas Day attempted to detonate a
bomb on a Northwest Airlines passenger plane bound for Detroit. In a debate with
his Democratic opponent, Martha Coakley, Brown declared, "We're at war in our
airports, we're at war in our shopping malls. I have to be honest with you,
folks.... I'm scared at some of the policies I've heard."

In a television ad, Brown, who is in the Army National Guard, flashed a
photograph of himself in fatigues and declared, "Some people believe our
Constitution exists to grant rights to terrorists who want to harm us. I
disagree." Brown also announced his support for waterboarding suspected
terrorists -- a tactic that Holder, among others, has denounced as torture. As
Brown's attacks grew more pointed, Fehrnstrom said, Coakley got "bollixed up"
defending Obama's policies. He added, "The obvious follow-up is: Are you going
to read Osama bin Laden the Miranda warning if you catch him?"

After the Christmas Day incident, conservative pundits lambasted the Justice
Department's handling of Abdulmutallab, who had concealed in his underwear a
bomb that ignited but failed to explode. When the plane landed, Abdulmutallab
was taken to a hospital for treatment; at Holder's directive, he was arrested as
a criminal suspect. (The CIA, the CIA, and the Pentagon signed off on Holder's
decision.) CIA agents questioned Abdulmutallab for some fifty minutes, under
what is known as the "public-safety exception" to the right to remain silent. He
divulged time-sensitive intelligence: he had been trained in Yemen, by
affiliates of Al Qaeda, and had obtained explosives from them. After he received
medical treatment, a Justice Department source said, he started to "act like a
jihadi and recite the Koran." He stopped coöperating and demanded a lawyer, at
which point authorities read him his rights. On "Inside Washington," Charles
Krauthammer declared that it was "almost criminal" that Holder had allowed
Abdulmutallab access to an attorney. Rudy Giuliani, the former mayor of New
York, appeared on ABC, saying, "Why in God's name would you stop questioning a
terrorist?"

Joseph Lieberman, the Independent senator from Connecticut, released a statement
declaring that Abdulmutallab was "an enemy combatant and should be detained,
interrogated, and ultimately charged as such." Then, to the dismay of Justice
Department officials, the Obama Administration's top intelligence official,
Dennis Blair, the director of National Intelligence, appeared at a Senate
hearing and, under harsh questioning from Republicans, second-guessed Holder's
decision to turn Abdulmutallab over to the CIA (Blair later said that his
remarks had been "misconstrued.") Soon, even Democrats were attacking Holder's
decisions. In a letter to Obama, Dianne Feinstein, the chair of the Senate
Intelligence Committee, suggested that holding a trial in New York was
dangerous. "New York City has been a high-priority target since at least the
first World Trade Center bombing," she wrote. "The trial of the most significant
terrorist in custody would add to the threat."

The death blow was struck by New York's mayor, Michael Bloomberg, who had
previously pledged his support to Holder. On January 27th, Bloomberg distanced
himself from the Justice Department, saying that a trial in New York would be
too expensive. For months, companies with downtown real-estate interests had
been lobbying to stop the trial. Raymond Kelly, the commissioner of the New York
Police Department, had fortified their arguments by providing upwardly
spiralling estimates of the costs, which the federal government had promised to
cover. In a matter of weeks, in what an Obama Administration official called a
"classic City Hall jam job," the police department's projection of the trial
costs went from a few hundred million dollars to a billion dollars.

Senator Charles Schumer, of New York, quickly released a statement echoing
Bloomberg; the wisdom of moving the trial away from lower Manhattan, he said,
was "obvious." Then, on February 1st, Schumer told the Daily News that he
opposed the idea of a 9/11 trial taking place anywhere in New York State.
Officials in Pennsylvania and Virginia -- the two other states where the 9/11
attacks occurred -- began declaring their opposition to hosting the trials, too.

Bill Martel, an international-security expert at the Fletcher School, at Tufts
University, told me that Holder, having been impervious to the shifting public
mood, had been sucked into "a political riptide." The Christmas Day bombing
attempt, he noted, had come only a month after Nidal Malik Hasan, an Army
psychiatrist who had exchanged e-mails with radical Islamists, massacred
thirteen people at Fort Hood, Texas. Both incidents had revived public concern
about America's vulnerability to terrorism. Holder's decisions, Martel warned,
had "the makings of a sustained and self-inflicted political hemorrhage." He
added, "I think they're going to have to give up on civilian trials. And Eric
Holder is in for some pretty brutal days." Indeed, on January 31st, Senator
Lamar Alexander, of Tennessee, declared on Fox News that Holder should "step
down," for his inability to make "a distinction" between "terrorists who are
flying into Detroit, blowing up planes, and American citizens who are committing
a crime."

On January 11th, a few weeks before his plans for a trial at Foley Square fell
apart, Holder flew to Boston, to preside over the installation of a new U.S.
Attorney. That evening, he returned to Washington in the Justice Department's
Gulfstream jet. Holder, who had jokingly lamented that such perks wouldn't last
forever -- "I'm missing it already!" -- sat down, put on headphones, and blasted
one of his favorite songs, Jimi Hendrix's "Purple Haze." Holder, who is fifty-
nine, seemed determined not to let the tensions of Washington politics poison
his mood. He was equally determined not to capitulate on the idea of holding a
9/11 trial. "I don't apologize for what I've done," he told me at one point.
"History will show that the decisions we've made are the right ones." Holder
said that he regarded trying Khalid Sheikh Mohammed in a courtroom as "the
defining event of my time as Attorney General." But, he added, "between now and
then I suspect we're in for some interesting times."

Holder, despite the controversy he has inspired, has not actually pushed for
radical change. Indeed, critics in left-leaning legal circles have complained
that he has kept too many of George W. Bush's counterterrorism policies in
place. For example, Holder's Justice Department has continued blocking lawsuits
by people who were subjected to extraordinary rendition -- the practice of
sending suspected terrorists captured abroad to countries known for
administering torture -- on the ground that such litigation would expose state
secrets. Even some former members of the Bush Administration see more continuity
than change. Bradford Berenson, who served as a White House lawyer when the Bush
Administration was forging its controversial legal approach to terrorism, told
me that "from the perspective of a hawkish Bush national-security person the
glass is eighty-five per cent full in terms of continuity."

Holder told me that he was frustrated by much of the criticism over the handling
of Abdulmutallab. "What we did is totally consistent with what has happened in
every similar case" since 9/11, he said. "There's a desire to ignore the facts
to try to score political points. It's a little shocking." Without exception, he
noted, every previous terrorist suspect apprehended inside the country had been
handled as a civilian criminal. Even so, critics such as Krauthammer were
denouncing Holder for failing to send Abdulmutallab directly to Guantánamo. As a
senior national-security official in the White House put it, "It's a fantasy!
Under what alternative legal system can Special Operations Forces fly into
Detroit, and take someone away without court oversight?"

According to Kate Martin, the director of the Center for National Security
Studies, in Washington, the military can't simply grab suspects inside the U.S.
and hold them without charge or a hearing. "It violates the Constitution, which
extends to everyone inside the U.S.," she said. "You can't be seized without
probable cause. You have the right to due process, and to a trial by a jury of
your peers -- which a military commission is not." Confusion on this point may
derive from the Bush Administration's controversial handling of two suspected
terrorists, José Padilla and Ali Saleh Kahlah al-Marri. Both men were arrested
in the U.S. by law-enforcement officials, and indicted on criminal charges. But
Bush declared Padilla and Marri to be "enemy combatants," which, he argued,
meant that they could be transferred to military custody, for interrogation and
detention without trial. (Neither suspect provided useful intelligence.) The
cases provoked legal challenges, and in both instances appeals courts ruled that
Bush had overstepped his power. The Administration, not willing to risk a
Supreme Court defeat, returned the suspects to the civilian system.

For all the tough rhetoric of the Bush Administration, it prosecuted many more
terror suspects as criminals than as enemy combatants. According to statistics
compiled by New York University's Center on Law and Security, since 2001 the
criminal courts have convicted some hundred and fifty suspects on terrorism
charges. Only three detainees -- all of whom were apprehended abroad -- were
convicted in military commissions at Guantánamo. The makeshift military-
commission system set up by Bush to handle terrorism cases has never tried a
murder case, let alone one as complex, or notorious, as that of Khalid Sheikh
Mohammed, who will face the death penalty for the murder of nearly three
thousand people.

The Bush Administration obtained life sentences in the criminal courts for two
terror suspects arrested inside the U.S.: Richard Reid, the so-called shoe
bomber, and Zacarias Moussaoui, who was planning a second wave of plane attacks.
(Reid was read his Miranda rights four times.) When the Bush Justice Department
obtained these convictions, the process was celebrated by some of the same
people now criticizing Holder. Giuliani, after the Moussaoui trial, said, "I was
in awe of our system. It does demonstrate that we can give people a fair trial."

Holder told me that he was "distressed" that people "who know better" were
claiming that the courts were not up to the job of trying terrorists. He added
that he found it "exceedingly strange" to hear this argument from Giuliani, who
had been a zealous prosecutor. "If Giuliani was still the U.S. Attorney in New
York, my guess is that, by now, I would already have gotten ten phone calls from
him telling me why these cases needed to be tried not only in civilian court but
at Foley Square," Holder said.

There is no evidence suggesting that military commissions would be tougher on
suspected terrorists than criminal courts would. Of the three cases adjudicated
at Guantánamo, one defendant received a life sentence after boycotting his own
trial; another served only six months, in addition to the time he had already
served at the detention camp; the third struck a plea bargain and received just
nine months. The latter two defendants -- Salim Hamdan, a Yemeni who worked as
Osama bin Laden's driver, and David Hicks, an Australian who attended an Al
Qaeda training camp -- are now at liberty in their home countries, having been
released while Bush was still in office. It's impossible to know how these same
cases would have fared in the civilian system. But the case of John Walker
Lindh, the so-called American Taliban, offers a comparison between the two
systems, as it closely parallels the case of Yaser Hamdi, a Saudi-American who
was captured in the same place (Afghanistan) and at the same time (2001). Lindh,
who pleaded guilty in a criminal court, is now serving twenty years in prison.
Hamdi, who was declared an enemy combatant, was held in military detention,
without charge; in 2004, after a court challenge, he was freed, and is now in
Saudi Arabia.

Michael Mukasey, who was Holder's predecessor as Attorney General, has suggested
that the military system is better at making terrorists talk. Last month, in the
Wall Street Journal, he argued, "Had Abdulmutallab been turned over immediately
to interrogators intent on gathering intelligence, valuable facts could have
been gathered and perhaps acted upon." But the conventional court system has
proved surprisingly effective at extracting intelligence. Dozens of suspected
terrorists in the criminal system have coöperated with the government, usually
in exchange for leniency in sentencing. The government is currently receiving
valuable information from David C. Headley, who was indicted last December, in
Chicago, for his involvement in terrorism conspiracies in India and Denmark.
And, last week, the Justice Department confirmed that Abdulmutallab was now
coöperating with the CIA A department official noted, "He has an incentive to
talk in the criminal-justice system, which the other system doesn't offer." The
key to gaining Abdulmutallab's coöperation was the CIA's ability to enlist his
family in getting him to talk. Holder asked me, "Would that father have gone to
American authorities if he knew his son might be whisked away to a black site"
-- a secret prison set up in a foreign country -- "and subjected to enhanced
interrogation techniques? You are much more likely to get people coöperating
with us if their belief is that we are acting in a way that is consistent with
American values."

On January 13th, Holder discussed the controversies surrounding him, in a
conference room on the top floor of the Justice Department building. The walls
were hung with portraits, which Holder had chosen, of his favorite Attorneys
General. One was of Elliott Richardson, who resigned rather than follow
President Richard Nixon's demand that he halt the Watergate investigation.

Some of Holder's friends, who call him Mr. Nice Guy, wonder if he is as tough as
some of these predecessors. "Attorneys General should be feared," one legal
observer told me. "They have incredible power. Holder makes correct decisions on
the law, but he's not aggressive." Holder bristles at such characterizations.
His Secret Service code name is Fidelity, but he joked, "I'd like something like
The Hammer."

Though Holder has improved the morale at the Justice Department, he has had some
management difficulties. He did not get along with David Ogden, his deputy.
Ogden announced his decision to resign last December,** and has not been
replaced. A lawyer who is close to the Administration said, "Eric's weakness is
his management skills, but his strength is his gut."

Holder tried to address his critics with lawyerly detachment. Dick Cheney had
equated Holder's approach to handling terrorism with giving "aid and comfort to
the enemy" -- the legal definition of treason. Holder said of Cheney, "On some
level, and I'm not sure why, he lacks confidence in the American system of
justice." He added that he had seen documents making clear that Cheney's office
was the driving force behind the Bush Administration's most controversial
counterterrorism policies, especially those sanctioning brutal interrogations.
He said of Cheney, "I think he's worried about what history's judgment will be
of the role that he played in making decisions about everything from black sites
to enhanced interrogation techniques." Holder said that he doesn't know
Elizabeth Cheney, but noted, with a laugh, "She's clearly her father's
daughter."

Holder shook his head at Scott Brown's assertion that America's "laws are meant
to protect this nation, not our enemies." Such rhetoric, he said, was
"inconsistent with a little organization called the United States Supreme
Court." During the Bush years, U.S. courts consistently struck down claims that
detainees at Guantánamo, including Khalid Sheikh Mohammed, were beyond the reach
of U.S. and international law. Moreover, Guantánamo detainees receive legal
counsel that is paid for by the U.S. government. Holder said, "It's distressing
to me that on an issue that is truly a matter of life and death for this nation
people will find a way to make that a partisan issue."

Despite such comments, Holder is not naïve. He has spent almost his entire
career in the public arena, most of it at the Justice Department. After
graduating from Columbia Law School, in 1976, he became a prosecutor in the
department's public-integrity section, going after lawbreakers in both parties.
In 1988, President Ronald Reagan appointed him to the Superior Court in
Washington. Five years later, President Bill Clinton appointed him the District
of Columbia's U.S. Attorney; he was the first African-American to hold the post.
In 1997, he became Deputy Attorney General, under Janet Reno. Holder was a
lifeline at the Justice Department for Rahm Emanuel, then a senior White House
adviser, because communications were so strained between Clinton and Reno, over
such issues as her appointment of an independent counsel to investigate the
Monica Lewinsky scandal.

In 2001, Holder himself was embroiled in a scandal, for having supported
Clinton's last-minute pardon of the financier Marc Rich, who had fled the
country rather than face criminal charges; his ex-wife, Denise, was a
Presidential friend and fund-raiser. Holder never consulted with the prosecutors
in the case, infuriating them. Afterward, many of Holder's friends suspected
that he had let his desire to ingratiate himself with Clinton override what one
of them called "that gnawing uneasiness." Holder's actions have not been
forgotten. Andrew McCarthy, the former federal prosecutor, said, "He had a
background going into this that would have made him unconfirmable if he was a
Republican." Holder emerged from the scandal, a friend said, determined to
appear that he was above politics. "After being accused of not standing up to
that kind of pressure, he's establishing his independence," the friend said. "It
all goes back to Marc Rich."

As Attorney General, Holder has tried to depoliticize one of the most polarizing
issues facing the Administration: how to protect the country from terrorism.
David Vladeck, a former law-school classmate, who is now the director of the
Bureau of Consumer Protection, said, "His vision as Attorney General is to be
seen as a lawyer, and to get away from what was a partisan-infected Justice
Department. He doesn't want to be Ed Meese or John Ashcroft. He doesn't want the
Justice Department to be seen as another political agency. He's sent the
unmistakable message to the people at D.O.J. that after years of politicization
they are now going to do the right things, regardless of politics."

Karen Greenberg, the executive director of the Center on Law and Security, said
that a difficulty with recalibrating what was formerly called the "war on
terror" -- a term that Obama has shunned -- is that any change is seen as "a
slap in the face of all that Bush did." She added, "The Justice Department was
emasculated under Bush. Holder's trying to reassert its lead role in handling
the prosecution of terrorism, which Bush delegated to the Pentagon. It's not
minor. It's about bringing the whole approach to handling terrorists back inside
the rule of law. But it's a public rebuke, suggesting that for eight years his
predecessors betrayed American traditions." This is especially true in the case
of Khalid Sheikh Mohammed, for Holder is explicitly overriding the Bush
Administration's judgment that the case belongs in a military commission at
Guantánamo.

As a result, it is proving virtually impossible for Holder to make mid-course
legal corrections without sparking political fights over the Bush legacy. Many
of Obama's political advisers see such battles as exactly the kind of "wedge"
issues that alienate the independent voters they need. So far, polls show that
the President has repaired the Democrats' image problem on national-security
issues; his approval rating on handling terrorism is about fifty per cent, and
was unhurt by the Christmas Day fracas. The one national-security policy on
which recent public-opinion polls register extreme disapproval is the decision
to handle terror suspects as civilian criminals.

Holder's unpopular positions on terrorism issues have frustrated Obama's
advisers. The lawyer close to the Administration said, "The White House doesn't
trust his judgment, and doesn't think he's mindful enough of all the things he
should be," such as protecting the President from political fallout. "They think
he wants to protect his own image, and to make himself untouchable politically,
the way Reno did, by doing the righteous thing." On November 13th, when Holder
announced his plan to try the 9/11 defendants in New York, Obama was travelling
in Asia. He told reporters there, "We have to break ... this fearful notion that
somehow our justice system can't handle these guys." But as political tensions
mount it's unclear how far the White House will go to back Holder. Greg Craig,
Obama's first White House counsel, resigned under pressure in January, after
clashing with Rahm Emanuel, the White House chief of staff, over his attempts to
reverse Bush Administration counterterrorism policies.

Holder told me that he has no doubt that Obama supports him. They have shared
some private moments. Late last year, Holder accompanied Obama on a middle-of-
the-night visit to Dover Air Force Base. An Air Force plane had just delivered
eighteen bodies of soldiers and Drug Enforcement Administration officials who
had been killed that week, in Afghanistan. Holder said that Obama, after seeing
a hangar filled with caskets, sat alone in a nearby room. Holder added that he
"was struck by the fact that this guy has the weight of the world on his narrow
shoulders."

On January 5th, Obama held a national-security meeting in the White House
Situation Room to review how the Administration had failed to detect and prevent
the Christmas Day plot. Afterward, Holder said, Obama asked him to walk back to
the Oval Office with him. "We talk about these matters," Holder said. "The
decisions are, relatively, mine. I take responsibility for them. But these are
things where he is kept in the loop, and the direction he gives obviously has to
be factored into any decision I make." Holder declined to reveal details of
their recent discussion but said, "We are on the same page." He added, "He
recognizes that being Attorney General at this time is not the easiest job in
the world."

When Holder announced, last November, his decision to try Mohammed and his co-
conspirators in a federal courthouse, he predicted that it would be "the trial
of the century." It had taken him months to arrive at the best way to bring
Mohammed to justice. By the time he became Attorney General, the Bush
Administration had moved Mohammed -- whom the CIA took into custody seven years
ago, in Pakistan -- from a black-site prison to Guantánamo. His prosecution was
complicated by the fact that CIA interrogators had subjected him to torture,
including at least a hundred and eighty-three sessions of waterboarding.

Bush Administration officials, too, had recognized Mohammed's abuse as an
impediment to prosecution. After Mohammed arrived at Guantánamo, a team of CIA
and military interrogators tried to elicit from him and his co-defendants the
same confessions that the CIA had obtained about the 9/11 plot, but by using
only legal means of interrogation. (According to the Washington Post, he was
enticed with Starbucks coffee.) By 2008, the Bush Administration believed that
this so-called Clean Team had compiled sufficient evidence to charge Mohammed
and the others with capital murder. The cases were to be tried in military
commissions, which have more lenient rules of evidence than civilian courts. But
even in this forum, several outside experts warned, the Administration might
have trouble using any evidence that had originally been obtained with methods
that would "shock the conscience of the court." John D. Hutson, a former judge
advocate general, told the Washington Post that "there's something in American
jurisprudence called ‘fruit of the poisonous tree.' You can clean up the tree a
little, but it's hard to do."

In December, 2008, Mohammed and his co-defendants cast further legal uncertainty
over the proceedings at Guantánamo by insisting that they preferred to plead
guilty without a trial, and be put to death as "martyrs." The defense counsel
for two of the defendants protested that their clients were not competent to
make such a decision. The cases stalled while psychological evaluations took
place.

Amid this legal tumult, Obama assumed the Presidency. Days after taking office,
he signed executive orders suspending the military commissions at Guantánamo,
and calling for the closure of the detention facility within a year. He vowed to
end legal abuses that had made Guantánamo infamous, such as indefinite detention
without credible judicial review. He also banned torture and other cruel forms
of interrogation, and foreclosed the option of detaining terror suspects in
black sites. (Some of these practices had already been suspended by Bush, in the
face of court orders and public disapproval.)

In January, 2009, there was bipartisan support for closing down Guantánamo,
including from John McCain and from President Bush himself, who had said, "I'd
like it to be over with." General Colin Powell, Bush's former Secretary of
State, had declared, "If it was up to me, I would close Guantánamo not tomorrow
but this afternoon." Robert Gates, Bush's Secretary of Defense, whom Obama asked
to stay on, had already considered a plan to transfer the remaining two hundred
and sixty-five detainees -- including Mohammed -- to America. A former Pentagon
official told me that the plan, which never surfaced publicly, called for the
prisoners to be held in the Navy brig in Charleston, South Carolina. (Geoff
Morrell, a Pentagon spokesman, said, "The plan never left the building.")

Holder had been an outspoken critic of Bush's terrorism policies. In 2008, he
gave a speech to the American Constitution Society, and described some of the
steps Bush had taken as "excessive and unlawful." He said, "We owe the American
people a reckoning."

Obama's executive orders effectively put Holder in charge of the legal process
of closing Guantánamo. Most of the President's legal advisers believed that
virtually all the Guantánamo detainees could be tried in criminal courts, or
transferred to courts in other countries. Amy Jeffress, Holder's national-
security adviser, set up three interagency task forces to review the detainees'
cases. But the challenge proved far greater than expected. "There was no file
for each detainee," Jeffress told me. "The information was scattered all over
the government. You'd look at what the Department of Defense had, and it was
something, but, as a prosecutor, it wasn't what you'd like to see as
evidence.... It was pretty thin stuff." The Bush Administration, she said,
clearly "hadn't planned on prosecuting anyone. Instead, it was ‘Let's take a
shortcut and put them in Guantánamo.' "

In a speech last May, Obama declared that the Bush Administration's legal
approach had created "a mess." Among other problems, Obama's Justice Department
found itself under frequent attack in the courts for Bush-era policies.
Detainees were winning habeas-corpus hearings, and public-interest groups were
mounting challenges to the Bush Administration's stances on state secrecy,
surveillance, and torture. In addition, the Obama Administration faced
litigation over access to Bush-era documents. An informed source said of the
situation, "We were buried in an avalanche of shit."

Holder set up an elaborate review process for detainees. On Wednesday
afternoons, twenty senior government officials from the defense, intelligence,
legal, and foreign-policy bureaucracies met for hours in a secure, undisclosed
location, to weigh the case of each prisoner at Guantánamo. Sometimes they spent
weeks on just one case. Ambassador Daniel Fried, who was appointed by Obama to
manage the closure of Guantánamo, and who served in the Bush Administration,
told me that the process was "remarkably effective," but hovering in the
background was the fear of making a lethal mistake. A member of the detainee
task force said, "It's like the parole board. Do this long enough, and you'll
have a Willie Horton." But, Fried said, "the damage done by Guantánamo was
greater than the damage done by some of the low-level people let out." Also
great, he believed, was the cost of trying suspects in military hearings that
much of the world considered illegitimate. As the man in charge of persuading
other countries to accept Guantánamo detainees, he noted that "Holder's decision
to try the 9/11 defendants in the courts has made my job a lot easier."

Officials at the White House would not say the same. Last spring, a series of
Justice Department moves prompted attacks from Republicans, causing concern in
what's known as the White House "front office," where Emanuel and David Axelrod,
Obama's top political adviser, work. Most notably, the detainee task force
recommended the release of two Guantánamo detainees in America. The
recommendation received unanimous support from the principals committee of the
National Security Council. Among those who signed off were Holder and the
Cabinet secretaries dealing with defense, intelligence, foreign affairs, and
homeland security. The two detainees were Chinese Uighurs whom the courts had
ordered to be set free, after the Bush Administration had conceded that they
were not enemy combatants. But the government had been unable to find any
country willing to take them except China, where, as dissidents, they would be
jailed.

Lawyers in the Homeland Security and Justice Departments, along with the
Uighurs' attorneys, formed a plan to resettle the men in northern Virginia. But
the White House front office saw the release as politically toxic, and stood in
its way. In May, word of the secret plan leaked, causing Republicans in Congress
to declare their opposition to bringing any detainees to the U.S. At a White
House meeting, Obama suggested that he had been blindsided by the Uighur plan,
and that he disapproved of it.

Within days, both the House and the Senate had voted to strip a spending bill of
eighty million dollars that had been requested for the closing of Guantánamo.
Last fall, Congress passed legislation barring the government from bringing any
detainee from Guantánamo to America, except to stand trial. Elisa Massimino, the
president of Human Rights First, told me, "Politically, these issues are
poisonous. That's what Rahm Emanuel is looking at." But, she added, "You can't
finesse it, and you can't spin it. The President just has to lead the American
people away from fear."

Emanuel viewed many of the legal problems that Craig and Holder were immersed in
as distractions. "When Guantánamo walked in the door, Rahm walked out," the
informed source said. Holder and Emanuel had been collegial since their Clinton
Administration days. Holder's wife, Sharon Malone, an obstetrician, had
delivered one of Emanuel's children. But Emanuel adamantly opposed a number of
Holder's decisions, including one that widened the scope of a special counsel
who had begun investigating the CIA's interrogation program. Bush had appointed
the special counsel, John Durham, to assess whether the CIA had obstructed
justice when it destroyed videotapes documenting waterboarding sessions. Holder
authorized Durham to determine whether the agency's abuse of detainees had
itself violated laws. Emanuel worried that such investigations would alienate
the intelligence community. But Holder, who had studied law at Columbia with
Telford Taylor, the chief American prosecutor in the Nuremberg trials, was
profoundly upset after seeing classified documents explicitly describing CIA
prisoner abuse. The United Nations Convention Against Torture requires the U.S.
to investigate credible torture allegations. Holder felt that, as the top law-
enforcement officer in the U.S., he had to do something.

Emanuel couldn't complain directly to Holder without violating strictures
against political interference in prosecutorial decisions. But he conveyed his
unhappiness to Holder indirectly, two sources said. Emanuel demanded, "Didn't he
get the memo that we're not re-litigating the past?"

Last spring, under pressure from the defense establishment, Obama decided to
reform the military commissions rather than terminate them, to the
disappointment of his liberal base. A protocol was drafted, directing the
Pentagon and the Justice Department to work together in settling turf battles.
The presumption, the draft said, was that detainees should be tried in civilian
courts unless there were compelling reasons not to do so. Holder was put in
charge of deciding which legal system was appropriate for each Guantánamo
detainee.

Some legal experts regarded the process as odd, since it removed the President
from taking the lead role. Philip Bobbitt, a law professor who served in the
National Security Council under Clinton, said the protocol made Obama "look as
if he's not in charge." A government official involved in the process told me,
"My sense is that Obama wanted the Attorney General to make the call."

Last July, Holder assigned eight experienced criminal prosecutors from the
Southern District of New York and the Eastern District of Virginia to build the
best criminal case they could against Mohammed and his co-conspirators. They had
until October 1st to investigate. The prosecutors gathered fresh evidence from
around the globe, rendering the military's case comparatively weak. Neil
MacBride, the U.S. Attorney who represents Virginia's Eastern District,
participated in the process, and said, "The prosecutors came together, and
produced hundreds of pages of analysis that was granular, and evidence-
specific." Many countries that had refused to coöperate with military
commissions at Guantánamo were much more favorably disposed to criminal trials.
Among the countries that stood willing to provide evidence and witnesses for
court prosecutions were Germany, France, and Great Britain.

In weighing the cases of Mohammed and his co-conspirators, Holder conferred with
top Pentagon lawyers, including Jeh Johnson, the Defense Department's general
counsel, and William Lynn, the Pentagon's head of detainee affairs. The
Pentagon's prosecutors were initially reluctant to relinquish the cases, but in
the end supported the decision. Holder then picked the Pentagon to prosecute
five key suspects in the bombing of the U.S.S. Cole, a Navy ship attacked in
Yemen by Al Qaeda in 2000. Sarah Mendelson, a director at the Center for
Strategic and International Studies, in Washington, followed the deliberations
closely, and told me, "You could see Holder negotiating."

Holder, MacBride said, also conferred with his counterparts in the intelligence
community about any possible jeopardy to national-security secrets "if we went
forward with a full-throated prosecution of K.S.M." Critics have raised worries
that an open trial, which would require the government to reveal the names of
witnesses and sources of evidence, could tip off enemies of the U.S. about
sensitive security matters. A lawyer familiar with the discussion told me,
"Suffice it to say, if there was serious concern about revelation of sources and
methods by the intelligence community you would have heard a lot of howling."

Last fall, Holder selected the offices led by MacBride and Preet Bharara, the
U.S. Attorney for the Southern District of New York, to prosecute the criminal
case. Bharara, addressing the national-security concerns, said of Holder, "This
is not a rogue Attorney General. These are reasoned, considered decisions made
by people in America who have the greatest knowledge and concern about the
revelation of these materials. And, with all due respect, they have greater
knowledge than the critics."

Holder told me that the "critical factor" in his choice of civilian prosecutors
was that they could build a case independent of the Clean Team, and of the CIA's
tainted confessions. His prosecutors, Holder said, had "constructed a case that
uses materials and evidence that does not derive from the techniques that were
controversial," which would "maximize our chances for success." It was a driving
concern to Holder that the case not rest on torture. "It's a statement about
what this Administration is about," he said. "It's a statement about this
Attorney General. We are not going to use the products of interrogation
techniques that this President has banned."

MacBride, like Holder, emphasizes the tactical advantages of the
Administration's approach. "There are gigantic challenges to attempting to
cleanse concededly coerced statements," he said. In fact, as Holder was making
his decision the federal court in Washington was weighing another case involving
the admissibility of statements made freely, after a prisoner had been tortured.
In a decision that signalled trouble for the viability of Clean Team-type
prosecutions, U.S. District Court Judge Gladys Kessler ruled that the government
must release another Guantánamo prisoner, Farhi Bin Mohammed, even though CIA
agents had elicited incriminating evidence against him from a fellow-detainee,
Binyam Mohamed, without coercion. Her reason was that interrogators in Morocco
had, among other abuses, cut Binyam Mohamed's penis with a scalpel. After such
mistreatment, Kessler found, it was impossible to regard later statements as
free of taint.*

In Holder's view, avoiding the Clean Team's work was also smart in terms of
winning the "hearts and minds" of the Islamic world. "Values matter in this
fight," he said. "We need to give those who might follow these mad men a good
sense of what America is, and what America can be. We are militarily strong, but
we are morally stronger."

At the White House, Emanuel, who is not a lawyer, opposed Holder's position on
the 9/11 cases. He argued that the Administration needed the support of key
Republicans to help close Guantánamo, and that a fight over Khalid Sheikh
Mohammed could alienate them. "There was a lot of drama," the informed source
said. Emanuel was particularly concerned with placating Lindsey Graham, the
Republican senator from South Carolina, who was a leading proponent of military
commissions, and who had helped Obama on other issues, such as the confirmation
of Supreme Court Justice Sonia Sotomayor. "Rahm felt very, very strongly that it
was a mistake to prosecute the 9/11 people in the federal courts, and that it
was picking an unnecessary fight with the military-commission people," the
informed source said. "Rahm had a good relationship with Graham, and believed
Graham when he said that if you don't prosecute these people in military
commissions I won't support the closing of Guantánamo.... Rahm said, ‘If we
don't have Graham, we can't close Guantánamo, and it's on Eric!' "

At Emanuel's urging, Holder spoke with Graham several times. But they could not
reach an agreement. Graham told me, "It was a nonstarter for me. There's a place
for the courts, but not for the mastermind of 9/11." He said, "On balance, I
think it would be better to close Guantánamo, but it would be better to keep it
open than to give these guys civilian trials." Graham, who served as a judge
advocate general in the military reserves, vowed that he would do all he could
as a legislator to stop the trials. "The President's advisers have served him
poorly here," he said. "I like Eric, but at the end of the day Eric made the
decision." Last week, Graham introduced a bill in the Senate to cut off funding
for criminal trials related to 9/11.

Behind Graham's opposition was an insistence that Obama not treat military
commissions as second-class justice. Given the commissions' erratic track
record, the argument strikes many legal observers as dubious. But once Obama had
agreed to keep the commissions going he forfeited the option of openly
criticizing them. David Cole, a law professor at Georgetown University, said,
"They can't say military commissions are less legitimate, because they're still
using them. But if they tried K.S.M. in a military commission they'd lose any
chance of having a conviction seen as legitimate by the rest of the world."

Once Holder had settled on taking the 9/11 cases to court, the remaining
question was where. A confidential security study by the U.S. Marshals Service
tipped the decision toward Manhattan. The marshals concluded that the courthouse
on Foley Square was by far the safest option; it has underground tunnels through
which defendants can be transported from the adjacent Metropolitan Correctional
Center. In addition, Holder was mindful of a federal death-penalty statute that
calls for capital-murder trials to be held in a state that is connected to the
crime. The choice also may have had special significance for Holder because he
was born and raised in New York City -- in Queens, near LaGuardia Airport. His
mother still lives in the city, and his brother William, a retired Port
Authority police officer, lost several friends and colleagues on 9/11. In
announcing his decision, Holder stressed that, "after eight years of delay,
those allegedly responsible for the attacks of September 11th will finally face
justice. They will be brought to New York -- to New York -- to answer for their
alleged crimes in a courthouse just blocks away from where the Twin Towers once
stood."

Hours before he went public, Holder spoke with several New York officials,
including Bloomberg, Schumer, and Governor David Paterson, all of whom pledged
their support. Bharara, the U.S. Attorney, informed Commissioner Kelly. Holder
then called Obama to relay his decision. Everything seemed in place. After
Holder announced the plan, Bloomberg said, "It is fitting that 9/11 suspects
face justice near the World Trade Center site, where so many New Yorkers were
murdered."

But the Obama Administration's political preparations for a controversial trial
were less thorough than those made by previous Administrations. In 1995, Justice
Department officials spent months laying the groundwork for trying the bomber
Timothy McVeigh in Oklahoma City. Detailed cost estimates were made, and there
was extensive outreach to local officials, victims' families, and security
personnel. (Ultimately, a judge ordered the trial moved to Colorado.) By
comparison, local officials in New York have said that they were only glancingly
consulted. And, when the Foley Square protest made clear that some families of
9/11 victims were upset by the idea of a civilian trial, the White House barely
reacted, and did not rally 9/11 families who favor a trial.

Now that Bloomberg, Kelly, and Schumer have withdrawn their support, the Justice
Department is in retreat, and Holder is scrambling to find a venue for "the
trial of the century." Kate Martin, the Center for National Security Studies
director, warns, "We can't have a situation where political pressure forces the
federal government to forgo criminal prosecution. That would mean the system is
fundamentally broken." Bill Martel, of Tufts, said, "When public fear coalesces,
it generates forces that are almost uncontrollable by the political leadership."

Late last month, at home, in Northwest Washington, Holder addressed those who
have suggested that he and Obama are too weak to take on terrorism. "This macho
bravado -- that's the kind of thing that leads you into wars that should not be
fought, that history is not kind to," he said. "The quest for justice, despite
what your contemporaries might think, that's toughness. The ability to subject
yourself to the kind of criticism I'm getting now, for something I think is
right? That's tough." He paused, and added, "This is something that can get a
rise out of me, the notion that somehow Eric Holder and Barack Obama, this
Administration, is not tough. We have the welfare of the American people in our
minds all the time. We'll fight our enemies, and we'll do that which is
necessary, and we won't turn our backs on the values and traditions that have
made this country great. That is what is tough." ?

[ * Corrections, February 5, 2010: The original text stated that Binyam Mohamed
had been tortured during an interrogation related to his own case, and that he,
not Farhi Bin Mohammed, was released by Judge Kessler. ]

[ ** Ogden announced his decision to resign last December; he did not resign
last December, as originally stated. ]

*


New York Times --

February 14, 2010
AFTER 9/11 TRIAL PLAN, HOLDER HONES POLITICAL EAR
by Jodi Kantor and Charlie Savage

http://www.nytimes.com/2010/02/15/us/politics/15holder.html

WASHINGTON -- Last winter, when Attorney General Eric H. Holder Jr. called the
United States a "nation of cowards" for avoiding frank conversations on race,
President Obama mildly rebuked him in public.

Out of view, Mr. Obama's aides did far more. Rahm Emanuel and Jim Messina, the
White House chief and deputy chief of staff, proposed installing a minder
alongside Mr. Holder to prevent further gaffes -- someone with better "political
antennae," as one administration official put it.

When he heard of the proposal at a White House meeting, Mr. Holder fumed; soon
after, he confronted his deputy, David W. Ogden, who knew of the plan but had
not alerted his boss, according to several officials. Mr. Holder fought off the
proposal, signaling that his job was about the law, not political messaging.

A year later, he is no longer so certain. His most important plan -- to try
Khalid Shaikh Mohammed, the self-described architect of the Sept. 11 attacks, in
federal court in Manhattan -- collapsed before it even began, after support from
the public and local officials withered.

Now Mr. Holder has switched from resisting what he had considered encroachment
by White House political officials to seeking their guidance. Two weeks ago, he
met with advisers there to discuss how to unite against common foes. They agreed
to allow Mr. Holder, who has not appeared on a Sunday talk show since entering
office, to speak out more; he agreed to let them help hone his message.

The political attacks over terrorism cases were "starting to constrain my
ability to function as attorney general," he said in an interview last week. "I
have to do a better job in explaining the decisions that I have made," Mr.
Holder also said, adding, "I have to be more forceful in advocating for why I
believe these are trials that should be held on the civilian side."

But now Mr. Holder is in the awkward position of pushing for an approach that he
acknowledges he would accept defeat on. The administration hopes to announce a
new venue for the Sept. 11 trial within three weeks, he said last Tuesday. But
Congress could pass legislation requiring that Mr. Mohammed be tried by a
military commission, or Mr. Obama himself could change direction.

"You always have to be flexible," Mr. Holder said, allowing that justice could
be served in a commission trial, too, and praising generals who "adapt their
game plans" as the situation changes.

In interviews, White House officials uniformly conveyed support, even sympathy,
for Mr. Holder. "He's in a very tough spot," said David Axelrod, a senior
adviser to Mr. Obama, who added that he would help Mr. Holder with a
communications strategy only after the legal decisions had been made. "All he
wants to do is bring these people to justice."

The coming weeks could determine the ultimate shape of Obama-era detainee
policy. They could also define the sort of attorney general Mr. Holder turns out
to be: how unyielding, how capable of persuading those inside the administration
-- including Mr. Obama -- and outside to accept his judgment.

He arrived determined to assert the Justice Department's independence. A self-
described "student of history," he outfitted his conference room with reminders
of what it takes to join the ranks of the most respected attorneys general:
portraits of lionized predecessors, including some who defied their presidents
or restored the Justice Department after scandal.

But Mr. Holder acknowledges that national security crises make it harder to
answer the perennial question of where the Justice Department's authority stops
and the White House's begins. And he says he wants to avoid a repeat of the
sometimes strained relationship that former Attorney General Janet Reno, whom he
served as deputy, had with President Bill Clinton.

"I'm part of this team," he said, adding, "I've experienced the other side,
where the department has lost touch with the administration that it was a part
of, and I'm not going to let that happen."

When it comes to traditional criminal justice issues, like white-collar crime
and sentencing reform, Mr. Holder holds views accrued over decades as a
prosecutor, judge, Justice Department official and lawyer in private practice.

But his national security résumé is short, his genial temperament may be
unsuited to political combat, and his approach to terrorism is guided more by
case-specific pragmatism than an overarching ideology reducible to sound-bites.

"Eric is an on-the-merits guy," said Reid Weingarten, a Washington lawyer and a
close friend from Mr. Holder's early days at the department, three decades ago.
"Case by case. Does that work in a changing world?"


Playing Against Type

Offices of high-ranking officials are usually dioramas of status and authority.
Last week, Mr. Holder's looked more like a professor's messy den. Stacks of
unframed family snapshots sat next to a print-out memorializing three Drug
Enforcement Agency officials who were killed in Afghanistan in October; Mr.
Holder said he flips to a different agent's biography each day.

Two books he recently started reading -- "The Girl With the Dragon Tattoo," a
Swedish mystery-thriller, and "Slavery by Another Name," about its unofficial
persistence into 20th-century America -- were half-hidden amid papers that
spilled everywhere. Some display shelves were still bare.

In person, Mr. Holder, 59, seems startlingly atypical of the species to which he
belongs: star prosecutor, top official. He has little swagger, speaking softly
with an earnestness leavened by wry humor. Interviews with him and more than 40
former and current colleagues suggested a man who has succeeded by playing
against type: he is mild, self-deprecating, even eager to please. Informed by
aides that this or that Republican has insulted him, he just nods or rolls his
eyes.

In meetings with fellow high-level officials, he is known more for listening
attentively than for driving the conversation toward his desired result. He says
his most dreaded task is enduring extremely long meetings; though busy, he
cannot bring himself to insult people by giving them less time.

Within the department, he is admired for his modest "I'm one of you" approach.
But outside, his style makes him a more puzzling figure.

"His easy-going manner and even-keeled personality is both a strength and a
weakness," said Gregory B. Craig, who recently left the post of White House
counsel. "If you've seen him perform, there is an easiness, an availability and
a desire to accommodate about him that makes him easy to work with. But it also
gives the impression that he is not tough or determined, when precisely the
opposite is the case."

Asked why he wanted to be attorney general, Mr. Holder did not mention national
security issues; instead he said he took the job to put a department he loves on
track after scandals during the administration of President George W. Bush.
Still, just after Mr. Obama's inauguration, the president asked Mr. Holder to
lead the effort to resolve the fate of the detainees at the military prison at
Guantánamo Bay, Cuba.

It was not the first time Mr. Obama had entrusted him with a crucial matter. Mr.
Holder has a longer, more personal relationship with him than most other cabinet
members do. They are the first black president and attorney general, and yet
neither is from a typical African-American background. (Mr. Holder's father and
maternal grandparents were from Barbados.) They share Ivy League degrees, low-
key natures and a love of long, intricate legal discussions.

An early backer in the presidential contest, Mr. Holder rebutted charges that
Mr. Obama was not "black" enough, prepared him for debates and led the vice-
presidential search. Michelle Obama and Mr. Holder's wife, Sharon Malone, a
physician, have become close; the two families have shared pizza nights and
birthday celebrations.

At work, the president has often sided with Mr. Holder on close calls -- for
instance, the decision to release Bush-era memorandums asserting that
interrogators for the Central Intelligence Agency could lawfully employ harsh
techniques despite antitorture laws.

Mr. Holder's relationship with Mr. Emanuel and some other advisers has been
different. To limit direct political influence on law enforcement matters -- a
touchy issue after the Bush White House was accused of politicizing the Justice
Department -- certain messages to and from the Justice Department were supposed
to travel through the White House counsel's office, but some seemed to get lost
in transit.

Mr. Emanuel and others also worried that political fights over national security
issues could hamper progress on the administration's fundamental goals, like
overhauling health care, and seemed to lack confidence in Mr. Holder as an
administration spokesman on the volatile issue of terrorism detainees.

Mr. Holder bristles at that view. "I am not a political naïf," he said in the
interview.

Even some friends, however, say that managing public opinion is not his
strength. "Eric is not a politician," said Christopher Edley Jr., dean of the
law school at the University of California, Berkeley. "He is a superb lawyer
with rich experience working in political environments, but not a politician."


Different Perspectives

After his family goes to bed, Mr. Holder often stays up past midnight at a round
kitchen table in his Northwest Washington home, reading briefing material on
death penalty cases or, last autumn, files related to his most important issue,
the Sept. 11 trial venue. He studied two proposals: one by military lawyers who
handled the case under the Bush administration, the other a new strategy from
civilian prosecutors.

At the White House, Mr. Emanuel was worried. He spoke frequently with Senator
Lindsey Graham, a South Carolina Republican who has worked with the
administration on closing the Guantánamo prison and on climate change
legislation, but who is a staunch proponent of military prosecutions for
terrorists. Mr. Emanuel urged Mr. Holder and Mr. Graham to talk.

"Of all the issues they have dealt with, this is the one that could bring the
presidency down," Mr. Graham said he told each, adding: "Most Americans don't
look at these folks as common criminals who were trying to rob the liquor store.
They look at them as dangerous terrorists."

Mr. Emanuel, who favored a military trial for the Sept. 11 detainees, said his
disagreement with Mr. Holder is rooted in different perspectives, not
personalities. "You can't close Guantánamo without Senator Graham, and K.S.M.
was a link in that deal," he said, referring to Mr. Mohammed.

But Mr. Holder focused on how the case would play inside the courtroom. He told
colleagues that the civilian option was more likely to deliver swift, sure
justice.

Unlike the civilian prosecutors, the military team built its case around
detainee confessions that are likely to raise challenges over whether they were
tainted by torture. The commission system's prosecutors and judges were less
experienced; its rules are a work in progress, with no clear answer to questions
like whether defendants may plead guilty to capital offenses; and its legality
is untested, so the Supreme Court might overturn any guilty verdict.

"The attorney general briefed the White House team on his analysis," said
Valerie Jarrett, a White House adviser, "and the decision was made to defer to
him, because ultimately it was his decision."

But on Nov. 13, when he announced that Mr. Mohammed and four co-conspirators
would face a civilian trial, Mr. Holder did not explain the problems with the
commissions, perhaps because that same day he sent five other detainee cases to
the military.

In the news conference for the announcement, he portrayed himself as above the
fray. "To the extent that there are political consequences, well, you know, I'll
just have to take my lumps," he said.

Still, he was not entirely uncalculating. In a show of toughness, he announced
that prosecutors would seek death sentences.

The White House, wanting to move on quickly, overruled Mr. Holder's request for
more public appearances to explain the decision, administration officials said.
In the resulting vacuum, critics denounced the civilian trial plan as a soft-on-
terror capitulation to liberals.

At home a few weeks later, on Christmas Day, Mr. Holder had just taken an iPhone
snapshot of a turkey when one of his children called out: the Justice Department
Command Center was on the line. There had been an incident aboard a jetliner
bound for Detroit.

Soon after, he told subordinates to recalibrate their thinking about terrorism
issues. "It's a new day," Mr. Holder said.

He quickly found out just how different it would be. Republicans attacked the
decision to charge the man accused of trying to blow up the jetliner, Umar
Farouk Abdulmutallab, in the criminal justice system, even though they had not
objected when the Bush administration handled many other cases similarly.

And amid a wave of terrorism fears, New York officials devised a staggeringly
costly security plan for the Sept. 11 trial. Within weeks, his plans for that
trial were crumbling.


The Final Call

As the interview ended, Mr. Holder pointed out a red plastic disc on his desk, a
gag gift that has turned into a ritual. Each night when he leaves the office, he
presses the button. "That was easy!" the device declares, an ironic commentary
on another bedeviling day.

Officials are now examining options for a civilian trial for the Sept. 11
defendants elsewhere in New York, Virginia or Pennsylvania -- the three attack
sites. A fallback is a military commission back at Guantánamo.

Republicans continue to criticize Mr. Holder as "thinking of terror attacks
against the United States as criminal acts as opposed to acts of war," as former
Vice President Dick Cheney put it Sunday on the ABC program "This Week." (Mr.
Holder says they are both.)

Last fall, White House officials emphasized that the trial venue was the
attorney general's choice alone. That is no longer clearly the case. Asked who
would make the decision, Mr. Holder gave a long pause and exhaled audibly.

"I think that I make the final call," he said, "but if the president is not
happy with that final call, he has the ability to reverse it."

Meanwhile, Mr. Graham sounds increasingly confident about his bill to block a
civilian Sept. 11 trial; an earlier version failed 54 to 45, but the political
mood changed after Christmas, he said.

Asked whether Mr. Obama remains committed to a civilian trial, a White House
official began to say yes, but halted for fear of later recanting.

Some administration officials spoke in despair about the apparent freefall of
the effort to restore what they see as a rule-of-law approach to combating
terrorism. They worry that the administration will be pushed into trying all
foreign terrorism suspects in military commissions -- a far more sweeping
approach than even President Bush advocated.

Asked if he would still want his job if that happened, Mr. Holder quickly said
yes. "There are a whole variety of reasons I want to be attorney general," he
said, "a whole variety of things that I do as attorney general that go beyond
national security."

Jim Garland, a close aide to Mr. Holder, said the attorney general frequently
tells subordinates to "do the right thing" no matter what. Mr. Holder picked up
the motto in his early days at the Justice Department, prosecuting corrupt
public officials in the wake of Watergate.

But even back then, said Lee Radek, a colleague from those years, the phrase was
something of an inside joke.

"The hard thing is figuring out what the right thing to do is," he said.

[ Peter Baker contributed reporting. ]

*


Harper's --

January 19, 2010

THE OFFICIAL RESPONSE BEGINS

by Scott Horton

http://harpers.org/archive/2010/01/hbc-90006395

When a cover-up is exposed, nothing is more telling than the first reactions
from those who are involved. Do they maintain their stories and face potentially
aggravated consequences? Or do they simply remain silent? In making this choice,
they often telegraph the depth of their anxiety and concern.

Last night on MSNBC's Countdown with Keith Olbermann, I focused on the first
responses to "The Guantanamo 'Suicides.'" Colonel Michael Bumgarner, the former
commander at Camp America, had sent an email to the Associated Press, the text
of which AP confirmed to me, in which he said he would have to get clearance
from the Defense Department to speak, but then stated:

    "This blatant misrepresentation of the truth infuriates me. I don't know who
    Sgt. Hickman is, but he is only trying to be a spotlight ranger. He knows
    nothing about what transpired in Camp 1, or our medical facility. I do, I
    was there."

This statement merits closer inspection. The first sentence is a classic
nondenial denial. It appears on the surface to deny part of the account, but in
fact denies nothing. Bumgarner needs to state specifically what allegations he
considers inaccurate. His failure to do so is telling.

The second statement is an attempt to frame the conflict in terms of a
controversy between Sergeant Hickman and himself, which he leads into by saying
he doesn't even know who Hickman is. That statement is demonstrably false. As we
confirmed with Defense Department records, Bumgarner recommended Hickman for a
medal (shown below) based on his cool-headed approach to defusing a prison riot
on May 18, 2006. Moreover, Hickman was selected as NCO of the Quarter at
Guantanamo, a fact the camp commander would certainly have known at the time. In
any case, the key points in which Bumgarner figures do not rest on Hickman's
accounts alone -- they are corroborated by a series of additional witnesses, as
well as by published accounts in which Bumgarner himself is extensively quoted.

Hickman's Army Commendation Medal certificate, signed by Baumgarner

The third statement presents Bumgarner with even more serious problems. He
denies that Hickman was present or has knowledge of what transpired at Camp 1
and the detainee clinic on the night of June 9. "I was there," he says. Let's be
very clear about this: Either Bumgarner lied in a formal statement to NCIS, or
he lied to AP. In his formal account, Bumgarner addressed this point directly.
"On the night of 09JUN06, I was not in the camp," he writes, "I had spent the
evening at Admiral Harris's house." (This can be found on pp. 1059-60 of the
NCIS evidence file, and can be examined here [PDF, 1.1M] on page 6 of the
original document.) This account matches the recollection of other witnesses
cited in Admiral Harris's AR 15-6 statement, especially the statements beginning
at p. 118. In all these accounts, Colonel Bumgarner does not arrive at the camp
until 12:48 a.m. on the morning of June 10. The operative events of the
narrative furnished by the guards occurred between 7:00 p.m. and midnight --
long before Bumgarner's arrival on the scene.

The Justice Department response is also informative. It was confronted with
several allegations: that the FBI had been involved in a cover-up from the first
days after the deaths, launching a raid designed to intimidate witnesses from
speaking openly; that the Justice Department may have made repeated misleading
statements to federal judge James Robertson in furtherance of the cover-up; and
that the Department claimed to have concluded its investigation into Hickman's
story before contacting witnesses who would have, and did, corroborate it.

The Justice Department had no response to any of these serious allegations.
Instead, in a January 18 e-mail, department spokesman Laura Sweeny claimed that
two of the witnesses interviewed by the department had misremembered the names
of the lawyers present at those meetings. She refused to address any of the
other allegations in the article. Instead, she insisted that I note that Justice
had "conducted a thorough inquiry into this matter, carefully examined the
allegations, found no evidence of wrongdoing and subsequently closed the
matter." And then she said, as she had when I contacted her in reporting the
story, that she would not arrange an interview with any of the officials
involved in the matter.

This is all classic misdirection, an attempt to make the story not about the
crimes at Guantanamo but the minutes of meetings in Baltimore and Columbia.
Still, the fact that the Justice Department is unwilling to say who was at these
brief interviews speaks volumes. It does not deny that the interviews occurred,
nor that the descriptions of the meetings are otherwise accurate, nor even that
the lawyers identified were in fact involved in the investigation. It simply
insists that the team conducting these interviews not be identified.

Of course, this adamant insistence on official anonymity does nothing to dispel
the accusation of cover-up. Just the opposite: it suggests that the lawyers and
FBI agents involved quite urgently wish not to have their names associated with
it. And who could blame them?

*


Harpers --

January 18, 2010

THE GUANTANAMO "SUICIDES":
A CAMP DELTA SERGEANT BLOWS THE WHISTLE

by Scott Horton

http://harpers.org/archive/2010/01/hbc-90006368

1. "ASYMMETRICAL WARFARE"

When President Barack Obama took office last year, he promised to "restore the
standards of due process and the core constitutional values that have made this
country great." Toward that end, the president issued an executive order
declaring that the extra-constitutional prison camp at Guantanamo "shall be
closed as soon as practicable, and no later than one year from the date of this
order." Obama has failed to fulfill his promise. Some prisoners are being
charged with crimes, others released, but the date for closing the camp seems to
recede steadily into the future. Furthermore, new evidence now emerging may
entangle Obama's young administration with crimes that occurred during the Bush
presidency, evidence that suggests the current administration failed to
investigate seriously -- and may even have continued -- a cover-up of the
possible homicides of three prisoners at Guantanamo in 2006.

Late in the evening on June 9 that year, three prisoners at Guantanamo died
suddenly and violently. Salah Ahmed Al-Salami, from Yemen, was thirty-seven.
Mani Shaman Al-Utaybi, from Saudi Arabia, was thirty. Yasser Talal Al-Zahrani,
also from Saudi Arabia, was twenty-two, and had been imprisoned at Guantanamo
since he was captured at the age of seventeen. None of the men had been charged
with a crime, though all three had been engaged in hunger strikes to protest the
conditions of their imprisonment. They were being held in a cell block, known as
Alpha Block, reserved for particularly troublesome or high-value prisoners.

As news of the deaths emerged the following day, the camp quickly went into
lockdown. The authorities ordered nearly all the reporters at Camp America to
leave and those en route to turn back. The commander at Guantanamo, Rear Admiral
Harry Harris, then declared the deaths "suicides." In an unusual move, he also
used the announcement to attack the dead men. "I believe this was not an act of
desperation," he said, "but an act of asymmetrical warfare waged against us."
Reporters accepted the official account, and even lawyers for the prisoners
appeared to believe that they had killed themselves. Only the prisoners'
families in Saudi Arabia and Yemen rejected the notion.

Two years later, the U.S. Naval Criminal Investigative Service, which has
primary investigative jurisdiction within the naval base, issued a report
supporting the account originally advanced by Harris, now a vice-admiral in
command of the Sixth Fleet. The Pentagon declined to make the NCIS report
public, and only when pressed with Freedom of Information Act demands did it
disclose parts of the report, some 1,700 pages of documents so heavily redacted
as to be nearly incomprehensible. The NCIS report was carefully cross-referenced
and deciphered by students and faculty at the law school of Seton Hall
University in New Jersey, and their findings, released in November 2009, made
clear why the Pentagon had been unwilling to make its conclusions public. The
official story of the prisoners' deaths was full of unacknowledged
contradictions, and the centerpiece of the report -- a reconstruction of the
events -- was simply unbelievable.

According to the NCIS, each prisoner had fashioned a noose from torn sheets and
T-shirts and tied it to the top of his cell's eight-foot-high steel-mesh wall.
Each prisoner was able somehow to bind his own hands, and, in at least one case,
his own feet, then stuff more rags deep down into his own throat. We are then
asked to believe that each prisoner, even as he was choking on those rags,
climbed up on his washbasin, slipped his head through the noose, tightened it,
and leapt from the washbasin to hang until he asphyxiated. The NCIS report also
proposes that the three prisoners, who were held in non-adjoining cells, carried
out each of these actions almost simultaneously.

Al-Zahrani, according to the report, was discovered first, at 12:39 a.m., and
taken by several Alpha Block guards to the camp's detention medical clinic. No
doctors could be found there, nor the phone number for one, so a clinic staffer
dialed 911. During this time, other guards discovered Al-Utaybi. Still others
discovered Al-Salami a few minutes later. Although rigor mortis had already set
in -- indicating that the men had been dead for at least two hours -- the NCIS
report claims that an unnamed medical officer attempted to resuscitate one of
the men, and, in attempting to pry open his jaw, broke his teeth.

The fact that at least two of the prisoners also had cloth masks affixed to
their faces, presumably to prevent the expulsion of the rags from their mouths,
went unremarked by the NCIS, as did the fact that standard operating procedure
at Camp Delta required the Navy guards on duty after midnight to "conduct a
visual search" of each cell and detainee every ten minutes. The report claimed
that the prisoners had hung sheets or blankets to hide their activities and
shaped more sheets and pillows to look like bodies sleeping in their beds, but
it did not explain where they were able to acquire so much fabric beyond their
tightly controlled allotment, or why the Navy guards would allow such an obvious
and immediately observable deviation from permitted behavior. Nor did the report
explain how the dead men managed to hang undetected for more than two hours or
why the Navy guards on duty, having for whatever reason so grievously failed in
their duties, were never disciplined.

A separate report, the result of an "informal investigation" initiated by
Admiral Harris, found that standard operating procedures were violated that
night but concluded that disciplinary action was not warranted because of the
"generally permissive environment" of the cell block and the numerous
"concessions" that had been made with regard to the prisoners' comfort, which
"concessions" had resulted in a "general confusion by the guard and the JDG
staff over many of the rules that applied to the guard force's handling of the
detainees." According to Harris, even had standard operating procedures been
followed, "it is possible that the detainees could have successfully committed
suicide anyway."

This is the official story, adopted by NCIS and Guantanamo command and
reiterated by the Justice Department in formal pleadings, by the Defense
Department in briefings and press releases, and by the State Department. Now
four members of the Military Intelligence unit assigned to guard Camp Delta,
including a decorated non-commissioned Army officer who was on duty as sergeant
of the guard the night of June 9-10, have furnished an account dramatically at
odds with the NCIS report -- a report for which they were neither interviewed
nor approached.

All four soldiers say they were ordered by their commanding officer not to speak
out, and all four soldiers provide evidence that authorities initiated a cover-
up within hours of the prisoners' deaths. Army Staff Sergeant Joseph Hickman and
men under his supervision have disclosed evidence in interviews with Harper's
Magazine that strongly suggests that the three prisoners who died on June 9 had
been transported to another location prior to their deaths. The guards' accounts
also reveal the existence of a previously unreported black site at Guantanamo
where the deaths, or at least the events that led directly to the deaths, most
likely occurred.


2. "CAMP NO"

The soldiers of the Maryland-based 629th Military Intelligence Battalion arrived
at Guantanamo Naval Base in March 2006, assigned to provide security to Camp
America, the sector of the base containing the five individual prison compounds
that house the prisoners. Camp Delta was at the time the largest of these
compounds, and within its walls were four smaller camps, numbered 1 through 4,
which in turn were divided into cell blocks. Life at Camp America, as at all
prisons, was and remains rigorously routinized for both prisoners and their
jailers. Navy guards patrol the cell blocks and Army personnel control the
exterior areas of the camp. All observed incidents must be logged. For the Army
guards who man the towers and "sally ports" (access points), knowing who enters
and leaves the camp, and exactly when, is the essence of their mission.

One of the new guards who arrived that March was Joe Hickman, then a sergeant.
Hickman grew up in Baltimore and joined the Marines in 1983, at the age of
nineteen. When I interviewed him in January at his home in Wisconsin, he told me
he had been inspired to enlist by Ronald Reagan, "the greatest president we've
ever had." He worked in a military intelligence unit and was eventually tapped
for Reagan's Presidential Guard detail, an assignment reserved for model
soldiers. When his four years were up, Hickman returned home, where he worked a
series of security jobs -- prison transport, executive protection, and
eventually private investigations. After September 11 he decided to re-enlist,
at thirty-seven, this time in the Army National Guard.

Hickman deployed to Guantanamo with his friend Specialist Tony Davila, who grew
up outside Washington, D.C., and who had himself been a private investigator.
When they arrived at Camp Delta, Davila told me, soldiers from the California
National Guard unit they were relieving introduced him to some of the
curiosities of the base. The most noteworthy of these was an unnamed and
officially unacknowledged compound nestled out of sight between two plateaus
about a mile north of Camp Delta, just outside Camp America's perimeter. One
day, while on foot patrol, Hickman and Davila came across the compound. It
looked like other camps within Camp America, Davila said, only it had no guard
towers and it was surrounded with concertina wire. They saw no activity, but
Hickman guessed the place could house as many as eighty prisoners. One part of
the compound, he said, had the same appearance as the interrogation centers at
other prison camps.

The compound was not visible from the main road, and the access road was chained
off. The Guardsman who told Davila about the compound had said, "This place does
not exist," and Hickman, who was frequently put in charge of security for all of
Camp America, was not briefed about the site. Nevertheless, Davila said, other
soldiers -- many of whom were required to patrol the outside perimeter of Camp
America -- had seen the compound, and many speculated about its purpose. One
theory was that it was being used by some of the non-uniformed government
personnel who frequently showed up in the camps and were widely thought to be
CIA agents.

A friend of Hickman's had nicknamed the compound "Camp No," the idea being that
anyone who asked if it existed would be told, "No, it doesn't." He and Davila
made a point of stopping by whenever they had the chance; once, Hickman said, he
heard a "series of screams" from within the compound.

Hickman and his men also discovered that there were odd exceptions to their
duties. Army guards were charged with searching and logging every vehicle that
passed into and out of Camp Delta. "When John McCain came to the camp, he had to
be logged in." However, Hickman was instructed to make no record whatsoever of
the movements of one vehicle in particular -- a white van, dubbed the "paddy
wagon," that Navy guards used to transport heavily manacled prisoners, one at a
time, into and out of Camp Delta. The van had no rear windows and contained a
dog cage large enough to hold a single prisoner. Navy drivers, Hickman came to
understand, would let the guards know they had a prisoner in the van by saying
they were "delivering a pizza."

The paddy wagon was used to transport prisoners to medical facilities and to
meetings with their lawyers. But as Hickman monitored the paddy wagon's
movements from the guard tower at Camp Delta, he frequently saw it follow an
unexpected route. When the van reached the first intersection, instead of
heading right -- toward the other camps or toward one of the buildings where
prisoners could meet with their lawyers -- it made a left. In that direction,
past the perimeter checkpoint known as ACP Roosevelt, there were only two
destinations. One was a beach where soldiers went to swim. The other was Camp
No.


3. "LIT UP"

The night the prisoners died, Hickman was on duty as sergeant of the guard for
Camp America's exterior security force. When his twelve-hour shift began, at 6
p.m., he climbed the ladder to Tower 1, which stood twenty feet above Sally Port
1, the main entrance to Camp Delta. From there he had an excellent view of the
camp, and much of the exterior perimeter as well. Later he would make his
rounds.

Shortly after his shift began, Hickman noticed that someone had parked the paddy
wagon near Camp 1, which houses Alpha Block. A moment later, two Navy guards
emerged from Camp 1, escorting a prisoner. They put the prisoner into the back
of the van and then left the camp through Sally Port 1, just below Hickman. He
was under standing orders not to search the paddy wagon, so he just watched it
as it headed east. He assumed the guards and their charge were bound for one of
the other prison camps southeast of Camp Delta. But when the van reached the
first intersection, instead of making a right, toward the other camps, it made
the left, toward ACP Roosevelt and Camp No.

Twenty minutes later -- about the amount of time needed for the trip to Camp No
and back -- the paddy wagon returned. This time Hickman paid closer attention.
He couldn't see the Navy guards' faces, but from body size and uniform they
appeared to be the same men.

The guards walked into Camp 1 and soon emerged with another prisoner. They
departed Camp America, again in the direction of Camp No. Twenty minutes later,
the van returned. Hickman, his curiosity piqued by the unusual flurry of
activity and guessing that the guards might make another excursion, left Tower 1
and drove the three quarters of a mile to ACP Roosevelt to see exactly where the
paddy wagon was headed. Shortly thereafter, the van passed through the
checkpoint for the third time and then went another hundred yards, whereupon it
turned toward Camp No, eliminating any question in Hickman's mind about where it
was going. All three prisoners would have all reached their destination before 8
p.m.

Hickman says he saw nothing more of note until about 11:30 p.m, when he had
returned to his preferred vantage at Tower 1. As he watched, the paddy wagon
returned to Camp Delta. This time, however, the Navy guards did not get out of
the van to enter Camp 1. Instead they backed the vehicle up to the entrance of
the medical clinic, as if to unload something.

At approximately 11:45 p.m. -- nearly an hour before the NCIS claims the first
body was discovered -- Army Specialist Christopher Penvose, preparing for a
midnight shift in Tower 1, was approached by a senior Navy NCO. Penvose told me
that the NCO -- who, following standard operating procedures, wore no name tag
-- appeared to be extremely agitated. He instructed Penvose to go immediately to
the Camp Delta chow hall, identify a female senior petty officer who would be
dining there, and relay to her a specific code word. Penvose did as he was
instructed. The officer leapt up from her seat and immediately ran out of the
chow hall.

Another thirty minutes passed. Then, as Hickman and Penvose both recall, Camp
Delta suddenly "lit up" -- stadium-style flood lights were turned on, and the
camp became the scene of frenzied activity, filling with personnel in and out of
uniform. Hickman headed to the clinic, which appeared to be the center of
activity, to learn the reason for the commotion. He asked a distraught medical
corpsman what had happened. She said three dead prisoners had been delivered to
the clinic. Hickman recalled her saying that they had died because they had rags
stuffed down their throats, and that one of them was severely bruised. Davila
told me he spoke to Navy guards who said the men had died as the result of
having rags stuffed down their throats.

Hickman was concerned that such a serious incident could have occurred in Camp 1
on his watch. He asked his tower guards what they had seen. Penvose, from his
position at Tower 1, had an unobstructed view of the walkway between Camp 1 and
the medical clinic -- the path by which any prisoners who died at Camp 1 would
be delivered to the clinic. Penvose told Hickman, and later confirmed to me,
that he saw no prisoners being moved from Camp 1 to the clinic. In Tower 4 (it
should be noted that Army and Navy guard-tower designations differ), another
Army specialist, David Caroll, was forty-five yards from Alpha Block, the cell
block within Camp 1 that had housed the three dead men. He also had an
unobstructed view of the alleyway that connected the cell block itself to the
clinic. He likewise reported to Hickman, and confirmed to me, that he had seen
no prisoners transferred to the clinic that night, dead or alive.


4. "HE COULD NOT CRY OUT"

The fate of a fourth prisoner, a forty-two-year-old Saudi Arabian named Shaker
Aamer, may be related to that of the three prisoners who died on June 9. Aamer
is married to a British woman and was in the process of becoming a British
subject when he was captured in Jalalabad, Afghanistan, in 2001. United States
authorities insist that he carried a gun and served Osama bin Laden as an
interpreter. Aamer denies this. At Guantanamo, Aamer's fluency in English soon
allowed him to play an important role in camp politics. According to both
Aamer's attorney and press accounts furnished by Army Colonel Michael Bumgarner,
the Camp America commander, Aamer cooperated closely with Bumgarner in efforts
to bring a 2005 hunger strike to an end. He persuaded several prisoners to break
their strike for a while, but the settlement collapsed and soon afterward Aamer
was sent to solitary confinement. Then, on the night of June 9, 2006, Aamer says
he was the victim of an act of striking brutality.

He described the events in detail to his lawyer, Zachary Katznelson, who was
permitted to speak to him several weeks later. Katznelson recorded every detail
of Aamer's account and filed an affidavit with the federal district court in
Washington, setting it out:

On June 9th, 2006, [Aamer] was beaten for two and a half hours straight. Seven
naval military police participated in his beating. Mr. Aamer stated he had
refused to provide a retina scan and fingerprints. He reported to me that he was
strapped to a chair, fully restrained at the head, arms and legs. The MPs
inflicted so much pain, Mr. Aamer said he thought he was going to die. The MPs
pressed on pressure points all over his body: his temples, just under his
jawline, in the hollow beneath his ears. They choked him. They bent his nose
repeatedly so hard to the side he thought it would break. They pinched his
thighs and feet constantly. They gouged his eyes. They held his eyes open and
shined a mag-lite in them for minutes on end, generating intense heat. They bent
his fingers until he screamed. When he screamed, they cut off his airway, then
put a mask on him so he could not cry out.

The treatment Aamer describes is noteworthy because it produces excruciating
pain without leaving lasting marks. Still, the fact that Aamer had his airway
cut off and a mask put over his face "so he could not cry out" is alarming. This
is the same technique that appears to have been used on the three deceased
prisoners.

The United Kingdom has pressed aggressively for the return of British subjects
and persons of interest. Every individual requested by the British has been
turned over, with one exception: Shaker Aamer. In denying this request, U.S.
authorities have cited unelaborated "security" concerns. There is no suggestion
that the Americans intend to charge him before a military commission, or in a
federal criminal court, and, indeed, they have no meaningful evidence linking
him to any crime. American authorities may be concerned that Aamer, if released,
could provide evidence against them in criminal investigations. This evidence
would include what he experienced on June 9, 2006, and during his 2002 detention
in Afghanistan at Bagram Airfield, where he was subjected to a procedure in
which his head was smashed repeatedly against a wall. This torture technique,
called "walling" in CIA documents, was expressly approved at a later date by the
Department of Justice.


5. "YOU ALL KNOW"

By dawn, the news had circulated through Camp America that three prisoners had
committed suicide by swallowing rags. Colonel Bumgarner called a meeting of the
guards, and at 7 a.m. at least fifty soldiers and sailors gathered at Camp
America's open-air theater.

Bumgarner was known as an eccentric commander. Hickman marveled, for instance,
at the colonel's insistence that his staff line up and salute him, to music
selections that included Beethoven's Fifth Symphony and the reggae hit "Bad
Boys," as he entered the command center. This morning, however, Hickman thought
Bumgarner seemed unusually nervous and clipped.

According to independent interviews with soldiers who witnessed the speech,
Bumgarner told his audience that "you all know" three prisoners in the Alpha
Block at Camp 1 committed suicide during the night by swallowing rags, causing
them to choke to death. This was a surprise to no one -- even servicemen who had
not worked the night before had heard about the rags. But then Bumgarner told
those assembled that the media would report something different. It would report
that the three prisoners had committed suicide by hanging themselves in their
cells. It was important, he said, that servicemen make no comments or
suggestions that in any way undermined the official report. He reminded the
soldiers and sailors that their phone and email communications were being
monitored. The meeting lasted no more than twenty minutes. (Bumgarner has not
responded to requests for comment.)

That evening, Bumgarner's boss, Admiral Harris, read a statement to reporters:

An alert, professional guard noticed something out of the ordinary in the cell
of one of the detainees. The guard's response was swift and professional to
secure the area and check on the status of the detainee. When it was apparent
that the detainee had hung himself, the guard force and medical teams reacted
quickly to attempt to save the detainee's life. The detainee was unresponsive
and not breathing. [The] guard force began to check on the health and welfare of
other detainees. Two detainees in their cells had also hung themselves.

After praising the guards and the medics, Harris -- in a notable departure from
traditional military decorum -- launched his attack on the men who had died on
his watch. "They have no regard for human life," Harris said, "neither ours nor
their own." A Pentagon press release issued soon after described the dead men,
who had been accused of no crime, as Al Qaeda or Taliban operatives. Lieutenant
Commander Jeffrey Gordon, the Pentagon's chief press officer, went still
further, telling the Guardian's David Rose, "These guys were fanatics like the
Nazis, Hitlerites, or the Ku Klux Klan, the people they tried at Nuremberg." The
Pentagon was not the only U.S. government agency to participate in the assault.
Colleen Graffy, a deputy assistant secretary of state, told the BBC that "taking
their own lives was not necessary, but it certainly is a good P.R. move."

The same day the three prisoners died, Fox News commentator Bill O'Reilly
completed a reporting trip to the naval base, where, according to his account on
The O'Reilly Factor, the Joint Army Navy Task Force "granted the Factor near
total access to the prison." Although the Pentagon began turning away reporters
after news of the deaths had emerged, two reporters from the Charlotte Observer,
Michael Gordon and photographer Todd Sumlin, had arrived that morning to work on
a profile of Bumgarner, and the colonel invited them to shadow him as he dealt
with the crisis. A Pentagon spokesman later told the Observer it had been
expecting a "puff piece," which is why, according to the Observer, "Bumgarner
and his superiors on the base" had given them permission to remain.

Bumgarner quickly returned to his theatrical ways. As Gordon reported in the
June 13, 2006, issue of the Observer, the colonel seemed to enjoy putting on a
show. "Right now, we are at ground zero," Bumgarner told his officer staff
during a June 12 meeting. Referring to the naval base's prisoners, he said,
"There is not a trustworthy son of a bitch in the entire bunch." In the same
article, Gordon also noted what he had learned about the deaths. The suicides
had occurred "in three cells on the same block," he reported. The prisoners had
"hanged themselves with strips of knotted cloth taken from clothing and sheets,"
after shaping their pillows and blankets to look like sleeping bodies. "And
Bumgarner said," Gordon reported, "each had a ball of cloth in their mouth
either for choking or muffling their voices."

Something about Bumgarner's Observer interview seemed to have set off an alarm
far up the chain of command. No sooner was Gordon's story in print than
Bumgarner was called to Admiral Harris's office. As Bumgarner would tell Gordon
in a follow-up profile three months later, Harris was holding up a copy of the
Observer: "This," said the admiral to Bumgarner, "could get me relieved."
(Harris did not respond to requests for comment.) That same day, an
investigation was launched to determine whether classified information had been
leaked from Guantanamo. Bumgarner was suspended.

Less than a week after the appearance of the Observer stories, Davila and
Hickman each heard separately from friends in the Navy and in the military
police that FBI agents had raided the colonel's quarters. The MPs understood
from their FBI contacts that there was concern over the possibility that
Bumgarner had taken home some classified materials and was planning to share
them with the media or to use them in writing a book.

On June 27, two weeks later, Gordon's Observer colleague Scott Dodd reported: "A
brigadier general determined that ‘unclassified sensitive information' was
revealed to the public in the days after the June 10 suicides." Harris,
according to the article, had already ordered "appropriate administrative
action." Bumgarner soon left Guantanamo for a new post in Missouri. He now
serves as an ROTC instructor at Virginia Tech in Blacksburg.

Bumgarner's comments appear to be at odds with the official Pentagon narrative
on only one point: that the deaths had involved cloth being stuffed into the
prisoners' mouths. The involvement of the FBI suggested that more was at issue.


6. "AN UNMISTAKABLE MESSAGE"

On June 10, NCIS investigators began interviewing the Navy guards in charge of
Alpha Block, but after the Pentagon committed itself to the suicide narrative,
they appear to have stopped. On June 14, the interviews resumed, and the NCIS
informed at least six Navy guards that they were suspected of making false
statements or failing to obey direct orders. No disciplinary action ever
followed.

The investigators conducted interviews with guards, medics, prisoners, and
officers. As the Seton Hall researchers note, however, nothing in the NCIS
report suggests that the investigators secured or reviewed the duty roster, the
prisoner-transfer book, the pass-on book, the records of phone and radio
communications, or footage from the camera that continuously monitored activity
in the hallways, all of which could have helped them authoritatively re-
construct the events of that evening.

The NCIS did, however, move swiftly to seize every piece of paper possessed by
every single prisoner in Camp America, some 1,065 pounds of material, much of it
privileged attorney-client correspondence. Several weeks later, authorities
sought an after-the-fact justification. The Justice Department -- bolstered by
sworn statements from Admiral Harris and from Carol Kisthardt, the special agent
in charge of the NCIS investigation -- claimed in court that the seizure was
appropriate because there had been a conspiracy among the prisoners to commit
suicide. Justice further claimed that investigators had found suicide notes and
argued that the attorney-client materials were being used to pass communications
among the prisoners.

David Remes, a lawyer who opposed the Justice Department's efforts, explained
the practical effect of the government's maneuvers. The seizure, he said, "sent
an unmistakable message to the prisoners that they could not expect their
communications with their lawyers to remain confidential. The Justice Department
defended the massive breach of the attorney-client privilege on the account of
the deaths on June 9 and the asserted need to investigate them."

If the "suicides" were a form of warfare between the prisoners and the Bush
Administration, as Admiral Harris charged, it was the latter that quickly turned
the war to its advantage.


7. "YASSER COULDN'T EVEN MAKE A SANDWICH!"

When I asked Talal Al-Zahrani what he thought had happened to his son, he was
direct. "They snatched my seventeen-year-old son for a bounty payment," he said.
"They took him to Guantanamo and held him prisoner for five years. They tortured
him. Then they killed him and returned him to me in a box, cut up."

Al-Zahrani was a brigadier general in the Saudi police. He dismissed the
Pentagon's claims, as well as the investigation that supported them. Yasser, he
said, was a young man who loved to play soccer and didn't care for politics. The
Pentagon claimed that Yasser's frontline battle experience came from his having
been a cook in a Taliban camp. Al-Zahrani said that this was preposterous: "A
cook? Yasser couldn't even make a sandwich!"

"Yasser wasn't guilty of anything." Al-Zahrani said. "He knew that. He firmly
believed he would be heading home soon. Why would he commit suicide?" The
evidence supports this argument. Hyperbolic U.S. government statements at the
time of Yasser Al-Zahrani's death masked the fact that his case had been
reviewed and that he was, in fact, on a list of prisoners to be sent home. I had
shown Al-Zahrani the letter that the government says was Yasser's suicide note
and asked him whether he recognized his son's writing. He had never seen the
note before, he answered, and no U.S. official had ever asked him about it.
After studying the note carefully, he said, "This is a forgery."

Also returned to Saudi Arabia was the body of Mani Al-Utaybi. Orphaned in youth,
Mani grew up in his uncle's home in the small town of Dawadmi. I spoke to one of
the many cousins who shared that home, Faris Al-Utaybi. Mani, said Faris, had
gone to Baluchistan -- a rural, tribal area that straddles Iran, Pakistan, and
Afghanistan -- to do humanitarian work, and someone there had sold him to the
Americans for $5,000. He said that Mani was a peaceful man who would harm no
one. Indeed, U.S. authorities had decided to release Al-Utaybi and return him to
Saudi Arabia. When he died, he was just a few weeks shy of his transfer.

Salah Al-Salami was seized in March 2002, when Pakistani authorities raided a
residence in Karachi believed to have been used as a safe house by Abu Zubaydah
and took into custody all who were living there at the time. A Yemeni, Al-Salami
had quit his job and moved to Pakistan with only $400 in his pocket. The U.S.
suspicions against him rested almost entirely on the fact that he had taken
lodgings, with other students, in a boarding house that terrorists might at one
point have used. There was no direct evidence linking him either to Al Qaeda or
to the Taliban. On August 22, 2008, the Washington Post quoted from a previously
secret review of his case: "There is no credible information to suggest [Al-
Salami] received terrorist related training or is a member of the Al Qaeda
network." All that stood in the way of Al-Salami's release from Guantanamo were
difficult diplomatic relations between the United States and Yemen.


8. "THE REMOVAL OF THE NECK ORGANS"

Military pathologists connected with the Armed Forces Institute of Pathology
arranged immediate autopsies of the three dead prisoners, without securing the
permission of the men's families. The identities and findings of the
pathologists remain shrouded in extraordinary secrecy, but the timing of the
autopsies suggests that medical personnel stationed at Guantanamo may have
undertaken the procedure without waiting for the arrival of an experienced
medical examiner from the United States. Each of the heavily redacted autopsy
reports states unequivocally that "the manner of death is suicide" and, more
specifically, that the prisoner died of "hanging." Each of the reports describes
ligatures that were found wrapped around the prisoner's neck, as well as
circumferential dried abrasion furrows imprinted with the very fine weave
pattern of the ligature fabric and forming an inverted "V" on the back of the
head. This condition, the anonymous pathologists state, is consistent with that
of a hanging victim.

The pathologists place the time of death "at least a couple of hours" before the
bodies were discovered, which would be sometime before 10:30 p.m. on June 9.
Additionally, the autopsy of Al-Salami states that his hyoid bone was broken, a
phenomenon usually associated with manual strangulation, not hanging.

The report asserts that the hyoid was broken "during the removal of the neck
organs." An odd admission, given that these are the very body parts -- the
larynx, the hyoid bone, and the thyroid cartilage -- that would have been
essential to determining whether death occurred from hanging, from
strangulation, or from choking. These parts remained missing when the men's
families finally received their bodies.

All the families requested independent autopsies. The Saudi prisoners were
examined by Saeed Al-Ghamdy, a pathologist based in Saudi Arabia. Al-Salami,
from Yemen, was inspected by Patrice Mangin, a pathologist based in Switzerland.
Both pathologists noted the removal of the structure that would have been the
natural focus of the autopsy: the throat. Both pathologists contacted the Armed
Forces Institute of Pathology, requesting the missing body parts and more
information about the previous autopsies. The institute did not respond to their
requests or queries. (It also did not respond to a series of calls I placed
requesting information and comment.)

When Al-Zahrani viewed his son's corpse, he saw evidence of a homicide. "There
was a major blow to the head on the right side," he said. "There was evidence of
torture on the upper torso, and on the palms of his hand. There were needle
marks on his right arm and on his left arm." None of these details are noted in
the U.S. autopsy report. "I am a law enforcement professional," Al-Zahrani said.
"I know what to look for when examining a body."

Mangin, for his part, expressed particular concern about Al-Salami's mouth and
throat, where he saw "a blunt trauma carried out against the oral region." The
U.S. autopsy report mentions an effort at resuscitation, but this, in Mangin's
view, did not explain the severity of the injuries. He also noted that some of
the marks on the neck were not those he would normally associate with hanging.


9. "I KNOW SOME THINGS YOU DON'T"

Sergeant Joe Hickman's tour of duty, which ended in March 2007, was
distinguished: he was selected as Guantanamo's "NCO of the Quarter" and was
given a commendation medal. When he returned to the United States, he was
promoted to staff sergeant and worked in Maryland as an Army recruiter before
settling eventually in Wisconsin. But he could not forget what he had seen at
Guantanamo. When Barack Obama became president, Hickman decided to act. "I
thought that with a new administration and new ideas I could actually come
forward, " he said. "It was haunting me."

Hickman had seen a 2006 report from Seton Hall University Law School dealing
with the deaths of the three prisoners, and he followed their subsequent work.
After Obama was inaugurated in January 2009, he called Mark Denbeaux, the
professor who had led the Seton Hall team. "I learned something from your
report," he said, "but I know some things you don't."

Within two days, Hickman was in Newark, meeting with Denbeaux. Also at the
meeting was Denbeaux's son and sometime co-editor Josh, a private attorney. Josh
Denbeaux agreed to represent Hickman, who was concerned that he could go to
prison if he disobeyed Colonel Bumgarner's order not to speak out, even if that
order was itself illegal. Hickman did not want to speak to the press. On the
other hand, he felt that "silence was just wrong."

The two lawyers quickly made arrangements for Hickman to speak instead with
authorities in Washington, D.C. On February 2, they had meetings on Capitol Hill
and with the Department of Justice. The meeting with Justice was an odd one. The
father-and-son legal team were met by Rita Glavin, the acting head of the
Justice Department's Criminal Division; John Morton, who was soon to become an
assistant secretary at the Department of Homeland Security; and Steven Fagell,
counselor to the head of the Criminal Division. Fagell had been, along with the
new attorney general, Eric Holder, a partner at the elite Washington law firm of
Covington & Burling, and was widely viewed as "Holder's eyes" in the Criminal
Division.

For more than an hour, the two lawyers described what Hickman had seen: the
existence of Camp No, the transportation of the three prisoners, the van's
arrival at the medical clinic, the lack of evidence that any bodies had ever
been removed from Alpha Block, and so on. The officials listened intently and
asked many questions. The Denbeauxs said they could provide a list of witnesses
who would corroborate every aspect of their account. At the end of the meeting,
Mark Denbeaux recalled, the officials specifically thanked the lawyers for not
speaking to reporters first and for "doing it the right way."

Two days later, another Justice Department official, Teresa McHenry, head of the
Criminal Division's Domestic Security Section, called Mark Denbeaux and said
that she was heading up an investigation and wanted to meet directly with his
client. She went to New Jersey to do so. Hickman then reviewed the basic facts
and furnished McHenry with the promised list of corroborating witnesses and
details on how they could be contacted.

The Denbeauxs did not hear from anyone at the Justice Department for at least
two months. Then, in April, an FBI agent called to say she did not have the list
of contacts. She asked if this document could be provided again. It was. Shortly
thereafter, Fagell and two FBI agents interviewed Davila, who had left the Army,
in Columbia, South Carolina. Fagell asked Davila if he was prepared to travel to
Guantanamo to identify the locations of various sites. He said he was. "It
seemed like they were interested," Davila told me. "Then I never heard from them
again."

Several more months passed, and Hickman and his lawyers became increasingly
concerned that nothing was going to happen. On October 27, 2009, they resumed
dealings with Congress that they had initiated on February 2 and then broken off
at the Justice Department's request; they were also in contact with ABC News.
Two days later, Teresa McHenry called Mark Denbeaux and asked whether he had
gone to Congress and ABC News about the matter. "I said that I had," Denbeaux
told me. He asked her, "Was there anything wrong with that?" McHenry then
suggested that the investigation was finished. Denbeaux reminded her that she
had yet to interview some of the corroborating witnesses. "There are a few small
things to do," Denbeaux says McHenry answered, "then it will be finished."

Specialist Christopher Penvose told me that on October 30, the day following the
conversation between Mark Denbeaux and Teresa McHenry, McHenry showed up at
Penvose's home in south Baltimore with some FBI agents. She had a "few
questions," she told him. Investigators working with her soon contacted two
other witnesses.

On November 2, 2009, McHenry called Mark Denbeaux to tell him that the Justice
Department's investigation was being closed. "It was a strange conversation,"
Denbeaux recalled. McHenry explained that "the gist of Sergeant Hickman's
information could not be confirmed." But when Denbeaux asked what that "gist"
actually was, McHenry declined to say. She just reiterated that Hickman's
conclusions "appeared" to be unsupported. Denbeaux asked what conclusions
exactly were unsupported. McHenry refused to say.


10. "THEY ACCOMPLISHED NOTHING"

One of the most intriguing aspects of this case concerns the use of Camp No.
Under George W. Bush, the CIA created an archipelago of secret detention centers
that spanned the globe, and authorities at these sites deployed an array of
Justice Department -- sanctioned torture techniques -- including waterboarding,
which often entails inserting cloth into the subject's mouth -- on prisoners
they deemed to be involved in terrorism. The presence of a black site at
Guantanamo has long been a subject of speculation among lawyers and human-rights
activists, and the experience of Sergeant Hickman and other Guantanamo guards
compels us to ask whether the three prisoners who died on June 9 were being
interrogated by the CIA, and whether their deaths resulted from the grueling
techniques the Justice Department had approved for the agency's use -- or from
other tortures lacking that sanction.

Complicating these questions is the fact that Camp No might have been controlled
by another authority, the Joint Special Operations Command, which Bush's defense
secretary, Donald Rumsfeld, had hoped to transform into a Pentagon version of
the CIA. Under Rumsfeld's direction, JSOC began to take on many tasks
traditionally handled by the CIA, including the housing and interrogation of
prisoners at black sites around the world. The Pentagon recently acknowledged
the existence of one such JSOC black site, located at Bagram Airfield in
Afghanistan, and other suspected sites, such as Camp Nama in Baghdad, have been
carefully documented by human-rights researchers.

In a Senate Armed Services Committee report on torture released last year, the
sections about Guantanamo were significantly redacted. The position and
circumstances of these deletions point to a significant JSOC interrogation
program at the base. (It should be noted that Obama's order last year to close
other secret detention camps was narrowly worded to apply only to the CIA.)

Regardless of whether Camp No belonged to the CIA or JSOC, the Justice
Department has plenty of its own secrets to protect. The department would seem
to have been involved in the cover-up from the first days, when FBI agents
stormed Colonel Bumgarner's quarters. This was unusual for two reasons. When
Pentagon officials engage in a leak investigation, they generally use military
investigators. They rarely turn to the FBI, because they cannot control the
actions of a civilian agency. Moreover, when the FBI does open an investigation,
it nearly always does so with great discretion. The Bumgarner investigation was
widely telegraphed, though, and seemed intended to send a message to the
military personnel at Camp Delta: Talk about what happened at your own risk. All
of which suggests it was not the Pentagon so much as the White House that hoped
to suppress the truth.

In the weeks following the 2006 deaths, the Justice Department decided to use
the suicide narrative as leverage against the Guantanamo prisoners and their
troublesome lawyers, who were pressing the government to justify its long-term
imprisonment of their clients. After the NCIS seized thousands of pages of
privileged communications, the Justice Department went to court to defend the
action. It argued that such steps were warranted by the extraordinary facts
surrounding the June 9 "suicides." U.S. District Court Judge James Robertson
gave the Justice Department a sympathetic hearing, and he ruled in its favor,
but he also noted a curious aspect of the government's presentation: its
"citations supporting the fact of the suicides" were all drawn from media
accounts. Why had the Justice Department lawyers who argued the case gone to
such lengths to avoid making any statement under oath about the suicides? Did
they do so in order to deceive the court? If so, they could face disciplinary
proceedings or disbarment.

The Justice Department also faces questions about its larger role in creating
the circumstances that lead to the use of so-called enhanced interrogation and
restraint techniques at Guantanamo and elsewhere. In 2006, the use of a gagging
restraint had already been connected to the death on January 9, 2004, of an
Iraqi prisoner, Lieutenant Colonel Abdul Jameel, in the custody of the Army
Special Forces. And the bodies of the three men who died at Guantanamo showed
signs of torture, including hemorrhages, needle marks, and significant bruising.
The removal of their throats made it difficult to determine whether they were
already dead when their bodies were suspended by a noose. The Justice Department
itself had been deeply involved in the process of approving and setting the
conditions for the use of torture techniques, issuing a long series of memoranda
that CIA agents and others could use to defend themselves against any subsequent
criminal prosecution.

Teresa McHenry, the investigator charged with accounting for the deaths of the
three men at Guantanamo, has firsthand knowledge of the Justice Department's
role in auditing such techniques, having served at the Justice Department under
Bush and having participated in the preparation of at least one of those memos.
As a former war-crimes prosecutor, McHenry knows full well that government
officials who attempt to cover up crimes perpetrated against prisoners in
wartime face prosecution under the doctrine of command responsibility. (McHenry
declined to clarify the role she played in drafting the memos.)

As retired Rear Admiral John Hutson, the former judge advocate general of the
Navy, told me, "Filing false reports and making false statements is bad enough,
but if a homicide occurs and officials up the chain of command attempt to cover
it up, they face serious criminal liability. They may even be viewed as
accessories after the fact in the original crime." With command authority comes
command responsibility, he said. "If the heart of the military is obeying orders
down the chain of command, then its soul is accountability up the chain. You
can't demand the former without the latter."

The Justice Department thus faced a dilemma; it could do the politically
convenient thing, which was to find no justification for a thorough
investigation, leave the NCIS conclusions in place, and hope that the public and
the news media would obey the Obama Administration's dictum to "look forward,
not backward"; or it could pursue a course of action that would implicate the
Bush Justice Department in a cover-up of possible homicides.

Nearly 200 men remain imprisoned at Guantanamo. In June 2009, six months after
Barack Obama took office, one of them, a thirty-one-year-old Yemeni named
Muhammed Abdallah Salih, was found dead in his cell. The exact circumstances of
his death, like those of the deaths of the three men from Alpha Block, remain
uncertain. Those charged with accounting for what happened -- the prison
command, the civilian and military investigative agencies, the Justice
Department, and ultimately the attorney general himself -- all face a choice
between the rule of law and the expedience of political silence. Thus far, their
choice has been unanimous.

Not everyone who is involved in this matter views it from a political
perspective, of course. General Al-Zahrani grieves for his son, but at the end
of a lengthy interview he paused and his thoughts turned elsewhere. "The truth
is what matters," he said. "They practiced every form of torture on my son and
on many others as well. What was the result? What facts did they find? They
found nothing. They learned nothing. They accomplished nothing."

* * *